Cannabis and the law in Queensland
In Queensland the main pieces of Commonwealth and State legislation governing cannabis for medical purposes are:
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Therapeutic Goods Act 1989 (Cth)
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Poisons Standard 2015 which incudes the Standards for Scheduling of Medicines and Poisons (the "SUSMP")
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Customs Act 1901 and Customs (Prohibited Import) Regulations 1956 (Cth)
Health Legislation
Queensland along with Western Australia are the only two states/territories that did not adopt the Commonwealth Therapeutic Goods Act 1989 into State health legislation.
However the Queensland Health Act does adopt the Commonwealth Poisons Standard (the "SUSMP"). The schedules are recommendations only to the states and territories about the classification and the scheduling of therapeutic substances including cannabis, cannabis resin and cannabinoids. Cannabis, cannabis resin and cannabinoids are classified as shcedule 9 substances, except where listed separately for example CBD (2% or less THC and the other cannabinoids) is included in Schedule 4, and nabiximols (THC 27% and CBD 25%) a botanical cannabis alcohol extract, is listed in Schedule 8.
The Customs Act and Customs (Prohibited Import) Regulations applies to the import and export of cannabis, cannabis resin and cannabinoids.
The Health Act 1937 (QLD) contains a comprehensive range of provisions and powers for regulations to be made about the cultivation, manufacture, licencing, possession, prescription, dispensing, administration, and use of drugs, medicines and poisons. It also contains a number of provisions for advertising, labelling and packaging, and enforcement and monitoring.
The Health (Drugs and Poisons) Regulation 1996 (QLD) contains provisions for the manufacture, possession, prescription, dispensing, administration, and use of drugs, medicines and poisons, and associated activities.
The Health Regulation 1996 (QLD) sets out standard operating procedures for dispensing and dispensaries and imposes controls over the advertising, promotion and labelling of therapeutic substances.
Prior to recent changes to Regulation 270A, the Health (Drugs and Poisons) Regulation prohibited the Chief Executive Officer of Queensland from granting approvals for the use, cultivation, possession, supply, manufacture and prescription of s9 substances in the State of Queensland.
Medical Cannabis Approvals 2015
Prior to the Premier and Cabinet making amendments to the Health (Drugs and Poisons) Regulation 1996, the only cannabis type susbtance for prescription and supply in Queensland was dronabinol, a synthetic form of (delta-9-tetrahydrocannabinol (THC).
Before these changes Regulation 270A of the Health (Drugs and Poisons) Regulation prohibited the granting of approvals for the use of botanical cannabis for therapeutic use in Queensland as follows: the “the Chief Executive Officer must not grant an approval to a person to manufacture, obtain, possess or use a S9 poison for human therapeutic use.” Prioer to the changes Queensland patients could not be prescribed Schedule 9 botancial cannabis or Sativex a Schedule 8 product. Sativex is the only cannabis based medicine registered on the Australian Register of Therapeutic Goods (ARTG).
Queensland Bills
There are currently two new health Bills in Queensland that will impact on cannabis for medical purposes in the future.
On 10 May 2016 the Bill was introduced into the Queensland Parliament and will replace the current approval provisions for doctors and pharmacists that havein the Health (Drugs and Poisons) Regulations create a new regulatory framework under which medicinal cannabis products may be prescribed and dispensed to patients in Queensland and provides a formalised process for doctors to follow if they want approval to prescribe medicinal cannabis as part of their patient’s overall treatment.
The Medicines, Poisons and Therapeutic Goods Act and Medicines, Poisons and Therapeutic Goods Regulation propose to adopt the Therapeutic Goods Act 1989 as a law of Queensland, and will replace the Health Act 1937, Health (Drugs and Poisons) Regulation 1996 and the Health Regulation 1996. The Department of Health have finalised its public consultations in preparation for the introduction of the Bill into the Legislative Assembly.
Criminal Legislation
The Drugs Misuse Act provides for a number of criminal offences and penalties that apply to cannabis including the offences of "unlawfully" drug trafficking in dangerous drugs, producing (cultivation), possession and supply and provisions for the defences of "authorisation" and "justification or excuse" by law. Part 5B of the DMA contains provisions for the industrial cultivation and use of cannabis.
The Criminal Code 1899 (QLD) contains the defences of justification and excuse and extraordinary emergencies, and a number of legal duties that may apply to for example carers, legal guardians and doctors including the duty to provide the necessaries of life.
Defence of Necessity
Justification and excuse are also referred to as the common law defence of necessity. The defence of necessity provides that “A man may break the law, and yet not break the law itself …. where the words of them are broken to avoid a greater inconvenience, or through necessity, or by compulsion.”
Medical Cannabis Cases
Provides an overview of medical cannabis cases from Australia and overseas.