Greens make a call for legal cannabis.

by Marijuana Staff

The Greens have shared a legal opinion from a distinguished source that suggests the legalisation of cannabis in Australia is a constitutional responsibility of the Commonwealth.

Specifically, leading constitutional law Professor Patrick Keyzer, Dean of Law has given advice that there are 3 heads of Commonwealth power that would enable it to regulate and legalise cannabis, they are:

  • the trade and commerce power, section 52(i) of the Constitution;
  • the intellectual property power, section 51(xviii); and
  • the taxation power s 51(ii), together with ss 55, 90 and 98 of the Constitution.

To quote Professor Keyzer:

1. Section 51(xviii) enables the Commonwealth to regulate plant variety rights (Grain Pool of WA v Commonwealth (2000) 202 CLR 479 at 495-7, 503, 531 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; 530-533 per Kirby J).

2. 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.

3. The Commonwealth can declare an intention to “cover the field” when it regulates intellectual property (or any other topic) as (Wenn v Attorney-General (Vic) (1948) 77 CLR 84 at 110, 119, 122).

4. The Commonwealth could pass valid legislation requiring all cannabis varieties to be regulated by a Commonwealth agency. Setting up an agency to do so would be characterised as an administrative activity that is necessary or convenient for the exercise of the legislative power (and could therefore be supported under s 51(xxxix) or impliedly, as to which, see D’Emden v Pedder (1904) 1 CLR 91 at 109-110 (quando lex aliquid concedit concedere videtur et illud sine quo res ipsa valere non potest)).

The Greens have stated they are working with key stakeholders to create a draft bill to be presented to parliament.

If you are a stakeholder, now is the time to reach out to the Greens and let them know what you want as a patient, caregiver or plain old consumer.

The Greens want input on;

  • The appropriate number of plants for individuals to legally grow,
  • Appropriate legal sanctions for unlawful sale or distribution, including to minors,
  • Additional taxation measures and where that revenue should be allocated, schools etc,
  • Prohibitions on the tobacco and alcohol industry from entering the cannabis industry, and
  • The role of grower cooperatives.

Contact Senator David Shoebridge.

David Shoebridge
This election, change is within reach.


Original release / campaign explainer.

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