The Canberra Liberals on Tuesday unsuccessfully moved to pause the ACT Government’s controversial hard drug decriminalisation until after the election; on Thursday, their Federal colleagues tried to repeal the legislation.

Federal Shadow Attorney-General Senator Michaelia Cash introduced a private senators’ bill to overturn the law.

However, the bill will not pass because the federal government, Greens, and parts of the crossbench do not support it.

Senator Cash’s bill has been seen as an attack on territory rights and undermining the ACT’s right to govern for itself – including by the Canberra Liberals.

Liberal opposition to drug decriminalisation

Next month, the ACT will become the first jurisdiction in Australia to decriminalise hard drugs, including methamphetamine (ice) and heroin. Senator Cash’s Bill seeks to modify the operation of the Drugs of Dependence (Personal Use) Amendment Act 2022 (ACT).

“Our nation’s capital should not be the drug capital,” Senator Cash said.

The Drugs of Dependence (Personal Use) Amendment Act, passed last year, is scheduled to come into effect at the end of October.

Those caught in possession of small amounts of illicit drugs – including heroin and ice – might pay a Simple Drug Offence Notice fine of $100 or attend an assessment and harm reduction session, rather than face a two-year prison sentence. It does not legalise the consumption or sale of any illicit drug.

The ACT Government says treating drug use as a health issue, rather than a criminal offence, will make it easier for drug users to access health support.

The Canberra Liberals, the police, and bereaved families have expressed concern that decriminalisation will make drugs more available, encourage drug use, and increase crime rates.

Senator Cash seeks to introduce a clause: “The Drugs of Dependence (Personal Use) Amendment Act 2022 (ACT) has no force or effect as a law of the Australian Capital Territory, except as regards the lawfulness or validity of anything done in accordance with that Act before the commencement of this Act.”

“It doesn’t affect territory rights,” Senator Cash said. “It doesn’t amend the powers of the ACT Legislative Assembly. It says that a bad law that will harm Australians has no effect.”

The Senator states that the ACT drug laws would water down current drug offences (replacing an $8,000 fine and imprisonment for two years with a “parking fine scheme”). Furthermore, people would be able to carry up to 1.5 grams of ice, 1.5 grams of cocaine, or 1 gram of heroin (up to five times the average lethal dose of heroin, according to the US Department of Justice).

The ACT Government’s reforms decriminalised meth, which the ACT Law Society opposed, while the Australian Medical Association regarded meth as very harmful, and opposed normalising its use or minimising its harmful effects.

“But for some baffling reason, the Labor-Greens government in the ACT has decided it is a good idea to release ice into the streets of Canberra,” Senator Cash said.

“We know ice-induced psychosis leads to violent rages. According to the government’s own advice on the dangers associated with ice: ‘High doses of ice and frequent use can cause ‘ice psychosis’, which can last a few days, causing severe paranoid delusions and hallucinations, and unusual, aggressive or violent behaviour.’

“Those rages risk the safety and welfare of emergency services workers, health professionals and bystanders. And the suppliers of these hard drugs are organised crime figures and outlaw motorcycle gangs. They are the real beneficiaries of these laws.”

Nor would decriminalisation of drugs necessarily connect people with a health-led response: “There is a real concern that the health services just aren’t there.”

The ACT drug reforms also created operational issues for police, Senator Cash said: there was no clarity whether ACT laws were consistent with Commonwealth legislation.

The Australian Border Force had said that all jurisdictions needed to work together on a national approach, while the Australian Federal Police had warned that changes would lure recreational drug users to Canberra and spark an increase in drug-related deaths, Senator Cash noted. “The ACT drug decriminalisation laws create a problem that extends beyond Canberra’s border.”

The drug reforms could have unintended legal consequences, Senator Cash argued: the law applies to the Jervis Bay Territory, mentioning that it could extend to certain flights under the Crimes (Aviation) Act 1991 (Cth). Under the Crimes at Sea Act, Jervis Bay’s criminal laws also apply on Australian ships and to Australian citizens on foreign ships in areas outside Australian waters.

This led to the question of whether Australian citizens could now carry drugs like ice on ships in international waters and face only a $100 fine due to the ACT laws.

