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Legalising cannabis in Australia: how would it work and is there a catch?

The Greens say legalising cannabis could net the government $28bn tax revenue in nine years, but there are a few hurdles

Canada, Uruguay … Australia?

The Greens are about to introduce legislation into the parliament to legalise cannabis across the nation.

Currently out for public consultation, the legislation, if passed, would allow for the regulation and sale of approved cannabis strains for recreational consumption in Australia, joining the handful of countries (and US states) that have already moved to legalise it.

Greens senator David Shoebridge plans to introduce the bill to the Senate once the party has taken on board the results of that consultation.

To get anywhere, the bill would need government support and Labor hasn’t yet given any indication it would throw its weight behind the legislation.

So what does and doesn’t the legalise cannabis bill allow? Is it even necessary? Will it be possible to visit an Australian cafe for a brownie or a bud?

What is the law now?

Growing, possessing, selling and/or using cannabis remains illegal in Australia, although the precise law varies from state to state (and territory). Below are the fines/sentences for possession/use of cannabis.

New South Wales: Maximum penalty of up to two years’ imprisonment and/or a fine up to $2,200 for possession/use.

What is the law now?

Growing, possessing, selling and/or using cannabis remains illegal in Australia, although the precise law varies from state to state (and territory). Below are the fines/sentences for possession/use of cannabis.

New South Wales: Maximum penalty of up to two years’ imprisonment and/or a fine up to $2,200 for possession/use.

Queensland: Maximum sentence of 15 years for possession. Police have discretion to give a caution/diversion notice to someone carrying up to 50g for personal use for a first offence.

Western Australia: Fines range from $2,000 to $20,000 and up to two years in prison. For possession up to 10g police can use discretion to order the person to a counselling session (one for adults, two for children).

South Australia: An adult can be fined if found to be in the possession/use of up to 100g (personal use) or growing one plant (without enhancement). Above “low level” possession, people can face fines of between $2,000 and $200,000 and between two and 25 years in jail.

Tasmania: Maximum penalty of $7,950 and/or two years in prison. Police have discretion for up to three cautions for possession under 50g.

Australian Capital Territory: As of January 2020, an adult can have up to 50g of dry material, 150g of wet material and cultivate up to two plants (for personal use). It remains illegal to buy, sell or gift cannabis, or smoke it in a public place. Drug driving laws still apply.

Northern Territory: Adults in possession of up to 50g or two plants (no enhancements) can be fined $200. Larger penalties and or jail apply to possession in a public place and cultivation in front of a child.

Medical cannabis with a prescription is available in Australia, but is heavily regulated by authorities and the Therapeutic Goods Administration (TGA).

What does the Greens bill propose?

The legalise cannabis bill would “provide for the registration of cannabis strains, the regulation of cannabis and the establishment of the Cannabis Australia National Agency”.

There would be a national cannabis licensing scheme, and a regulator, which would oversee small-scale commercial growing operations and sales. The regulator – the Cannabis Australia National Agency (Cana), would also act as the wholesaler between producers and retail outlets, setting the wholesale price.

Under the legislation, it would be legal to grow up to six plants at home, and to sell through licensed cannabis cafes and dispensaries. It would be similar to the Canadian model, where cannabis can be sold by both government-run dispensaries and licensed private sellers.

It is a bit of a tricky one, because under the constitution, the states have responsibility for criminal law. But the Greens think that once cannabis was legalised federally, the commonwealth would have the power to create a national, legal cannabis market.

Using advice from constitutional lawyer, Prof Patrick Keyzer, the dean of law at the Thomas More Law School at the Australian Catholic University, the Greens think there is a workaround using federal law to protect plant breeders.

A big part of the Greens bill is the regulation of approved strains of cannabis, as well as who could grow and sell it. That would give space, the Greens believe, using elements of section 51 of the constitution to pass federal legislation making certain cannabis varieties legal, which would be regulated by a commonwealth agency.

“In short, the commonwealth can regulate the cultivation, licensing and sale of cannabis and this includes all the ancillary machinery provisions needed to create a legal national market for cannabis. Once this occurs, all state and territory laws contrary to the legal use of cannabis under the commonwealth laws (being the current state criminal sanctions) would cease to have effect,” Shoebridge’s office sent in explanation.

There are still concerns over the individual laws of possession within the states and who would enforce any commonwealth laws.

The Greens see legalisation as the first hurdle to cross, with further difficulties to be worked out through a forum such as national cabinet.

Why would any federal government go for it?

Australians’ attitudes to cannabis are changing.

It is the most commonly used illicit drug. Nearly 40% of over 14s in Australia have reported using it in their lifetimes. Support for legalising cannabis has continued to grow over the years, as usage has increased and the drug has been legalised elsewhere. Also, the benefits and availability of medicinal marijuana have helped to remove stigma.

Plus there is the potential revenue. The Greens believe there is potential for at least $28bn over nine years to be raised in tax revenue – and that is before taking into account the money saved on law enforcement and prosecutions.

What’s the catch?

In order to pass through parliament and become law, the legislation needs the support of government MPs. That’s unlikely to happen in the current political environment. Plus, there is also the issue – outlined above – of getting the states and territories on board to repeal local laws that criminalise possession and use.

The Canadian model, which the Greens legislation most closely represents, is also not without its problems. The academic director of the Lambert initiative for cannabinoid therapeutics at the University of Sydney, Prof Iain McGregor, said there had been “a race to the bottom in terms of price” after people began “growing in bulk themselves, while eschewing the more expensive products available in street fronts”.

McGregor said the same issues had been seen in New York, where there was a “fuzziness” around what was legally being sold and what was not – leading to a cultivation boom that produced a billion-dollar “weed mountain”.

There has also been an impact on the research world – a lot of companies put a stop to studies into the potential adverse effects of cannabis use because of a “horse has bolted” mentality.

What about in the meantime?

Cannabidiol, more commonly known as CBD, is another chemical found in cannabis which does not get you high but may help with pain and anxiety. It has already been approved for over-the-counter sale for pharmacies by the TGA. So far, no CBD products have been approved for sale in Australia, but that is expected quite soon.

McGregor said he would imagine “in the next year or so, we’ll have over-the-counter CBD in pharmacies”.

“And then I think it probably is just a matter of time that we have a whole array of CBD products as you can in the UK and the USA and most European countries, where CBD is completely demystified and you can pick it up the same way as you pick up your Nurofen or aspirin.”


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