Document 1 - Page 1 of 4
From:
West Lisa
To:
Brayshaw, Elizabeth
Cc:
(s 22)
Subject:
RE: Letter from Richard Glenn Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018
[SEC=OFFICIAL]
Date:
Friday, 20 September 2019 3:47:30 PM
Attachments:
image001.png
OFFICIAL
Hi Liz
Given the availability of the Director and Solicitor this afternoon I don’t think we can come back
to you with a concluded view today - but we should be able to do so on Monday morning.
Regards
Lisa West
Adelaide
Assistant Director
Brisbane
Cairns
Legal Business Improvement
Canberra
Commonwealth Director of Public Prosecutions Darwin
Hobart
Melbourne
Perth
(s 22)
Sydney
Townsville
www.cdpp.gov.au
Classification: OFFICIAL
From: Brayshaw, Elizabeth <xxxxxxxxx.xxxxxxxx@xx.xxx.xx>
Sent: Friday, 20 September 2019 2:21 PM
To: West Lisa <xxxx.xxxx@xxxx.xxx.xx>
Cc: (s 22)
Subject: RE: Letter from Richard Glenn Drugs of Dependence (Personal Cannabis Use)
Amendment Bill 2018 [SEC=OFFICIAL]
Thanks – once you have had these discussions, grateful if you could contact me to discuss further
later today.
Regards
Liz
Attorney-General's Department documents released under FOI19/226
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Document 1 - Page 2 of 4
From: West Lisa [mailto:xxxx.xxxx@xxxx.xxx.xx]
Sent: Friday, 20 September 2019 2:12 PM
To: Brayshaw, Elizabeth <xxxxxxxxx.xxxxxxxx@xx.xxx.xx>
Cc: (s 22)
Subject: RE: Letter from Richard Glenn Drugs of Dependence (Personal Cannabis Use)
Amendment Bill 2018 [SEC=OFFICIAL]
OFFICIAL
Hi Liz
This has just come through, along with your earlier email , in reverse order.
I have had a quick look through the advice. I would like an opportunity to digest it and discuss it
with the Commonwealth Solicitor before coming back to you further.
(s 42)
(s 42)
That said, I will contact you further once I’ve had an opportunity to discuss this with the Solicitor
and the Director.
Regards
Lisa West
Adelaide
Assistant Director
Brisbane
Cairns
Legal Business Improvement
Canberra
Commonwealth Director of Public Prosecutions Darwin
Hobart
Melbourne
Perth
(s 22)
Sydney
Townsville
www.cdpp.gov.au
Attorney-General's Department documents released under FOI19/226
Page 2 of 42
Document 1 - Page 3 of 4
Classification: OFFICIAL
From: Brayshaw, Elizabeth <xxxxxxxxx.xxxxxxxx@xx.xxx.xx>
Sent: Friday, 20 September 2019 1:30 PM
To: West Lisa <xxxx.xxxx@xxxx.xxx.xx>
Cc: (s 22)
Subject: RE: Letter from Richard Glenn Drugs of Dependence (Personal Cannabis Use)
Amendment Bill 2018 [SEC=OFFICIAL]
Hi Lisa
Attached is the advice I sent earlier – now copied to (s 22)
I’d be grateful if you could review.
Regards
Liz
From: West Lisa [mailto:xxxx.xxxx@xxxx.xxx.xx]
Sent: Friday, 20 September 2019 10:09 AM
To: Brayshaw, Elizabeth <xxxxxxxxx.xxxxxxxx@xx.xxx.xx>
Cc: (s 22)
Subject: RE: Letter from Richard Glenn Drugs of Dependence (Personal Cannabis Use)
Amendment Bill 2018 [SEC=OFFICIAL]
OFFICIAL
Dear Liz
Please find attached the Director’s letter to Mr Richard Glenn dated 20 September 2019.
Happy to discuss further as needed.
Regards
Lisa West
Adelaide
Assistant Director
Brisbane
Cairns
Legal Business Improvement
Canberra
Commonwealth Director of Public Prosecutions Darwin
Hobart
Melbourne
Perth
(s 22)
Sydney
Attorney-General's Department documents released under FOI19/226
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Document 1 - Page 4 of 4
(s 22)
Townsville
www.cdpp.gov.au
Classification: OFFICIAL
********************************************************************** The
information contained in this message and in any attachments is privileged and confidential
and intended only for the use of the addressee. You should not read, copy, use or disclose
this information without authorisation. If you are not the intended recipient of this message,
please e-mail the sender immediately and delete this message. Any unauthorised
dissemination, disclosure, copying or use of the contents of this message is prohibited and
may result in legal action.