“Have Andrew Barr and Rachel Stephen-Smith now unwittingly created a cruise ship drug charter?” Senator Cash asked. “What an absurd situation.”

Senator Cash warned that the “badly thought-out law” would harm people travelling to Canberra “hoping to experience the ACT’s party lifestyle”, and who could become addicted or even die; first responders, emergency workers, and bystanders “who find themselves facing a person with ice-induced psychosis”; and families.

Federal Opposition Leader Peter Dutton MP said: “It’s remarkable that somehow the Labor Party believes that this is going to reduce crime in the ACT.

“The Australian Federal Police, the Australian Border Force, others have advised against this, they’ve warned against it, and as the AFP have said, you’ll end up luring drug users into Canberra. That’ll be the tourism attraction for people coming from all over the country – as you see in states in the United States – I mean that’s the reality of what happens there.

“So, I don’t think any good can come of it. You know, I’ve delivered death messages to parents whose kids have died of overdoses. I’ve been to countless domestic violence incidences where blokes are as high as a kite, and they commit crimes that they wouldn’t otherwise. How they could in good conscience do this and why the Prime Minister won’t stand up to it is beyond me.”

Senator’s bill ‘massive interference with territory rights’

The Coalition bill was condemned by ACT Labor, the Greens, and independent Senator David Pocock as an unwarranted attack on the ACT’s rights to self government.

ACT Health Minister Rachel Stephen-Smith said that Senator Cash was trying to change a decision that was legitimately made by the Legislative Assembly after a thorough process. The ACT Government had released an exposure draft of the bill in December 2020; introduced the bill in February 2021; held an inquiry from February to November 2021; responded to recommendations from the inquiry; considered amendments from the Canberra Liberals and ACT Greens; and then passed the bill in October 2022.

“So, for anyone to say anything other than this was a thorough consideration by the Legislative Assembly is completely ridiculous, and Senator Cash is really clutching at straws if she thinks that this isn’t a massive interference with territory rights, because it absolutely is.”

ACT Chief Minister Andrew Barr also slammed the federal Coalition for pushing to override laws in the ACT, after a separate bill by Senator Matt Canavan sought to overturn legislation that allowed the territory government to compulsorily acquire the former Calvary Hospital.

Mr Barr said the push was “political posturing” from the Liberals who were simply “throwing some red meat to the base”.

ACT independent Senator David Pocock said interstate senators must stop attacking territory rights. He feared that this set a precedent for federal challenges to the ACT’s voluntary assisted dying laws.

“I’m concerned that Senator Cash seeking to nullify an ACT law and override a democratically elected government is a step on the way to challenging voluntary assisted dying laws, if and when they are legislated,” Senator Pocock said. 

“The Senate recently, and unanimously, voted to repeal the Andrews Bill and to allow the territories to self-govern as the states do. I’m asking the Federal Coalition – today – to put the democratic rights of the ACT people front and centre, and rule out any future challenge to the ACT’s voluntary assisted dying laws.”

Senator Pocock suggested that if interstate senators “would like to see changes in the ACT’s laws”, that they “run for the Legislative Assembly at next year’s election”.

Shane Rattenbury, ACT Attorney-General and ACT Greens leader, condemned the Liberal Party’s interference in the decisions of the two-party government of the ACT and its parliament.

“The Federal Opposition has nothing constructive to contribute and no business interfering in matters concerning people of the ACT,” Mr Rattenbury said.

“What we’re seeing today is a deliberate attack on territory rights and a malicious attempt by the Federal Liberal Party to undermine our democratically elected ACT Assembly.”

Likewise, Greens Senator David Shoebridge said: “It makes a mockery of our system of accountable and democratic government for the Coalition to keep trying to knock over positive law reforms made by the territories. This is a decision for the people of Canberra and their representatives, not the Federal Opposition.

“Federal Parliament should be watching the ACT closely for ideas on how to implement drug law reforms that are evidence-based and save lives; instead, we have more of this tragic politicking from the Coalition. 

“The Coalition are stuck in the 1950s war on drugs with their ‘dangerous drugs’ bill that seeks to undo changes that are harm reduction in action.” 

Mr Dutton denied that the bill interfered with territory rights.

“We’ve only got hope if the government supports it, and that will be a decision for the Prime Minister,” he said.

