Proposals for legalising cannabis in Australia

Senators David Leyonhjelm and Richard Di Natale have both recently made moves towards legalising at the Commonwealth level the use of cannabis for recreational purposes in Australia. They have done so for largely different reasons, and by advocating almost diametrically opposed approaches.


On the 9th of May, Senator Leyonhjelm introduced a Bill to the Parliament that would amend several Commonwealth acts under which cannabis is treated as a controlled drug with associated penalties. As such, the Bill would effectively remove Commonwealth barriers to the legalisation, regulation and taxation of cannabis. Currently, cannabis use for recreational purposes is illegal in all Australian jurisdictions, and each state and territory has laws that relate to the use, possession, and cultivation of cannabis. Were it to be passed in its current form, the Bill would enable any State or Territory Government to legalise and regulate the drug.


Senator Leyonhjelm’s main argument against the prohibition of cannabis use is that ‘adults should be free to make their own choices as long as they do not harm others’. In keeping with his invocation of John Stuart Mill’s ‘harm principle’—which has it that limiting people’s liberty is only justifiable to prevent harm to other people—and his classical liberal or libertarian stance more generally, Leyonhjelm’s Bill does not impose any new prohibitions on cannabis at the Commonwealth level. The Bill neither restricts the production or advertising of cannabis, nor imposes any excise on the drug. The Bill leaves to the states and territories the responsibility for imposing restrictions on the use of cannabis by children.


By contrast, the Greens’ plan to legalise cannabis for adult use is based on the argument that the drug’s prohibition has failed to deter its use and caused more harm than it has prevented. In the Greens’ view, treating cannabis use as a criminal rather than a health issue has resulted in drug users gaining criminal records, not seeking help with drug-related problems when they need it, and being exposed to the black market and other, more harmful, drugs.


While the Greens would like to see access to cannabis for recreational purposes made legal in Australia, under their plan—unlike under Senator Leyonhjelm’s Bill—the market for the drug would be highly regulated.


The Greens have proposed the establishment of an Australian Cannabis Agency that would be responsible for controlling both the market and tightly regulated licensed retailers. Their plan also calls for plain packaging for cannabis products and a ban on their advertisement, the imposition of an excise on cannabis, and a requirement for ‘service of cannabis’ training, among other things.


With regard to its broad parameters, the Greens’ proposed model of strict regulation is similar to that adopted by Uruguay, which legalised the cultivation, sale and use of cannabis in 2013. This contrasts with the generally more commercialised market arrangements established in the US states of Washington and Colorado in recent years. These arrangements resemble more closely Senator Leyonhjelm’s laissez-faire proposal. As at March 2018, eight US states and the District of Columbia had legalised cannabis for adult recreational use, with variations in the degree of government market regulation across these jurisdictions. In October, Canada is to follow suit.


In debates over whether or not the use of certain drugs should be made legal a key question that typically arises—and one that has been raised by the Greens—is, do existing laws cause more harm than they prevent?


As noted above, the Greens argue that the negative social and economic effects of cannabis prohibition outweigh any benefits that might arise from reducing cannabis use. In addition to the negative effects identified above, these include the monetary costs of enforcement, the lack of product regulation, foregone tax revenue, and, the loss of potential benefits of cannabis use (chiefly when used for medicinal purposes).


By contrast, those who argue against allowing access to cannabis for recreational and medicinal purposes typically emphasise that the drug is not as harmless as some proponents of legalisation might suggest. In particular, these individuals and organisations point to the links between cannabis and schizophrenia and other psychotic disorders in vulnerable individuals. It is largely on the basis of these risks that Minister for Health, Greg Hunt, has described the Greens’ proposal as being ‘dangerous and medically irresponsible’.


One of the main problems where it comes to debates over the merits or otherwise of legalising cannabis for recreational or medicinal use is that the evidence base with regard to the harms caused by cannabis is incomplete and in some cases conflicting and confounded. Further, because it is only relatively recently that cannabis use has been legalised (as opposed to decriminalised) for medicinal and recreational use in some jurisdictions, it is arguably too soon to determine the full effects of cannabis legalisation on use and harm rates under either a tightly government-regulated or market-based model. This makes for a difficult environment in which to make evidence-based drugs policy.


Senator Leyonhjelm’s Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 17 August 2018. The Greens have yet to introduce a Bill, and have given no indication as to whether or not they intend to do so.


Flagpost is a blog on current issues of interest to members of the Australian Parliament

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