A question of tension: When will the feds let the ACT govern itself?

The ACT is heading for yet another stand-off with the feds, with a Commonwealth government agency shaping up to scuttle another initiative of the ACT government. This time the ACT’s very own police force is shaping up to scuttle the ACT government’s plans to take cannabis out of the hands of organised crime and instead regulate it according to public health principles. We have seen the ACT and Northern Territory governments dragged back into line on euthanasia and same-sex marriage. This time it is the turn of the government sponsored bill to legalise the personal use of cannabis.

There is absolutely no doubt that the Commonwealth can keep the Territories on a short leash given its plenary power under section 122 of the Constitution. Territories are creatures of the Commonwealth so that the powers of self-government that they are granted can always be withdrawn.

The difference this time is that the possible, even likely, extinguishment of the ACT initiative comes not from legislation passed specifically to override an ACT law but from Commonwealth executive action to implement Commonwealth legislation that has been in place for 15 years. Here is a case therefore of the ACT democratic will being frustrated from the grave by an act of the Howard government.

A bit of history helps understand the current predicament. Traditionally, drug laws have been enacted and enforced by States initially under the guise of restricting access to poisons. The only legislative role of the Commonwealth was to control the national border through customs and now Border Force and in the investigation and prosecution of corrupt practices crossing state borders by the National Crime Authority. This approach continued after the advent of international regulation of addictive drugs by means of multilateral treaties. The Commonwealth alone has competence to assume treaty obligations. For all that, it was not until the Howard government came along that the practice that had existed since Federation of relying upon State and Territory laws to give effect to those treaty obligations was upset. State rights were at stake.

The challenge for the Commonwealth was always to ensure that State legislative action was adequate. To that end it often encouraged, through the Council of Australian Governments, the development of model legislation for states and territories to adopt. This is precisely the process that was embarked upon in 1990 when the Standing Committee of Attorneys-Generals entrusted to a committee of officials the development of model drug laws.

The committee presented draft model legislation in 1998. This was around the time when drug policy had risen to national prominence courtesy of:

• the Prime Minister vetoing the heroin trial promoted by the ACT Liberal Chief Minister, Kate Carnell,

• the inopportune comments of the Chair of the National Crime Authority contradicting the government’s narrative that, with the heroin drought, its law enforcement effort was at last controlling the import of drugs,

• the advent of crystal methamphetamine and

• controversy about the establishment of the medically supervised injecting centre in Sydney.

Crystal meths that flooded in during the heroin drought is a highly addictive stimulant associated with serious mental health problems and violence.

Model legislation produced by the officials’ working party was available at an opportune time when the Commonwealth government, alarmed at States and Territories wandering from its narrow view of the drug treaties, saw the opportunity of overturning a century of convention and enacting the Commonwealth’s very own drug legislation extending all the way from the border down to street level dealing. It did so in the guise of the extravagantly named, Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005. The constitutional authority to underpin this legislative grab for power was the external affairs power.

At the time, many believed that the medically supervised injecting room in King’s Cross, condemned by the then International Narcotics Control Board, was in the sights of the Commonwealth government. Whatever the Howard government’s thinking, the Commonwealth never moved to close down the Sydney Medical Centre as it was perfectly entitled to do under its so-called serious drug crimes legislation.

Families and Friends for Drug Law Reform began in March 1995 following the death by overdose of eight young people in Canberra. At the request of one father, Michael Moore, then Independent Member of the ACT Legislative Assembly, called a meeting to include families who had been affected. Forty people attended this first meeting which was the beginning of Families and Friends for Drug Law Reform. All in at-tendance believed that the drug laws were more the problem than the solution and called for change. They wanted laws and policies that caused less harm. They wanted addiction to be treated as a health and social issue not a law enforcement one. They believed that the huge profits made by the ille-gal trade made drugs more available to their kids. Their efforts continue today. If not already please consider becoming a member via the website ffdlr.org.au or sign in as a supporter.