**********************************************************************
If you have received this transmission in error please
notify us immediately by return e-mail and delete all
copies. If this e-mail or any attachments have been sent
to you in error, that error does not constitute waiver
of any confidentiality, privilege or copyright in respect
of information in the e-mail or attachments.
********************************************************************** The
information contained in this message and in any attachments is privileged and confidential
and intended only for the use of the addressee. You should not read, copy, use or disclose
this information without authorisation. If you are not the intended recipient of this message,
please e-mail the sender immediately and delete this message. Any unauthorised
dissemination, disclosure, copying or use of the contents of this message is prohibited and
may result in legal action.
**********************************************************************
If you have received this transmission in error please
notify us immediately by return e-mail and delete all
copies. If this e-mail or any attachments have been sent
to you in error, that error does not constitute waiver
of any confidentiality, privilege or copyright in respect
of information in the e-mail or attachments.
********************************************************************** The
information contained in this message and in any attachments is privileged and confidential
and intended only for the use of the addressee. You should not read, copy, use or disclose
this information without authorisation. If you are not the intended recipient of this message,
please e-mail the sender immediately and delete this message. Any unauthorised
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Attorney-General's Department documents released under FOI19/226
Page 4 of 42
Document 2 - Page 1 of 2
Commonwealth Director
of Public Prosecutions
Level 11, 175 Liverpool Street
Sydney NSW 2000
Telephone
02 6206 5666
Sarah McNaughton SC
www.cdpp.gov.au
Director
20 September 2019
Mr Richard Glenn
A/g Director-General
Justice and Community Safety Directorate
GPO Box 158
CANBERRA CITY ACT 2601
Dear Mr Glenn
Private Member’s Bill – Drugs of Dependence (Personal Cannabis Use) Amendment Bil 2018 (ACT)
Thank you for your letter dated 30 August 2019 regarding the
Drugs of Dependence (Personal Cannabis
Use) Amendment Bil 2018 (ACT), (
Personal Cannabis Use Bil ) which is being considered by the ACT
Legislative Assembly. As you note in your letter, the purpose of the Bill is to allow for the personal
use and possession of cannabis up to 50 grams and for the cultivation of up to four plants. You have
also provided me with the ACT Government’s drug policy and proposed amendments set out in a letter
dated 18 March 2019 (
proposed amendments).
In particular, you seek our view as to whether the introduction of the
Personal Cannabis Use Bill and
the proposed amendments, wil operate as an excuse to an offence under section 308.1 of the Criminal
Code (Cth) (
the Code) by virtue of section 313.1 of the Code, and whether there is any inconsistency
with Commonwealth Legislation.
The offence of possessing a controlled drug contrary to section 308.1 of the Code came in operation
on 6 December 2005, and its purpose was to capture the possession of smal amounts of drugs.
Subsections 308.1(3) – (5) were included to pick up any State and Territory sentencing options
available such as drug diversion programs, which provide education, treatment and support for drug
users.
Section 313.1 of the Code provides the mechanism for recognising the “many legitimate uses of
control ed substances in our community”1 through available defences where a person engages in
conduct in a State of Territory and the conduct is justified or excused by or under a law of that State
or Territory.
1 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bil 2005 Explanatory Memorandum page 100
Attorney-General's Department documents released under FOI19/226
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Document 3 - Page 1 of 2
From:
(s 22)
To:
(s 22)
Cc:
(s 22)
; Drugs Policy
Subject:
RE: Letter from ACT JACS [DLM=For-Official-Use-Only]
Date:
Friday, 20 September 2019 1:27:07 PM
For Official Use Only
HI (s 22)
Given timing, we’ve had to discuss urgently with the ACT JACS this morning and just now – I’m
happy to give you a more detailed readout over the phone, but the short version is we need to
draft a letter in response pretty urgently. We can send you a draft when we have one (very
sorry, it’ll be a quick turnaround).
(s 22)
From: (s 22)
Sent: Friday, 20 September 2019 12:17 PM
To: (s 22)
Cc: (s 22)
Drugs Policy
<xxxxxxxxxxx@xxxxxxxxxxx.xxx.xx>
Subject: RE: Letter from ACT JACS [DLM=For-Official-Use-Only]
For-Official-Use-Only
Hi (s 22) ,
Thanks for sending the letter through.
If it’s possible, grateful if we could send an attendee to a meeting between AGD and ACT JACS.
(s 47C)
, but
it’d be useful to be involved in working level discussions to inform the development a possible
response.
Happy to discuss.
