AUSTRALIAN CANNABIS LEGAL REFORM “WHAT’S HAPPENING DOWN UNDER, MATE!”

BY ROBERT W.E. LAURIE

G’DAY MATE! Welcome and greetings from Australia to a special ‘Auzzie’ installment of “North of the 49th Parallel” appropriately re-named “South of the 49th Parallel”.

I write this episode ‘Down Under’ in the Southern Hemisphere, where I had the privilege to be an international speaker and guest of the Nimbin Hemp Embassy at the 25th Annual MardiGrass Cannabis Law Reform Rally and Gathering in the rolling hills of beautiful Nimbin, New South Wales (NSW) Australia.

It was an honor to be invited by Mr. Michael Balderstone, the President of the Nimbin Hemp Embassy. When we first met, we struck a chord in our common beliefs and passions. Like myself, Michael worked in the City of London, England and for similar reasons we both left that lifestyle. Michael says his former work “just seemed to be help the rich get richer,” which I could relate to during my time in the ‘Big Smoke’ (London) as a lawyer. In the 1970s, Michael left London as he needed to know if there was a God, or was life just dog eat dog? A few months later, in Kandahar, Michael says he smoked pot for the first time, which blew his mind (no kidding!).

Then, following a magic mushroom trip in Bali, he spent the next decade wandering around what he calls “this awesome planet”, wondering who he was and what to do with his life, before finally coming to rest in Nimbin about thirty years ago. It is a good thing he did, as Mr. Balderstone is the unofficial mayor of Nimbin, President of the Nimbin Hemp Embassy and the National HEMP Party of Australia, plus being one of the backbone coordinators behind the annual MardiGrass event.

The MardiGrass Cannabis Law Reform Rally and Gathering is an annual cannabis rally and celebration. Beginning in 1993, the MardiGrass festival has been held to protest the drug laws, educate the public on the various uses of cannabis (medicinal, industrial, recreational & spiritual) and to celebrate the unique community and counter culture that renders Nimbin unlike anywhere in the world. In fact, from walking around Cullen Street (the main Nimbin drag) one would not know that the consumption and possession of cannabis was illegal. It’s awesomely everywhere. However, the reality in Australia is cannabis is still highly illegal, with severe penalties if caught. To even enter Nimbin during MardiGrass requires one to successfully traverse police check points for nearly a 100-mile radius where roadside drug testing is utilized to screen drivers for THC, MDMA and amphetamines. The little mountain town of Nimbin can be described as ‘Ground Zero’ for Australian cannabis law reform and related legalization efforts. Mr. Balderstone describes Nimbin as “unique, being the last bus stop for a lot of people who left the mainstream looking for a more meaningful life.” Michael bought a share in the Sphinx Rock Commune community and was “determined to live with different values where success was not equated with money.” Nimbin is a place “where people share more and cooperate rather than compete with each other”, making it a model that more communities should follow. Nimbin is a very special place and I am delighted I was able to participate in MardiGrass, plus be a guest of Mr. Balderstone at his home at the Sphinx Rock Commune just outside of Nimbin.

During and after MardiGrass, I obtained insight and understanding of the cannabis situation, legalization efforts and challenges in Australia from my meetings and interactions with leading Australian community leaders like Michael Balderstone, cannabis activists such as Andrew Kavasilas (HEMP Party), Magistrate David Helipern and local solicitor Steve Bolt, along with numerous politicians including Green MP, David Shoebridge. I also had the pleasure to participate on a number of legalization panel discussions during MardiGrass, including whether Australia should consider adopting a Charter of Rights and Freedoms. On this panel I got to meet political personalities such as Gabe Buckley, plus Federal Senators including Derryn Hinch of the Justice Party and David Leyonhelm of the Liberal Democrats and others.

THE PROMISE OF CANNABIS LEGAL REFORM IN AUSTRALIA

A system of legalized medical cannabis is slowly being established in Australia, but the rules are anything but clear. In February 2016, the Australian parliament made amendments to the Narcotic Drugs Act that legalized the growing of cannabis for medicinal and scientific purposes. In November 2016, Australian legislation at the federal level came into effect allowing medicinal cannabis to be prescribed in New South Wales and Western Australia, with all other states and territories except South Australia and the Northern Territory is anticipated to follow in 2017. However, what this currently looks like at the state level is highly restricted and overburdened with red tape.

For example, only a handful of permits have been issued nationwide to legally grow cannabis. Instead of growing locally in Australia, legal medicinal cannabis is imported from Canada and European countries. Similar to Canada, physicians are the gatekeepers for legal access to cannabis; however, there is a significant lack of information and guidance from their regulating medical bodies on the endocannabinoid system, cannabis indications and effective dosing ranges. Consequently, physicians are apprehensive to recommend cannabis to patients. Most jurisdictions still haven’t created frameworks to distribute cannabis to patients and Australian states are left to decide who is qualified to use and dispense the product. The NSW Government has announced it will conduct trials on the effectiveness of medical cannabis, but there has been no real change in the law or clarity as to access to supply. As I spent most of my time speaking with professionals in New South Wales, I will focus most of this article discussing the current state cannabis laws within New South Wales.

LEGAL STATUS OF CANNABIS

I had the great pleasure of meeting Lismore solicitor, Steve Bolt, who informed me that cannabis is classified as a “prohibited drug” under the laws of New South Wales. In Australia, like Canada, possession of “paraphernalia” like bongs, pipes and devices for consuming cannabis is still an offence and up to the discretion of police officers. You are more likely to be arrested in Australia for paraphernalia than in Canada, despite being technically still illegal in both countries.

