2022-2023

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

LEGALISING CANNABIS BILL 2023

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Shoebridge)

 

 

LEGALISING CANNABIS BILL 2023

 

OUTLINE

 

The Legalising Cannabis Bill 2023 introduces an Act to legalise cannabis for adult recreational use in Australia. The Act introduces provisions for cannabis strains to be registered and regulates activities relating to cannabis use including growing, selling, and manufacturing. The Act establishes the Cannabis Australia National Agency (CANA), which will have primary responsibility for licensing and regulating cannabis trade.

 

NOTES ON CLAUSES

Part 1—Preliminary

Clause 1: Short Title

1.           Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.           Clause 2 provides that this Act will commence on the day after the end of the period of 3 months beginning on the day the Act receives Royal Assent.

Clause 3: Simplified outline of this Act

3.           This clause provides a simplified outline of the Act the Bill introduces.

 

4.           It specifies that the Act provides for cannabis strains to be registered and regulates certain activities relating to cannabis. It also requires the Cannabis Australia National Agency to keep a Register of Cannabis Strains either by its own initiative or on application.

 

5.           The bill also creates a regulatory scheme which makes it an offence to undertake certain activities without a licence. These include importation and export of cannabis products, growing, manufacturing or selling cannabis products.

 

6.           The bill does not create criminal penalties for the possession of cannabis products by minors.

 

7.           CANA will be authorised to issue licences for regulated cannabis activities including:

a)       growing cannabis plants;

b)       selling cannabis products;

c)       manufacturing cannabis products;

d)       operating a Cannabis Café;

e)       importing and exporting cannabis products.

 

8.           The Cannabis Australia National Agency will also have power to determine labelling, packaging and storage requirements for cannabis products.

 

9.           The outline is included to assist readers to understand substantive provisions of the Bill, and this outline is not intended to be comprehensive. Readers should rely on the substantive provisions.

Clause 4: Crown to be bound

10.         Clause 4 provides that the Bill binds the Crown in each of its capacities, but does not make the Crown liable to be prosecuted for an offence.

Clause 5: Extension to external Territories

11.         Clause 5 provides that the Bill extends to every external Territory.

Clause 6: Interaction with other laws

12.         Clause 6 provides that the Act has effect despite any other law of the Commonwealth, whether enacted before or after the commencement of this Act. It provides that nothing in the Act affects anything done in accordance with a medicinal cannabis licence or a medicinal cannabis permit. It does not provide for the Act to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

Part 2—Interpretation

Clauses 7 to 10: Definitions

13.         Clauses 7 to 10 provide definitions for terms used in the Bill. These provisions provide critical definitions for terms in the Bill.

Agency means the Cannabis Australia National Agency.

approved RSC training means responsible service of cannabis training approved in writing by the Agency for the purposes of this definition.

cannabis means:

a)       a cannabis plant; or

b)       cannabis resin; or

c)       any other form of cannabis (including flowering or fruiting tops, leaves, seeds or stalks, but not including cannabis fibre).

cannabis advertisement : see section 8.

cannabis plant means any plant of the genus Cannabis.

cannabis product means:

a)       cannabis (in any form); or

b)       any product:

i)        that contains cannabis as its main or substantial ingredient; and

ii)      that is designed or intended for human consumption or use.

cannabis strain means a cannabis plant grouping that is distinguishable from another cannabis plant grouping on the basis of one or more botanical, ethnobotanical or genetic identifiers.

CEO means the Chief Executive Officer of the Agency.

excluded person means:

a)        a person that engages in one or more of the following:

i)        the production or manufacture of alcohol or alcohol products;

ii)      the production or manufacture of tobacco or tobacco products;

iii)    the production or manufacture of pharmaceutical products (other than cannabis for medicinal or scientific purposes); or

b)        a person of a kind prescribed by the regulations;

and includes any related entity (within the meaning of the Bankruptcy Act 1966 ) of such a person.

Indigenous person means a person who is:

a)        a member of the Aboriginal race of Australia; or

b)        a descendant of an Indigenous inhabitant of the Torres Strait Islands.

licence means a licence issued under section 28.

offence against this Act includes an offence against Chapter 7 of the Criminal Code that relates to this Act.

police officer means a member of the Australian Federal Police or of the police force of a State or Territory.

publish a cannabis advertisement : see section 9.

Register means the Register of Cannabis Strains kept under section 11.

registered cannabis strain means a cannabis strain registered on the Register.

regulated cannabis activity : see section 10.

regulated trade or commerce means trade or commerce:

a)       between Australia and places outside Australia; or

b)       among the States; or

c)       between a State and a Territory or between 2 Territories; or

d)       by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.