(s 22)
(s 22)
Director I Drugs Policy Section
Law Enforcement Policy Branch I National Security and Law Enforcement Policy Division
Policy Group
Department of Home Affairs
P: (s 22)
E: (s 22)
(s 22)
Attorney-General's Department documents released under FOI19/226
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Document 3 - Page 2 of 2
For-Official-Use-Only
From: (s 22)
Sent: Thursday, 19 September 2019 11:24 AM
To: (s 22)
Cc: (s 22)
Subject: Letter from ACT JACS [DLM=For-Official-Use-Only]
For Official Use Only
Hi (s 22)
As discussed, see attached letter from the ACT JACS – we’re considering and proposing to discuss
with ACT JACS.
(s 22)
(s 22)
Director | Criminal Law Section
Security and Criminal Justice Branch | 3-5 National Circuit Barton ACT 2600
T: (s 22)
|
M: (s 22)
| E: (s 22)
If you have received this transmission in error please
notify us immediately by return e-mail and delete all
copies. If this e-mail or any attachments have been sent
to you in error, that error does not constitute waiver
of any confidentiality, privilege or copyright in respect
of information in the e-mail or attachments.
Important Notice: The content of this email is intended only for use by the individual or
entity to whom it is addressed. If you have received this email by mistake, please advise
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Unsolicited commercial emails MUST NOT be sent to the originator of this email.
Attorney-General's Department documents released under FOI19/226
Page 8 of 42
Document 5 - Page 1 of 1
From:
(s 22)
To:
(s 22)
Cc:
(s 22)
Subject:
Letterhead - Deputy Secretary - Integrity and International Group [DLM=For-Official-Use-Only]
Date:
Friday, 20 September 2019 2:24:18 PM
Attachments:
Letterhead - Deputy Secretary - Integrity and International Group.doc
For Official Use Only
Hi (s 22)
As discussed, I attach a draft letter we propose to send to the ACT in response to the letter we
sent you yesterday. Let us know asap any views – we will also run it past AGS and SES here.
(s 22)
(s 22)
Director | Criminal Law Section
Security and Criminal Justice Branch | 3-5 National Circuit Barton ACT 2600
T: (s 22)
|
M: (s 22)
| E: (s 22)
Attorney-General's Department documents released under FOI19/226
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Document 6 - Page 1 of 1
Mr Richard Glenn
Acting Director-General
Justice and Community Safety Directorate
PO Box 158
CANBERRA ACT 2601
Dear Mr Glenn
I refer to your letter of 30 August 2019 regarding the Drugs of Dependence (Personal Cannabis
Use) Amendment Bill 2018 and its interaction with Commonwealth law.
Your letter outlines proposed amendments by the ACT Government to the Bill intended to resolve
potential incompatibilities with Commonwealth laws, including the
Criminal Code Act 1995.
Specifically, your letter seeks advice on whether proposed amendments would effectively excuse
relevant conduct from offences in Division 308 of the Commonwealth Criminal Code. I understand
the ACT Government proposes to retain existing offences in the
Drugs of Dependence Act 1989 (ACT) for possession and cultivation of cannabis over prescribed limits, with the inclusion of an
exception such that those offences do not apply to anyone over 18 years of age.
Section 313.1 of the Criminal Code provides an exemption where conduct is justified or excused
under the law of a State or Territory. The requirement for the conduct to be justified or excused by
or under a law requires some positive basis in the law for the conduct that constitutes the offence.
The department has not seen the proposed terms of the ACT Government’s proposed amendments,
but there is a question about whether an exception of the kind you describe would satisfy this
requirement as it may not amount as express authorisation.
Yours sincerely
Sarah Chidgey
20 September 2019
Attorney-General's Department documents released under FOI19/226
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Document 8 - Page 2 of 2
Hi Lisa
As mentioned earlier today, (s 42)
Noting that the ACT has sought the department’s views on possible government amendments –
attached is a draft response from our Dep Sec which will be sent early next week.
Following your discussions with the Director, and consideration of the AGS advice we provided,
we would be interested in your position on this matter.
We will touch base on Monday.
Regards
Liz
Attorney-General's Department documents released under FOI19/226
Page 12 of 42
Document 9 - Page 1 of 1
Mr Richard Glenn
Acting Director-General
Justice and Community Safety Directorate
PO Box 158
CANBERRA ACT 2601
Dear Mr Glenn
I refer to your letter of 30 August 2019 regarding the Drugs of Dependence (Personal Cannabis
Use) Amendment Bill 2018 and its interaction with Commonwealth law.
