In this episode, Chamberlains’ Managing Director, Stipe Vuleta, is joined by Adrian McKenna, founding partner of McKenna Taylor Lawyers, to discuss the recent developments surrounding Cannabis use in the ACT. 

As with all Chamberlains Lawcast episodes, the information provided cannot be considered as legal advice, if you have any questions in relation to any information provided, please contact our office on 02 6188 3600. 

Presented by; Stipe Vuleta ft. Adrian McKenna
Date; 06/10/2020
at Chamberlains Law Firm, Canberra, ACT. 

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Stipe Vuleta: Good morning listeners. I’m Stipe Vuleta from Chamberlain’s law firm, and I’m very excited to have everyone here for the Chamberlain’s law cast, apologies on behalf of Mr. Hugh Smith, our regular presenter, he couldn’t make it today, but very excited to have Adrian McKenna founding partner from McKenna Taylor lawyers, a specialist criminal law firm in the nation’s capital and expanding in the region. Adrian, how are you going today? 

Adrian McKenna: I’m great Stipe thanks for having me on this podcast. I’m excited to have a chat about this new area for Canberra and really the rest of the country.  

Stipe Vuleta: Yeah, it’s pretty, it’s pretty exciting. Should we tell listeners, I mean, we’re going to be chatting about cannabis and not just cannabis, but the limits of the recent legislation, the legalization of cannabis in the Australian capital territory.  

Adrian McKenna: Yeah. I mean, to be honest, I didn’t expect that I’d be having a chat like this a few years ago. Um, Australia, probably to put it fairly, not exactly been leading the way with cannabis legalization or reform in the world. But, um, I think it’s fair to call this a fantastic small first step in the right direction.  

Stipe Vuleta: Well, I guess now that we’re talking about this small step, um, what is it? Can you tell us a bit about what’s been implemented?  

Adrian McKenna: Yeah, sure. So, Canberra has for at least a few decades now been close to having a legalization of low level cannabis use and personal use of sortsSo it used to be the case for the last 25 odd years that, uh, if you possessed, uh, less than 50 grams of cannabis on yourself, or you had one or two, uh, cannabis plants that you’ve been cultivating at your own place, uh, basically the penalty was a fine only so, or recently $150. So not a big deal, but technically still a criminal offense. 

Adrian McKenna: Now police could issue an infringement notice, they could take you to court for it. You could still get a criminal conviction for it so very much still a crime, but the next step has been taken. That is, well, now it’s not a crime at all. If you’ve got a it’s less than 50 grams, um, possessing cannabis, and that’s you as an individual, not with your mates and so on. 

Adrian McKenna: Um, or if you’re growing one or two cultivating one or two cannabis plants, at your premises say in your backyard, um, for adults. And there are some limitations of course, to this, um, as a starting point, that is not a crime in the ACT, at least on the ACT law. And we’ll get onto the complication soon enough, that arises, but, um, a small step. Um, but you can actually say that that part of cannabis use and possession and cultivation, it’s now legalized.  

Stipe Vuleta: Wow, I mean, as much as you say, it’s a small step in the context of Australia’s enforcement of many drugs of addiction and other drugs, it seems like a somewhat big step. So I’m sure there are a lot of industry participants that are quite excited. Uh, but tell us a bit more about, you know, the limitations in and around the local legislation.  

Adrian McKenna: Sure. So, so the first rule as I said before, or you have to, um, when it comes to cultivating plants you have to live at the premises where you’re cultivating. Um, so for example, if you’re in a share house with four people, that’s fine. Um, you can only as an individual grow one or two cannabis plants, you can’t have responsibility for more than that. And the household in total can have four plants. Um, so for example, if, of course, if there are four people, that’s one each, it can’t be one person has three, another person has one, right. 

Adrian McKenna: That has actually complications of, all right, well, how do you establish if police turned up at the house and there were four plants, how do you establish, who owns, what plant? How do you establish that, oh, these two are mine? Uh, these two, uh, uh, Ms. Smith’s next door to me. Um, so there might need to be some work for people who are going down this road, might be silly, but having a name tag or something, I mean, who knows next to your plants? 

