Following a royal assent on 29 February 2016 to the Narcotic Drugs Amendment Act 2016 (Cth), the cultivation, production and distribution of medicinal marijuana has now been legalised in Australia.
The Narcotic Drugs Amendment Act has introduced a strict licensing and permit scheme which will regulate the cultivation of cannabis plants and the production of cannabis and cannabis resin. It is important to note that the Act limits the cultivation and production of cannabis, and related activities, to medical purposes or for research relating to medicinal cannabis and does not provide permission or excuse to members of the general public found in possession of Cannabis products.
The rationale behind the Narcotic Drugs Amendment Act
In early 2016, the federal government released a public document detailing the rationale behind the preliminary Narcotic Drugs Amendment Bill 2016 later assented to as the Narcotic Drugs Amendment Act 2016 (Cth). The main propositions for legalising marijuana were:
- The growing community expectation that patients, such as terminally ill cancer sufferers, people with multiple sclerosis and children with intractable forms of epilepsy, should have readily accessible sources of medicinal cannabis to treat pain, nausea and appetite increase;
- That large amount of patients who were sourcing uncertified medicinal cannabis products from the black market which were not regulated and could not guarantee the safety of the products;
- The criminality associated with acquiring medicinal cannabis meant that patients were not seeking sound medical advice from medical practitioners; and
- The need to facilitate further research on the benefits of medicinal marijuana where marijuana did not have to be imported into Australia and thus subjected to strict customs regulations.
The federal government noted that:
- The Act would not legalise cannabis use or possession other than for medicinal purposes;
- Cannabis would not be available ‘over the counter’;
- Strict regulations would apply to persons and bodies corporate who could cultivate, manufacture and supply cannabis.
- Australia would remain compliant with its international treaty obligations under the United Nations Single Convention on Narcotic Drugs 1961.
Who can cultivate and grow cannabis?
Under s 8A and 8B of the Narcotic Drugs Amendment Act any person or body corporate involved in the cultivation or production of cannabis, or any related activities, must be a ‘fit and proper person’.
To be a ‘fit and proper person’ A body corporate or person who cultivates (grows) cannabis cannot have any ties to crime, any previous convictions or any previous civil penalties imposed on them. The Department of Health will also check what previous businesses the applicant has worked for and whether the license applicant has sufficient finances to provide premises security. As cannabis is usable in raw form, the Department of Health is aware that legal cannabis farms could be viable targets for crime and therefore any person involved in the process must aboveboard and strict security must be applied.
Who can now manufacture cannabis?
The same strict ‘fit and proper person’ criteria is also applied to a body corporate or person who wishes to manufacture or produce cannabis. This is because the federal government recognises that the ability to enter the scheme at this level is comparatively easier than cultivation for those who wish to exploit medical marijuana for crime.
The Narcotic Drugs Amendment Act also operates to apply this ‘fit and proper person’ standard to existing manufacturers of other narcotics such as morphine which can be used to make heroin.
Who can access medical marijuana?
The supply of medical marijuana to patients will operate to abide by the Therapeutic Goods Act 1989. The federal government has detailed a framework where a patient may have access to a cannabis product under:
- A clinical trial related to a particular condition for which the patient qualifies;
- If the patient does not comply with the protocol for the trial they may have access to the product through a pathway such as the Authorised Prescriber Scheme under the Therapeutic Goods Act.
State and territory governments will play an integral and heavy role is designating what products are to be supplied to a defined group of patients.
Not only will the above access schemes provide de-criminalised and easier access to medicinal marijuana for disease and illness sufferers, they will also facilitate the advancement of medical research on the properties and effects of medicinal cannabis on patients.
Does the Narcotic Drugs Amendment Act provide a defence for possession offences under the Queensland Criminal Code?
In short, possession and production of marijuana and cannabis products are still offences under the Drugs Misuse Act 1986 (Qld) and can carry serious penalties up to and including a term of imprisonment. The Narcotic Drugs Amendment Act 2016 (Cth) provides an avenue for legal production and possession, but is not a catch all defence for members of the public who are found in possession of marijuana or cannabis products or are involved in the production of cannabis.
It is important to recognise that, while the Act has legalised the production and possession of cannabis for certain people, those found in possession without lawful authority by way of a current licence to produce or in accordance with the Authorised Prescriber Scheme under the Therapeutic Goods Act continue to commit an offence under the Drugs Misuse Act 1986 (Qld).
For more information about your legal obligations in relation to medicinal marijuana