State or Territory co-operatives register means the following:

a)       the register of co-operatives established under the Co-operatives (Adoption of National Law) Act 2012 (NSW);

b)       the register of co-operatives established under the Co-operatives National Law Application Act 2013 (Vic.);

c)       the register of co-operatives established under the Co-operatives National Law Act 2020 (Qld);

d)       the register of co-operatives established under the Co-operatives Act 2009 (WA);

e)       the register of co-operatives established under the Co-operatives National Law (South Australia) Act 2013 (SA);

f)        the register of co-operatives established under the Co-operatives National Law (Tasmania) Act 2015 (Tas.);

g)       the register of co-operatives established under the Co-operatives National Law (ACT) Act 2017 (ACT);

h)       the register of co-operatives established under the Co-operatives (National Uniform Legislation) Act 2015 (NT).

14.       Clause 8 provides a definition of ‘cannabis advertisement’.

15.       Clause 9 has a broad definition of publishing relating to advertising to include publishing on any medium including physical and digital.

16.       Clause 10 is intended to provide an extensive list of activities in relation to cannabis that can be regulated under the Bill including growing, manufacturing and selling cannabis products.

Part 3—Registration of cannabis strains

Clause 11: The Register

17.         Clause 11 provides for CANA to establish and maintain a Register of Cannabis Strains in any form it deems appropriate.

Clause 12: Power to register a cannabis strain

18.       Clause 12 provides for CANA to decide whether to register a cannabis strain on the Register. Registration can be initiated by the Agency or by application. In deciding to register a strain the Agency must take into account any matters prescribed by the regulations.

Clause 13: Application to register a cannabis strain

19.         Clause 13 provides that a person may apply to CANA for the registration of a cannabis strain, requirements they must meet to apply, and any fees that must be paid in association with that application.

Clause 14: Consequences of registration of a cannabis strain

20.         Clause 14 provides that the registration of a cannabis strain does not affect the intellectual property rights of any person.

Clause 15: Other matters relating to the Register and registration of cannabis strains

21.         Clause 15 provides that the regulations may make provision for and in relation to any other matter relating to the Register and the registration process.

Part 4—Regulation of cannabis

Division 1—Offences

22.         Division 1 of Part 4 prescribes penalties for activities that are considered offences under the Act.

Clause 16: Offence—importation of cannabis products

23.       Clause 16 says it is an offence to import cannabis products unless authorised by a licence. The penalty is for up to a maximum of imprisonment for 2 years or 2,000 penalty units, or both.

Clause 17: Offence—exportation of cannabis products

24.       Clause 17 says it is an offence to export cannabis products unless authorised by a license. The penalty is for up to a maximum of imprisonment for 2 years or 2,000 penalty units, or both.

Clause 18: Offence—growing cannabis plants

25.       Clause 18 provides that it is an offence to grow cannabis plants unless authorised by a licence or growing 6 or fewer plants at home. The penalty is imprisonment for up to 6 months or 200 penalty units, or both.

Clause 19: Offence—manufacturing cannabis products

26.       Clause 19 provides it is an offence to manufacture cannabis product unless authorised to do so, or doing so at home for personal use. The penalty for a breach of this is up to imprisonment for 6 months or 200 penalty units, or both.

Clause 20: Offence—selling cannabis products without a licence

27.       Clause 20 provides it is an offence to sell a cannabis product without a licence. There is an exception for where the sale is less than $50 or an amount prescribed by the regulations. The maximum penalty for this is imprisonment for 6 months or 200 penalty units, or both.

Clause 21: Offence—selling cannabis products to minors

28.       Clause 21 provides that it is an offence to sell cannabis products to minors with the offence established if the person sells the product, the sale is a regulated cannabis activity and the person knows, or is reckless as to whether, the other person is under 18 years of age. The penalty is a maximum of imprisonment for 6 months or 200 penalty units, or both.

Clause 22: Offence—allowing minors to have access to cannabis products

29.       Clause 22 provides that it is an offence to allow minors to have access to cannabis products where it is done knowingly and they know or are reckless as to whether the other person is under 18 years of age.

Clause 23: Offence—publishing cannabis advertisements

30.       Clause 23 creates an offence for publishing cannabis advertisements in Australia where they are published in the course or business or for commercial purpose. The penalty for this is a maximum of imprisonment for 6 months or 200 penalty units, or both.

31.       It is permitted under this clause for point of sale advertising to occur. This would need to comply with the requirements for such advertising as specified in the regulations.