Your letter outlines proposed amendments by the ACT Government to the Bill intended to resolve
potential incompatibilities with Commonwealth laws, including the
Criminal Code Act 1995.
Specifically, your letter seeks advice on whether proposed amendments would effectively excuse
relevant conduct from offences in Division 308 of the Commonwealth Criminal Code. I understand
the ACT Government proposes to retain existing offences in the
Drugs of Dependence Act 1989 (ACT) for possession and cultivation of cannabis over prescribed limits, with the inclusion of an
exception such that those offences do not apply to anyone over 18 years of age.
Section 313.1 of the Criminal Code provides an exemption where conduct is justified or excused
under the law of a State or Territory. The requirement for the conduct to be justified or excused by
or under a law requires some positive basis in the law for the conduct that constitutes the offence.
The department has not seen the proposed terms of the ACT Government’s proposed amendments,
but there is a question about whether an exception of the kind you describe would satisfy this
requirement. The justification or excuse may need to be more explicitly identified as such in the
terms of the Act. I note that while it may be possible for such a provision to enliven a defence under
section 313.1 of the Code, the interaction between any new provision and other relevant
Commonwealth laws would need to be considered.
Yours sincerely
Sarah Chidgey
20 September 2019
Attorney-General's Department documents released under FOI19/226
Page 13 of 42
Document 11 - Page 1 of 2
From:
West Lisa
To:
Brayshaw, Elizabeth
Cc:
(s 22)
; LBI
Subject:
RE: corro from ACT [SEC=OFFICIAL]
Date:
Monday, 23 September 2019 8:36:49 AM
Attachments:
image001.png
Further Letter Richard Glenn JCSD 20190922 Director signed (002).docx
OFFICIAL
Hi Liz
We have considered the matter further having read the AGS advice, and the Director has asked
me to forward the attached further letter to Mr Glenn, which I have emailed to his Executive
Assistant this morning.
Regards
Lisa West
Adelaide
Assistant Director
Brisbane
Cairns
Legal Business Improvement
Canberra
Commonwealth Director of Public Prosecutions Darwin
Hobart
Melbourne
Perth
(s 22)
Sydney
Townsville
www.cdpp.gov.au
Classification: OFFICIAL
From: Brayshaw, Elizabeth <xxxxxxxxx.xxxxxxxx@xx.xxx.xx>
Sent: Friday, 20 September 2019 6:21 PM
To: West Lisa <xxxx.xxxx@xxxx.xxx.xx>
Cc: (s 22)
Subject: corro from ACT [DLM=Sensitive:Legal]
Sensitive: Legal
Hi Lisa
Attorney-General's Department documents released under FOI19/226
Page 32 of 42
Document 11 - Page 2 of 2
As mentioned earlier today, (s 42)
Noting that the ACT has sought the department’s views on possible government amendments –
attached is a draft response from our Dep Sec which will be sent early next week.
Following your discussions with the Director, and consideration of the AGS advice we provided,
we would be interested in your position on this matter.
We will touch base on Monday.
Regards
Liz
If you have received this transmission in error please
notify us immediately by return e-mail and delete all
copies. If this e-mail or any attachments have been sent
to you in error, that error does not constitute waiver
of any confidentiality, privilege or copyright in respect
of information in the e-mail or attachments.
This email may be protected by legal professional privilege.
**********************************************************************
The information contained in this message and in any attachments is privileged and
confidential and intended only for the use of the addressee. You should not read, copy, use
or disclose this information without authorisation. If you are not the intended recipient of
this message, please e-mail the sender immediately and delete this message. Any
unauthorised dissemination, disclosure, copying or use of the contents of this message is
prohibited and may result in legal action.
**********************************************************************
Attorney-General's Department documents released under FOI19/226
Page 33 of 42
Document 13 - Page 1 of 1
Mr Richard Glenn
Acting Director-General
Justice and Community Safety Directorate
PO Box 158
CANBERRA ACT 2601
Dear Mr Glenn
I refer to your letter of 30 August 2019 regarding the Drugs of Dependence (Personal Cannabis
Use) Amendment Bill 2018 and its interaction with Commonwealth law.
Your letter outlines proposed amendments by the ACT Government to the Bill intended to resolve
potential incompatibilities with Commonwealth laws, including the
Criminal Code Act 1995
(Commonwealth Criminal Code). Specifically, your letter seeks advice on whether proposed
amendments would effectively excuse relevant conduct from offences in Division 308 of the
Commonwealth Criminal Code. I understand the ACT Government proposes to retain existing
offences in the
Drugs of Dependence Act 1989 (ACT) for possession and cultivation of cannabis
over prescribed limits, with the inclusion of an exception such that those offences do not apply to
anyone over 18 years of age.
