Federal parliament could override state laws to legalise recreational marijuana use, according to new constitutional advice obtained by the Greens.
As the minor party ramps up its campaign to legalise cannabis ahead of a planned private member’s bill to be introduced next year, the Greens’ justice spokesperson, David Shoebridge, said the advice from constitutional lawyer Patrick Keyzer paved the way for new federal laws.
The advice suggests that there are three commonwealth heads of power that would enable it to legalise and regulate cannabis use, with the clearest pathway via a part of section 51, which relates to copyrights, patents of inventions and designs, and trademarks.
Prof Keyzer’s advice states that section 51(xviii) enables the commonwealth to regulate plant variety rights, and the commonwealth “could regulate cannabis strains as plant varieties and cause them to be listed in a schedule in respect of which the commonwealth has exclusive regulatory control.”
Keyzer is a constitutional and human rights lawyer and dean of the Thomas More Law School at the Australian Catholic University.
The Greens say that empowering the commonwealth to regulate the cultivation, licensing and sale of cannabis – including the measures needed to create a legal national cannabis market – would override state and territory laws criminalising marijuana.
Shoebridge, who plans to release a draft bill later this year for consultation, said the move would be the first attempt to legalise cannabis through the federal parliament and would see Australia join countries such as Germany, Canada, Uruguay, South Africa, Jamaica, Mexico, Malta and at least 19 states in the United States in decriminalising the drug.
“We’ve been told to wait for cannabis law reform for too long, even when it’s obvious that the majority of harm caused is by policing and the war on drugs, not the plant,” Shoebridge said in a statement on Monday.
“Recreational cannabis is enjoyed by millions in Australia and around the world, and pretending otherwise is increasingly ridiculous.
“At least 40% of Australians have used cannabis and any law that makes almost half of us criminals needs to go.”
The Greens say their consultation on a draft bill will consider the appropriate number of plants for an individual to legally grow, sanctions for unlawful sale or distribution, including to minors, taxation measures, the prohibition of the tobacco and alcohol industry from entering the cannabis market, and the role of grower cooperatives.
According to the Australian Institute of Health and Welfare, cannabis is the most widely used illicit drug in Australia, with a 2019-20 survey finding 36% of people over the age of 14 had used cannabis in their lifetime, and 11.6% had used cannabis in the previous 12 months.
The institute has also found that the majority of Australians aged 14 years and over (78%) do not support the possession of cannabis being a criminal offence as is the case in most states and territories, with some exceptions in South Australia and in the ACT.