Clause 24: Offence—publishing cannabis advertisements electronically

32.       Clause 24 creates an offence paralleling 23 but applicable to online advertising where there is an explicit exemption for a licensed cannabis cafe to have an internet presence again in the form prescribed by the regulations.

33.       Relevant advertising is that published in Australia which includes matters where there is an Australian link or it is accessible to or intended to be accessible to people in Australia. 

Division 2—Other regulated conduct

 

Clause 25: Possession of cannabis products by minors

34.       Clauses 25 specifies that possession of cannabis products by minors is not a criminal offence but the cannabis product may be seized and destroyed by a police officer.

Clause 26: Possession of cannabis products by other persons

35.       Clause 26 explicitly clarifies that possession of cannabis that includes a registered strain, or a includes a cannabis product subject to a licence is not an offence despite any Commonwealth or State or Territory laws to the contrary.

Division 3—Licences

Clause 27: Applications for licences

36.       Clauses 27  sets out how a person may apply for licenses.

37.       Clause 27 specifies that a person can apply for a licence to undertake one or more regulated cannabis activities. Application fees may apply at a level set by CANA and must meet requirements specified in the regulations.

38.       There is no licence fee for First Nations people or a body corporate controlled (within the meaning of section 50AA of the Corporations Act 2001 ) by one or more Indigenous persons.

39.       A person may be temporarily or permanently disqualified from applying for a licence if they have seriously or repeatedly breached the Act or licence conditions.

Clause 28: Agency may issue licences

40.         Clause 28 provides the conditions under which a licence to undertake one or more regulated cannabis activities can be and issued by CANA.

Clause 29: Conditions of licences—general

41.         Clause 29 provides the conditions a general licence to undertake one or more regulated cannabis activities is subject to. This includes specific requirements to not sell or make cannabis products accessible to minors, compliance with labelling requirements, a ban on promotional activities, compliance with Responsible Service of Cannabis training, zoning compliance, and compliance with applicable licence and regulations.

Clause 30: Conditions of licences—operating a Cannabis Café

42.       Clause 30 provides the conditions a general licence to operate a Cannabis Cafe is subject to. This includes ensuring any consumption by smoking is outdoors, does not unreasonably interfere with members of the public and complies with applicable local regulations.

43.       Cafes are also requires to comply with any conditions relating to sale or consumption imposed by the agency. In setting these conditions the Agency will consider responsible service of cannabis, reasonable quantities for use, privacy and geographical factors. Rules can be imposed to limit online sales to areas around cafes. If this is done written notice is provided to the licence holder.

Clause 31: Other matters relating to licences

44.         Clause 31 provides that the regulations may make provision for and in relation to any other matter relating to licences including time limits, rights of review and transfer of licences. .

Division 4—Labelling, packaging and storage requirements

Clause 32: Labelling, packaging and storage requirements for cannabis products

45.         Clause 32 provides that CANA may determine labelling, packaging and storage requirements for cannabis products that are for sale, where such sales are regulated cannabis activities.

46.       This is explicitly intended to include such information as safety, dosage and organic status as well as requirements for child safe packaging.

 

 

Part 5—Cannabis Australia National Agency

Division 1—Agency’s establishment, functions, powers and liabilities

Clause 33: Cannabis Australia National Agency

47.       Clause 33 establishes CANA as a listed entity, with the CEO as the accountable authority with functions established in clause 39. Agency officials include the CEO, staff and consultants. The functions of the agency are set out in clause 35.

Clause 34: Constitution of the Agency

48.       Clauses 34 provides CANA consists of the CEO and staff of the agency.

Clause 35: Functions of the Agency

49.        Clause 35 says CANA has functions including regulating cannabis activity in the broad public interest, maintaining the register of strains of cannabis, issuing and overseeing licences, being available to test cannabis products as needed, seeking data about cannabis sales and use, approving responsible service of cannabis training, advising the Minister of the operations of the Act and any other functions as needed. 

Clause 36: Powers of the Agency

50.       Clause 36 says CANA has the powers needed to achieve its legislated functions.

Clause 37: Agency has privileges and immunities of the Crown

51.         Clause 37 provides that CANA has the privileges and immunities of the Crown in right of the Commonwealth.

Division 2—Chief Executive Officer

Clause 38: Chief Executive Officer

52.          Clause 38 establishes that there is to be a Chief Executive Officer (CEO) of CANA.

Clause 39: Functions of the CEO

53.         Clauses 39 provides the functions of the CEO are to manage the affairs of the Agency, and to ensure the Agency performs its functions.