Section 313.1 of the Commonwealth Criminal Code provides an exemption where conduct is
justified or excused under the law of a State or Territory. The requirement for the conduct to be
justified or excused by or under a law requires some positive basis in the law for the conduct that
constitutes the offence. The department has not seen the proposed terms of the ACT Government’s
proposed amendments, but there is a question about whether an exception of the kind you describe
would satisfy this requirement. The justification or excuse may need to be more explicitly identified
as such in the terms of the Act. I note that while it may be possible for such a provision to enliven a
defence under section 313.1 of the Commonwealth Criminal Code, the interaction between any new
provision and other relevant Commonwealth laws would need to be considered.
Yours sincerely
Sarah Chidgey
23 September 2019
Attorney-General's Department documents released under FOI19/226
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Document 14 - Page 1 of 3
From:
Chidgey, Sarah
To:
Brayshaw, Elizabeth; (s 22)
Cc:
(s 22)
; Walter, Andrew
Subject:
RE: corro from ACT [DLM=Sensitive:Legal]
Date:
Monday, 23 September 2019 12:02:21 PM
Attachments:
230919 - AGD reply to JACS ACT - signed.pdf
Sensitive: Legal
Hi Liz
PDF of signed letter attached.
Sarah
From: Brayshaw, Elizabeth
Sent: Monday, 23 September 2019 11:29 AM
To: (s 22)
Cc: Chidgey, Sarah <xxxxx.xxxxxxx@xx.xxx.xx>; (s 22)
Walter, Andrew
<xxxxxx.xxxxxx@xx.xxx.xx>
Subject: RE: corro from ACT [DLM=Sensitive:Legal]
Sensitive: Legal
Hi (s 22)
Would you mind printing the attached for Sarah’s signature – we have updated to include Cth in
front of Code to make it clear – as (s 22) suggested.
I have flagged with ACT a/g Director of JACS that we would be sending a letter today. He was
comfortable with that.
Can you also check if Sarah will update Chris’ office on the corro.
(s 47C)
Grateful if you could send us a copy of the final letter – we will provide a copy to our colleagues
in HA and PMC for info.
Regards
Liz
From: (s 22)
Sent: Monday, 23 September 2019 11:17 AM
To: Brayshaw, Elizabeth <xxxxxxxxx.xxxxxxxx@xx.xxx.xx>
Cc: AGO DLO <xxx@xx.xxx.xx>; (s 22)
Chidgey, Sarah <xxxxx.xxxxxxx@xx.xxx.xx>
Subject: RE: corro from ACT [DLM=Sensitive:Legal]
Sensitive: Legal
Attorney-General's Department documents released under FOI19/226
Page 36 of 42
Document 14 - Page 3 of 3
Following your discussions with the Director, and consideration of the AGS advice we provided,
we would be interested in your position on this matter.
We will touch base on Monday.
Regards
Liz
Attorney-General's Department documents released under FOI19/226
Page 38 of 42
Document 21 - Page 1 of 1
From:
Brayshaw, Elizabeth
To:
West Lisa
Cc:
(s 22)
Subject:
Attachment F - revised AGS legal advice [DLM=For-Official-Use-Only]
Date:
Friday, 20 September 2019 12:38:02 PM
Attachments:
Attachment F - revised AGS legal advice.docx
For Official Use Only
Hi Lisa
This is the draft advice we have received re: ACT Bill.
Regards
Liz
Attorney-General's Department documents released under FOI19/226
Page 41 of 42
Document 22 - Page 1 of 1
From:
(s 22)
To:
(s 47F)
Cc:
Brayshaw, Elizabeth; Chidgey, Sarah (xxxxx.xxxxxxx@xx.xxx.xx); (s 22)
; (s 22)
Subject:
AGD reply to a/g Director-General - ACT Cannabis laws [DLM=For-Official-Use-Only]
Date:
Monday, 23 September 2019 1:37:00 PM
Attachments:
230919 - AGD reply to JACS ACT - signed.pdf
For Official Use Only
Dear (s 47F)
As discussed, I attach a letter from Ms Sarah Chidgey, Deputy Secretary, responding to a letter of
30 August 2019 from your acting Director-General to our Secretary.
We’d be grateful if you could please forward to Mr Glenn.
(s 22)
(s 22)
Director | Criminal Law Section
Security and Criminal Justice Branch | 3-5 National Circuit Barton ACT 2600
T: (s 22)
|
M: (s 22)
| E: (s 22)
Attorney-General's Department documents released under FOI19/226
Page 42 of 42