Adrian McKenna: This is Adrian’s one and two cannabis plants. This is miss Smith’s. Um, once you’ve cut off, uh, cannabis from the plant that you’ve cultivated, uh, you are while it’s still wet, recently removed, allowed to have 150 grams. And that recognizes that, um, you know, it’s not quite reasonable to have two giant plants in your backyard, but only allowed to have 50 grams of that, of those giant plants at a time. So they’ll have that sort of transitional phase of recently harvested wet cannabis.  

Adrian McKenna: You can have 150 grams once it’s dried, though. I guess these are gray areas. Uh, 50 grand is the maximum now you’re allowed to consume it at home. You can’t smoke it in public. Um, um, you can’t have your cannabis, either your plants or the cannabis that you’ve, you’re storing for personal use, accessible to people under the age of 18. 

Adrian McKenna: Um, so for example, if you’ve got kids in the house. In theory, it’s possible to get away with it, but it would have to be locked away and you don’t have to smoke where they can’t reasonably consume the fumes. So obviously that would make it difficult if you’ve got children. Um, and obviously the same laws about crimes against supplying as in giving. Your cannabis to someone else applied, can’t sell it. Of course. Um, that that’s the nuts and bolts of it.  

Stipe Vuleta: It sounds deceptively simple, but, but what you’re really saying is it’s, it’s probably more than the proverbial Tupperware container in the fridge, in the office, you know, telling people that it’s, you know, your, your cannabis, it has to be secure and identified and you have to have, I guess, custody and possession of that in, right. 

Adrian McKenna:  It doesn’t have to be secure per se. It’s just adults in the house, but. But if you want to be careful, um, and, and, and, and make clear that this is on the and I’m missing your poor house mate who, has nothing to do with the operation is going to get done for it. You know, uh, having a little name, uh, on it, can’t hurt. Having it in your bedroom obviously is a good start. 

Stipe Vuleta: Well, you know, you raise, you raise a comfortable spot for a segue to my next question, which is the limits of legislation. I think it’s quite exciting, but it interacts with federal law and that’s quite exotic in the territory, but also its interaction withYou know, effectively capitalism, commercial enterprise also very different. So, I mean, take us through that, Adrian.  

Adrian McKenna: Yeah. I mean, there’s a few elephants in the room, I guess I’m one of them that have different shapes and sizes, but one of them is that, whilst it’s legalized under ACT law. It’s still a crime under Commonwealth legislation, which seems a bit odd and I’ll be the first to admit it, that, that is odd. 

Adrian McKenna: Um, so basically, uh, police have the power to charge anyone under any state or territory under the state crimes that you’re in, or territory, or the federal or Commonwealth, uh, offense provisions, whether you’re in Tasmania, Queensland, whatever. So technically, even though if I’m there with Ms. Smith in my house and I’ve done everything right with marking my stuff, in theory, a police officer can say, well, you have still committed the offense of possessing, a prohibited drug or controlled drug under the Commonwealth criminal code. 

Adrian McKenna: That’s an offense that still is a crime. It carries a maximum of up to two years in prison. I say in theory, because it hasn’t happened since this legislation’s coming, as far as I’m aware since the beginning of the year, but equally this two year maximum penalty offense has been in place forever. And it’s very rarely if ever being applied during the 25 years before, as I said earlier, um, when it was only $150 fine. 

Adrian McKenna: Right. Under ACT legislation. So, can any guarantees be made to Canberra citizens? I suppose, technically not, but my sense of it is that police are taking a common sense approach to this. Now there are technically, some defenses you can raise under Commonwealth law, that haven’t been tested in this context. That is if something is a crime under Commonwealth law, but lawful under state or territory law, you can say that that’s potentially a legal defense to the charge, or if you believed that it was as an individual, that it was. 

Adrian McKenna: Uh, lawful under the state or territory law. Big gamble to of course be the one to test that, but it’s a great unknown. Um, so it is a slightly awkward place. And then there’s the politics of it. So, some months ago, the Commonwealth attorney general Christian Porter was. Uh, speaking out how he believed Australian federal police officers in Canberra should be enforcing Commonwealth law, obviously ACT, uh, politicians urged against it very much. 

Adrian McKenna: And there’s been a lot of public correspondence between the two. Then there’s the, uh, other elephant, um, of the Commonwealth having the power and this is something I’m that only applies to territories, of being able to override, believe it or not any ACT law. Can’t do it, in the States and can do it to the ACT and they can do with the Northern territory. 