“It’s not interfering with the Territory’s rights. There are federal agencies here who are advising against this Act, and the Prime Minister’s responsibility is to stand up for all Australians, and at the moment I think the bill we’ve got is sensible, it’s measured, and it should be supported, and I hope it will.”

Liberals at loggerheads?

On Tuesday, Jeremy Hanson, ACT Deputy Leader of the Opposition and Shadow Minister for Police, moved to delay the implementation of decriminalisation until after next year’s election. He argued that the ACT Government did not have a mandate for their drug reforms; that they had been warned by law authorities and doctors that the reforms would not work; and that Canberra was unprepared for the decriminalisation of drugs.

“This [Senator Cash’s] bill, make no mistake, has Mr Hanson’s fingerprints all over it,” Ms Stephen-Smith said.

Canberra Liberals leader Elizabeth Lee said she was only notified yesterday that the Senate bill would be introduced.

Ms Lee said Federal Coalition politicians had raised “significant and genuine concerns” about the impact of the laws on national security issues, but that she was concerned about any attempt to diminish territory rights.

The Canberra Liberals were committed to repealing the drug decriminalisation laws in government, Ms Lee said.

“Let’s be brutally honest: the issue at stake here is a rotten piece of law that this Labor-Greens government took to the election under stealth. There is no doubt about that …

“The fact is that these are terrible laws. And the way to get rid of them is to turf out this rotten Barr-Rattenbury Labor-Greens government at the ballot box in October 2024.”

Ms Stephen-Smith claimed that the bill highlighted “the massive divide within the Canberra Liberals”.

“They’ve now got a leader who is trying to portray the Canberra Liberals as progressive and a deputy leader who is up in Parliament House encouraging his federal colleagues to undermine territory rights,” Ms Stephen-Smith said. “It is very clear that Ms Lee and Mr Hanson disagree on policy, they disagree on tactics, and they fundamentally disagree on the protection of territory rights.”

Support for drug decriminalisation

Ms Stephen-Smith said Canberrans supported the “progressive” reform, which would make people safer.

“This is about ensuring that a young person who experiments with illicit drugs doesn’t think twice about calling an ambulance or getting help if their friend is having an adverse reaction to that drug because they’re worried about a criminal record,” she said.

“It’s about ensuring that someone whose friend has overdosed will call the ambulance and not have to be concerned that they will both end up with a criminal record. It’s about ensuring that people who need help for their drug dependence feel safe to go and reach out for that help because we reduce stigma and we reduce the risk of engagement with the criminal justice system.”

ACT Labor backbencher Michael Pettersson, who introduced the decriminalisation bill in 2020, said that decriminalisation would not increase drug use.

“Diversion, access to treatment and rehabilitation are the best ways to reduce the harms that drugs cause in our community,” Mr Pettersson said. “No amount of right-wing scaremongering will change that.”

Johnathan Davis, ACT Greens drug harm minimisation spokesman, said people were dying under the status quo: it failed to treat addictions and clogged up prisons with people caught with minor amounts of drugs.

Mr Rattenbury said the decriminalisation of cannabis had taken pressure off law enforcement and the criminal justice system as people caught with small quantities did not need to be arrested, charged and processed.

“We want to treat people from a health point of view rather than a criminal justice point of view,” he said. 

But the Canberra Liberals and the police argue that decriminalisation will lead to increased drug availability, encourage drug use, and result in higher crime rates (including assault and fatal road accidents). They express concerns about potential rises in drug-related incidents, including addiction and overdoses.

Police have raised concerns about narco-tourism, where individuals from other regions come to the ACT to purchase drugs due to lenient drug laws. They argue that this could attract people who are not familiar with the distinction between decriminalisation and legalisation.

Critics also question the need for drug decriminalisation, pointing out that the ACT already has a high rate of diversion for drug possession and low rates of criminal proceedings for drug offences. They believe that the current system effectively diverts drug users away from the criminal justice system and into health and social services. Mr Hanson argues that instead of decriminalization, resources should be allocated to enhance drug treatment and support services.

Mr Hanson and the police have also pointed to Portugal and the United States, suggesting that decriminalization did not necessarily lead to the expected benefits. They highlight issues such as increased drug use, overdose deaths, and public drug use in certain areas.

With AAP