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The grassroots of legal high in Australia
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The grassroots of legal high in Australia

A policy released by the Australian Greens has proposed the legalisation of cannabis in Australia, writes Arthur Marusevich.

All politics aside, however, if cannabis was to be legalised, its regulation would require a solid legal bedrock at the national level. A framework alike to the current system of divergent cannabis laws amongst the states and territories will not suffice.

Cannabis legislation in Australia

When it comes to regulating cannabis in Australia, each state and territory has its own laws.

For example, while the possession and use of cannabis are generally illegal nationwide, in South Australia, Australian Capital Territory (ACT) and Northern Territory, a small amount of personal use is decriminalised. That means it is still illegal but not a criminal offence. In these jurisdictions, civil penalties apply to a person if they meet certain eligibility criteria.

In all other states, a decriminalisation option does not exist. Rather, a mandatory diversion may be applied, whereby a person is referred to an education or rehabilitation programme. In other instances, the police have the discretion to depenalise a person with a “cannabis caution”.

In relation to the use of cannabis for medicinal purposes, the legal landscape once again varies amongst the states and territories. Victoria was the first state in Australia to introduce legislation to legalise medicinal cannabis. And although other states and territories soon followed suit, major legal differences still exist amongst them:

  • WA: Legal by prescription from doctors under certain conditions, pursuant to the Misuse of Drugs Act 1981.
  • SA: Legal by prescription from doctors under certain conditions.
  • VIC: Legal for use by children with severe, treatment-resistant epilepsy under the Medicinal Cannabis Act 2016.
  • ACT: People who fall under category 6 illnesses within certain criteria.
  • NSW: Legal for use by adults with end-of- life illnesses, under the Poisons and Therapeutic Goods Amendment Regulation 2016.
  • QLD: Legal by prescription from specialists for use by patients with a range of conditions including MS, epilepsy, cancer, and HIV/AIDS, under the Public Health (Medicinal Cannabis) Act 2016.
  • NT: The Australian Government Department of Health regulates therapeutic medicines containing cannabinoids through the Therapeutic Goods Administration and is only accessible by patients with certain medical conditions.
  • TAS: Controlled Access Scheme allows patients to access unregistered medicinal cannabis.

Cannabis legislation around the world

Legality of cannabis for recreational use varies from country to country. Generally, in most countries, the supply and possession of cannabis are illegal as a result of the International Opium Convention signed at The Hague in 1912.

However, in 2013, Uruguay became the first country to fully legalise cannabis. Meanwhile, several other jurisdictions are well underway to legalising cannabis, including Canada and New Zealand.

In some countries, although the recreational use of cannabis is still illegal, a more relaxed approach has been adopted. For example, the Netherlands and Jamaica allow citizens to cultivate a small number of plants, whilst the police keep a lax approach to coffee shops selling cannabis as long as they do not sell to minors. In Spain, there are designated cannabis clubs where people can use the drug. Even in North Korea, expert, visitor and defector accounts suggest that there is either no law restricting cannabis or the law remains unenforced.

In the United States, twenty-nine states and Washington, DC have legalised the medicinal use of cannabis whilst nine states and Washington, DC have legalised cannabis for recreational purposes.

Legal paradox

Although by the end of 2017 all the states and territories in Australia had introduced a mechanism allowing the medicinal use of cannabis, the inconsistency amongst them alone is a testament as to why a diluted regulatory framework does not work well. For example, while the medicinal use of cannabis in Victoria is legal for use by children with severe, treatment- resistant epilepsy, in NSW, medicinal cannabis is only legal for use by adults with end-of- life illnesses.

Consequently, prescribers are often confused and sometimes unaware of their legal obligations when prescribing cannabis products.

Therefore, if cannabis was to be legalised in Australia, leaving its regulation to the states and territories may again produce legal complexities. This would, in turn, result in poor regulation of supply, quality, and cost of cannabis, and give rise to unnecessary confusion amongst vendors and consumers in relation to their legal obligations. To avoid this, a single national regulatory framework is preferable, such as the example below.

A hypothetical model

To take the example of Uruguay and translate it to Australia, it would produce the following model:

A national agency: under a federal enactment, a national agency would be established, responsible for regulating the supply, quality, and cost of cannabis.

Suppliers: all suppliers would be registered with the national agency. The sale of cannabis without an appropriate license would be criminalised.

Vendors: Designated vendors in every state and territory, such as chemists, would also be registered with the national agency and hold an appropriate license.

Consumers: Consumer registration would be no exception. All cannabis users would be registered with the national agency, with their identities stored in a national database.

User limit: A weekly limit would be set on the amount of cannabis a consumer can purchase.

Enforcement: The consumer limit would be monitored by the vendor via the national identity database. Each time a consumer makes a purchase the vendor would record the purchase against the consumer’s identity, thereby ensuring that the consumer does not exceed their set weekly limit if they attempted a fresh purchase at a different vendor. Sale of cannabis by a vendor in excess of a consumer’s weekly limit would be illegal.

The enforcement of such a system would prevent the rise of black market vendors and safeguard the national agency’s control over the supply, quality, and cost of cannabis.

Bearing in mind that the above is merely a hypothetical example, it nonetheless demonstrates that a single legal framework at the national level provides a more effective regulatory outcome than if it were to be left to the states and territories.

Of course, this is all assuming that cannabis would be legalised in Australia.

Arthur Marusevich is a lawyer based in Canberra. He uses his five language skills to help people from disadvantaged backgrounds. Having written his first book, Arthur is an aspiring novelist and aims to publish one novel a year.

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