Between an Amnesty and Adult Use

Whilst the Australian public have belatedly accepted the notion of cannabis as medicine, its ongoing status as an illegal drug is still giving rise to unjust outcomes for those unfortunate enough to fall afoul of the law during these supposed End Days for Cannabis Prohibition.

Gavin* (assumed name) is a fit and healthy 18-year-old man with his whole life ahead of him. Gavin wants to be a builder.

Unfortunately for Gavin, the year is 1986 and he’s about to be the victim of a road accident which kills his brother. Gavin escapes with physical injuries which will result in chronic pain and arthritis later in life. He also receives a diagnosis of PTSD.

Fast forward to 2021 and Gavin is a now 53-year-old pensioner and is in (recent) remission from a Crohn’s disease flare up and recently dodged a melanoma scare. He also has Irritable Bowel Disease and lives alone or with transient housemates in a non-flash part of town in an Australian capital city. His arthritis and chronic pain have worsened with age and the symptoms of PTSD such as nightmares and panic attacks have “hovered like a floating anvil” around his head for 35 years. He never became a builder but managed to eek out a living as a painting contractor.

In the years immediately following the car accident, Gavin was afforded the best public medical care available. Whilst this involved some basic psychotherapy and pain management, it mostly involved opioids and benzodiazepines. The former blocked out the physical pain but resulted in crippling addiction. The latter were also addictive but provided a temporary comfort-cocoon from anxiety spikes. When taken mos’ def not as directed (ie, with booze), benzo’s bludgeoned him into non-restorative “black out” sleep and they resulted in crippling physical addiction.

This was a step above what David Heilpern calls the “barely bearable blur”. It’s what Gavin calls the “unbearable blackness”.

Thirty years ago and five years after the accident, Gavin was taking a myriad of prescribed and illicit drugs, including black market cannabis. If you apply an old school “drug, set and setting” analysis here, Gavin was just smoking cannabis as part of a wider, chronic pharmacological cocktail all geared at escaping from his pain, as is the default mode of all mammals.

After a few months of doing that, something happened to drastically change Gavin’s mindset and his approach to consuming cannabis. His use of opioids and benzos markedly dropped off and as the fog of their long-term use lifted, Gavin felt more stable and functional.

In a way, he rationalised that by “just using cannabis on its own and pissing off all the drugs and booze”, that the daily, incessant crushing physical and mental pain that he lived with became “pretty bearable and not a blur”. Specifically, his panic attacks lessened in frequency and intensity and his sleep improved dramatically.

I am a lawyer, not a doctor. Don’t read this and go and do a “Gav” if you’re one of the innumerable Australians who is researching access to medicinal cannabis online. Please consult with your doctor before to meddle with any form of psychoactive medications.

Gavin didn’t like the idea of buying cannabis from sources connected with organised crime, so in 1991 he attempted growing one plant in his backyard. The plant was pitiful and he got busted but not formally charged.

When cannabis medicines became legal in Australia in 2016, Gavin searched for a doctor who would be willing to treat him but was unsuccessful. Being a pensioner, the existing cannabis clinics were out of his financial reach. It wasn’t until the recent loosening of Telehealth restrictions in 2020 that Gavin was able to find an affordable “prescriber and product combo”, one that left him with $100 per week from his pension after rent and MC meds/consults paid for.

Gavin sold his car to fund his first $520 medicinal cannabis prescription (it’s not like he’d be legally permitted to drive anyway). Towards the end of 2020, his dispensing pharmacist hinted at future supply disruptions to his medications. Gav’s reaction to this was human and reasonable.

His options:

  • Request that his prescribing doctor give him new products, ones unaffected by supply interruptions. These are likely to be more expensive plus he has to pay the clinic an additional Telehealth consult fee; or
  • For half the price and surety of supply, he could go back to buying black market cannabis, likely sourced from organised crime syndicates.

Gavin has found that the therapeutic benefit he receives from cannabinoids is amplified for him when the products are clean and standardised, not random strains from an illegal, commercial indoor grow.

Around November 2020, Gavin chucked a couple of old seeds he found at the bottom of a drawer into the backyard. Four (again pitiful) cannabis plants grew (one female). In January this year, Gavin was raided by the police.

Despite him producing his prescribed cannabis medicines (and copies of prescriptions) no discretion in favour of issuing a caution was exercised.

Further, the officer in attendance stated that he himself was a shareholder in a medicinal cannabis company but that ‘when complaints are made about cannabis cultivation, no matter how trivial, the police are compelled to enforce the law’.

There is no law or professional standards obligation that prevents any serving Australian police officer from holding shares in a lawfully constituted company. But it is wholly inappropriate for an officer to discuss their medicinal cannabis shareholding portfolio whilst raiding a lawfully prescribed patient who could barely afford or access the products which generate the shareholder dividends for the officer.

Even if that officer expressed a view that medicinal cannabis products ought to be on the PBS.

A Statutory Amnesty?

It is irrefutable that the Australian public no longer expects or imputes the stain of criminal wrongdoing upon persons who possess or cultivate small amounts of cannabis for their own genuine self-medication purposes or do so in their capacity as a carer for a family member or cohabitant.

The Senate Community Affairs References Committee affirmed this by way of the final recommendation handed down as a result of its March 2020 inquiry into barriers to patient access to medicinal cannabis. An Amnesty.

The committee recommends that the Australian Government, through COAG, encourage a review of state and territory criminal legislation in relation to:

  • amnesties for the possession and/or cultivation of cannabis for genuine self-medication purposes; and
  • current drug driving laws and their implications for patients with legal medicinal cannabis prescriptions.

Gavin was charged with cultivating “not more than four plants”. He faces court in March.

A nationwide Amnesty obviously won’t come together in enough time to be of assistance to Gav. There’s too much to be put through the various parliamentary working groups/committees to decide precisely what “genuine self-medication purposes” should look like and what other limitations the legislation should have. Would an “infinite strike” rolling amnesty in effect be de-facto legalisation of cannabis for genuine self-medication purposes? Would the public policy wonks get a bee in their bonnet over the notion of persons creating and consuming their own unregistered medicines in their backyard with limited to no medical oversight? There’s a lot to iron out but the political will is required to formally start that process.

As of today, in NSW at-least, possession/cultivation momentum may now be swinging towards a broader swing at cannabis legalisation for Adult Use. I can’t bear to use the word ‘recreational’ because it sounds American and lackadaisical. Adult Use sounds so much more Canadian and sensible. Given the likely public policy obstacles involved in the sanctioning of persons making their own therapeutics goods at home, the brightest prospects for persons in Gavin’s legal position would appear to be a broadening of the ACT Model for cannabis possession/cultivation. However, given his success in using standardised cannabis oils, the lawful entitlement to grow four plants at home doesn’t immediately infer that his overall medical position is improved.

Whilst we’ve seen tremendous strides made in Victoria and South Australia regarding drug driving law reform, thus far the Amnesty for genuine self-medication purposes evades legislative momentum. In the absence of any meaningful progress being made by way of straight-out Adult Use legalisation for cannabis possession/cultivation (heck, even sale) then the unenviable fall-back position of pushing for a ‘mere’ Amnesty becomes crucial and, if you’re in Gavin’s position, it is dire and pressing.