Clauses 40 and 41: Appointment of CEO and acting appointments

54.         Clauses 40 and 41 provide the circumstances for appointing the CEO. The CEO is appointed by the Minister as a full time position and for a term not exceeding 5 years. A person can be reappointed to the position if the Minister determines this is appropriate. Under clause 41 the Minister can also appoint an Acting CEO.

Clauses 42 and 43: Remuneration and leave

55.         Clauses 42 and 43 provide the remuneration and leave entitlements for the CEO are to be determined by the Remuneration Tribunal or failing this in the regulations.

Clause 44: Engaging in other paid work

56.         Clause 44 provides restrictions on the CEO engaging in other paid work outside the duties of their office without the Minister’s approval.

Clause 45: Resignation

57.       Clause 45pecifies the CEO can resign by giving the Minister written notice for that day or a future date. 

Clause 46: Termination of appointment

58.         Clause 46 provides the circumstances for ending the CEO’s appointment by the Minister for misbehaviour or incapacity. The Minister can also terminate the appointment if the CEO becomes bankrupt or insolvent, is absent without leave for 14 days in a row or 28 days in any 12 months, fails to disclose relevant interests per section 29 of the Public Governance, Performance and Accountability Act 2013 or engages in other paid work without permission .

Clause 47: Other terms and conditions

59.         Clause 47 provides that the CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

Division 3—Staff of the Agency etc.

Clause 48: Staff

60.         Clause 48 provides that the staff of CANA must be persons engaged under the Public Service Act 1999.

Clause 49: Persons assisting the Agency

61.       Clause 49 says CANA may be assisted by officers or employees of Agencies of the Commonwealth, State or Territory. These officers and employees are subject to the directions of the CEO while this assistance is occurring.

Clause 50: Consultants

 

62.         Clause 50 provides the terms and conditions for engaging third parties for CANA.

 

Part 6—Miscellaneous

Clause 51: Annual report

63.         Clause 51 provides that the CEO must, when preparing CANA’s annual report, include a summary of de-identified national data about regulated cannabis activities during the period.

Clause 52: Delegation by the CEO

64.         Clause 52 provides that the CEO may delegate their functions and powers to an SES employee, or acting SES employee .

Clause 53: Protection from liability

65.         Clause 53 provides that the CEO, a member of the staff of CANA, a person assisting CANA, or a third party engaged by CANA, are not liable to civil proceedings in relation to an act done, or omitted to be done, in good faith, in the performance or purported performance, or exercise or purported exercise, of the person’s functions, powers or duties under or in relation to this Act.

Clause 54: Review of this Act

66.         Clause 54 provides that a review of this Act should be conducted at least once every 5 years with a written report to be provided to Parliament.

 

Clause 55: Funding

 

67.         Clause 55 clarifies that expenditure for the purposes of the Act is to be made from funds appropriated by the Parliament.

 

Clause 56: Regulations

 

68.         Clause 56 provides that the Governor General may make regulations prescribing matters required or permitted by this Act to be prescribed by the regulations; or necessary or convenient to be prescribed for carrying out or giving effect to this Act. This can include powers for forfeiture for materials used in offences against the Act.

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Legalising Cannabis Bill 2023

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Legalising Cannabis Bill 2023 introduces an Act to legalise cannabis for adult recreational use in Australia.

The Act introduces provisions for cannabis strains to be registered and regulates activities relating to cannabis use including growing, selling, and manufacturing. It operates by regulating strains of cannabis and does so in a way that does not impact any existing intellectual property rights.

The Act establishes the Cannabis Australia National Agency (CANA), which will have primary responsibility for licensing and regulating cannabis trade.

 

Human rights implications

The Bill advances Human Rights to Equality and Non-discrimination, and to Work, as it addresses, to the extent possible provided by its content, historical and ongoing injustices towards Indigenous peoples.

Legalisation would significantly reduce the harms caused to Human Rights by the war on drugs and the policing and incarceration that the community is currently subject to as a result of this.

By ending a significant part of the War on Drugs the Act engages rights to equality and non-discrimination - contained in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Racial Discrimination. Given the significant evidence of the racially biased impacts of the War on Drugs in Australia this is considered a substantial change that promotes human rights.

By removing penalties applicable to children including incarceration as a result of current cannabis offences the bill also engages positively with the rights in the Convention on the Rights of the Child.

Special measures are introduced by the Bill - including positive action by CANA in considering applications by Indigenous persons to apply to register a strain of cannabis or for a licence - to address historic injustices towards Indigenous peoples as a result of decades of over-policing of cannabis related laws and to address significant ongoing barriers for Indigenous peoples to enjoy their right to work.

 

 

Conclusion

The Bill is compatible with human rights because it advances the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Senator Shoebridge