Adrian McKenna: And they’ve done it before. They’ve overridden euthanasia laws in the Northern territory. The ACT came in with same-sex legislation, um, uh, civil unions. I should clarify many years before, um, uh, the changes that went through the rest of the country that was overwritten by the Commonwealth government. So at any time, this party could be over. 

Adrian McKenna: If there’s, the, political will. And I say that in a negative sense, um, to want to stamp on this attempt to try and take a step in the right direction. In my view, if I can just complete the, a, the point of the, third, um, potential, elephant in the room that is if you’re supposed to be growing your cannabis in your backyard and harvesting it and smoking it, where do you get it from? What’s the law that says, you may lawfully purchase some seedlings from Joe blow down in South Canberra. There ain’t one. Um, um, obviously there’s things to iron out here and it is only a beginning.  

Stipe Vuleta: No, I mean, you raise a number of very interesting legal points and, and frankly, the plethora of complications from the criminal law and enforcement perspective is. 

Adrian McKenna: Well, just interesting. It’s very interesting. Someone who’s not knowledgeable in the area. I could listen to you talk about this type of stuff all day, but what really concerns me is, I guess the fact that there isn’t clarity for our commercial clients and those clients that we help in their strategic investment in the territory or in the cannabis sector, whether it’s medicinal or whether it’s for recreational use, who are keen to start, making developments in Australian markets. But as you said, there isn’t a natural entry point yet is there? It’s, it’s really some, some novel ideas about accessibility and sharing information, sharing, land, sharing, access, um, rather than opening up the scope for a full scale recreational cannabis market in the ACT. 

Adrian McKenna: It’s a good point. It’s a lovely idea. And I don’t mean to be overly critical about it. A lovely idea that we want to encourage only personal use, but I mean, that’s thinking of it a bit in a vacuum there. Where does this come from? Where does cannabis come from? Um, how do a lot of people, I mean, what about people who live in apartments and cant possibly grow, wherever you are kids, um, how do they get access to cannabis in a safe way? 

Adrian McKenna: If harm and minimization is the goal. So, um, I think it would be a serious mistake to say, great, we’ve got a mechanism for some personal use and cultivation, job done! Uh, let’s rest on our laurels and assume it’s over. There’s a tonne of work that needs to be done here. Um, and I say needs to, because still again, we all sort of wander through, or at least a lot of our politicians do, saying simple things and believing simple things, ‘drugs are bad, war on drugs’. Um, we’re going to win the war on drugs. Everyone knows it’s a joke to think of it that way. Um, and is it a nasty concept to talk about commercialization of this field? Some might say so others might say, well, you’re actually starting to get into real harm minimization. If you go down that path.  

Stipe Vuleta: Yeah, well, I guess, um, as final comments for me, I’ve always thought about, you know, access, you know, as lawyers we talk about access to justice, because we operate in an industry, which is very expensive and you know, a lot of people may not have access to it for purely socioeconomic or demographic grounds. But, um, when you’re talking about something that’s targeted about harm minimization, then, access in a safe, consistent way really does lend itself to the concept of commercialization. And so, you know, probably it’s something to talk about at the subsequent podcast, but, but some interesting developments that are happening maybe happening some, some general discussion about what, what might be on the horizon for harm minimization and commercialization in the ACT. We’d love to have you back. 

Adrian McKenna: Yeah. I’d love to be back. It’s a, a real watch this space area. And hopefully there is something more to report on soon enough, hopefully in another jurisdiction as well. Come on board I say, join us! Stipe, thank you very much for having me on. It’s been a really great chat and I hopefully look forward to having another one. 

Stipe Vuleta: Adrian. Yeah. Thanks for coming on board and chatting with us today. And I’m excited to chat again with you and listeners, thanks for listening to this special edition of law cast and, and keep an eye out and, your ears listening for another development in this space. When we have Adrian back on. 

Chamberlains: We hope you enjoyed the podcast as with all Chamberlain’s law firm podcast. The information that you’ve heard in this podcast is not legal advice and cannot be considered legal advice. If you have any questions or queries, please do not hesitate to contact our office on 02 6188 3600 or otherwiselook us up on our website, which is