Under the Australian system, according to Steve Bolt, “all cannabis offenses in the state of New South Wales are dealt with in court unless one can qualify for a ‘cannabis caution,’ which are also discretionary.” The police in NSW have discretion to issue a caution if one is caught in possession of less than 15 grams of cannabis. In such a circumstance cautions can be utilized as a means of diverting the accused out of the criminal justice system provided they have no prior convictions and the cannabis in their possession is admitted to.

CANNABIS SUPPLY

Mr. Bolt defined “supply” in Australia as including selling, sharing, giving away and agreeing to supply. An unauthorized supply of cannabis is regarded in Australia as a serious offence and the penalties are severe for supply on a large commercial scale. Without the protections of a Charter of Rights and Freedoms or a state sanctioned medical cannabis program to rely upon, all users of cannabis in Australia have little legal defenses and statutory protections for lawyers to argue.

Further, there is also an offence in Australia called “deemed supply” which in the case of cannabis, means a ‘deemed supply’ amount of 300 grams or more. So, if the police can prove an accused was in possession of 300 grams or more of cannabis, the onus will shift to the accused to prove the cannabis possession was not for supply (i.e. for personal use in relation to a medical condition for example).

CANNABIS POSSESSION

Steve Bolt indicated that to secure a conviction for possession in Australia, the prosecution must prove beyond a reasonable doubt that the accused knew they had cannabis in their custody or legal control. In cases where more than one person has access to the cannabis (i.e. where the substance is found in a shared dwelling house or in a car with several occupants) the prosecution must rule out the possibility that someone other than the accused person was in possession of the cannabis.

CULTIVATION OF CANNABIS

The term “cultivation” in Australia refers to activity to assist growing or harvesting the cannabis plant. Mr. Bolt added that cultivating cannabis includes a plethora of activities such as planting or watering or fertilizing. Again, as with possession and supply, the police must provide the prosecution with enough evidence to prove the offence beyond a reasonable doubt that the accused carried on cannabis cultivation activities. In Australia, it is worth noting, there are specifically higher penalties and trial by judge and jury automatically for cultivating more than 250 plants.

HYDROPONIC GROWING

With respect to growing cannabis plants indoor utilizing hydroponic growing techniques, such is a separate offence under the laws of NSW. From speaking with Andrew Kavasilas and Steve Bolt, the maximum penalties for hydroponic growing are much higher than for cultivating the same number of outdoor plants. As with “possession” and “supply”, for a hydroponic growing charge to stick, the prosecution must prove the indoor growing was for a commercial purpose.

ROADSIDE TESTING FOR CANNABIS

Australia has implemented a large-scale cannabis roadside drug-testing program, which was very apparent during MardiGrass as all roads in and out of Nimbin for a 100-mile radius had police roadblocks. According to Paul Gregoire of the Nimbin HEMP Embassy, roadside testing is carried out under the pretext that police are trying to prevent road accidents caused by people driving under the influence of drugs, “but in reality, this testing has more to do with a zero tolerance approach to the use of certain illicit substances.” At roadblocks, the NSW police swab driver’s mouths and test for trace amounts of THC, MDMA and amphetamines.

There are multiple critical flaws with mouth swab screening. One is that cannabis should not be categorized together with MDMA and amphetamines, as they are completely different compounds with different effects. Another is that this screening simply identifies the presence of a compound but does not accurately measure level of impairment. In the context of alcohol, an established blood alcohol level has been identified to correlate with increased danger driving. No equivalent value has been identified with cannabis. With cannabis being physiologically metabolized completely differently than alcohol, there is no logic or science behind this screening and inferred threat of danger.

In Canada, there has been much discussion and debate about the topic of ‘drug driving’ as traces of cannabis found in the blood system are no measure of impairment. As legal medicinal use of cannabis becomes a reality, arbitrary roadside drug testing policies are going to impact all facets of society , including those who are not breaking the law.

EDIBLE CANNABIS

Possessing or supplying cannabis cookies, or other kinds of edible products, is illegal. Most alarming with the drug laws surrounding edibles in Australia is that it regards edibles by weight as if the cookies were pure cannabis because weight determines the nature of the criminal charge. Theoretically with respect to edibles, one could be charged with “deemed supply” by possessing cannabis baked goods amounting to more than 300 grams even though an accused is mainly possessing legal confectionery products such as chocolate, flour, sugar and butter.

WHAT DOES THE FUTURE HOLD FOR AUSTRALIA?

The future of cannabis in Australia is anything but certain in a country where state sanctioned prostitution is legal, but access to medical cannabis is highly restricted. With no Charter of Rights and Freedoms (like we have in Canada), any legislation put forward by the Australian government (federal or state level) should prove difficult to challenge on the ground of infringing constitutionally protected activities. In Canada we have had much success challenging federal cannabis polices that have infringed the Section 7 Charter Right to Life, Liberty and Security of the Person.

As I discussed in the last installment of “North of the 49th Parallel”, despite the efforts of Canada to be the first G7 nation to have a national legal cannabis program in place, the current Canadian law and future speculative regulations are limited and designed to facilitate government administration over patient ease and common sense. From speaking with David Shoebridge, an Australian Green Party MP and member of the NSW Upper House and Andrew Kavasilas, the Australian government is looking to Canada and some U.S. States, to guide the structure of cannabis legalization in Australia.

What will the future hold for cannabis in Australia? We will just have to wait and see, but for now, note that the folks of Nimbin are keeping the cannabis fight strong and I expect great things from this wonderful country. Thank you again to Michael Balderstone, the Nimbin Hemp Embassy and the community of Nimbin for a truly wonderful MardiGrass and Australia experience.

If there is a particular Canadian (or Australian) cannabis topic you would like clarification on, please feel free to contact me by email at: rob@adlucemlaw.com. Until next time, no worries Mate!

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