A quick overview of the Victorian position is provided on its Health Department’s website.
Like NSW, the State has played a significant role in Australia’s move to re-introduce cannabis for medicinal use and was the first to make doing so legal in certain circumstances. Ironically, it was also the first to put controls on the drug back in 1928 which criminalised unauthorised use of hemp and resin.
A view of where Victoria sits in the over all scheme of things in Australia is provided in the Australian Cannabis Law Reform Movement’s article on the NimbinAustralia website with its excellent and well referenced backdrop to ‘the history, laws and International Treaties’ pertaining to the herb’s use generally throughout the country, including, obviously, the State of Victoria.
Today illicit cannabis use is governed by Victoria’s Drugs, Poisons and Controlled Substances Act 1981 and an ‘at a glance’ sketch of States and Territory laws provided by the National Cannabis Prevention and Information Centre (NCPIC) website says:
‘A police officer may give someone a caution and offer them the opportunity to attend a cannabis education program if they are caught with no more than 50 grams of cannabis. Like New South Wales, only two cautions are allowed to be given to the one person.’
In April 2016 however, the Government passed the Access to Medicinal Cannabis Act 2016 ‘to enable patients in exceptional circumstances to access legal medicinal cannabis products.’ It also sought to establish an ‘Office of Medicinal Cannabis’ to oversee ‘all clinical and manufacturing aspects of the medicinal cannabis framework.’
It did so following a decision in late 2014 to refer the matter to the State’s Law Reform Commission (VLRC) with an instruction to return no later that 1st August 2015, which the Commission did with a comprehensive, 288 page-long Report that formed the basis for the legislative changes.
The referral to the Law Reform Commission followed a change in Government after an earlier Bill, the Drugs, Poisons and Controlled Substances Amendment (Clinical Trials) Bill 2014 had been proposed by the Coalition.
In creating the Report, the Commission laid out its terms of reference, published an issues paper about which public submissions were invited then, in its own words, held ‘a series of consultations in Melbourne and regional centres with members of the public, health & legal professionals and government officials. It consulted by telephone with regulators and others involved with medicinal cannabis schemes in other countries and, as required by the terms of reference, convened panels of medical and regulatory experts’.
Those submitting to the Commission were invited to answer 17 specific questions relating to matters such as the definition of ‘exceptional circumstances’ under which patients might access the drug, areas where sufficient knowledge existed to make it a worthwhile therapy, desired regulatory mechanisms, legal interactions between Victoria and Federal institutions and rules, responsibilities and authority of healthcare providers, the forms in which the drug might be provided and how a Victorian scheme might keep pace with developments elsewhere.
Arguments pro- and con medical cannabis use are these days well-rehearsed in Australia and most of them emerged during the VLRC’s consultation process. A similar discussion would take place at Federal level when the Australian Senate’s Legal and Constitutional Affairs Legislation Committee held its own Public Inquiry into the proposed Regulator of Medicinal Cannabis Bill that went through the Senate in November 2014 to be replaced by the Narcotic Drugs Amendment Bill which passed into (national) law in February 2016.
The debate was, and continues to be essentially one between the medical, academic and pharmaceutical ‘Establishment’ and those working (and thinking) outside it. We have discussed the Commonwealth’s Public Inquiry in some detail in this section of the website (thus do not replicate the same exercise here). Suffice to say it pivots on those who believe, often passionately and from direct personal experience, that cannabis is in certain circumstances a life-saving drug and others, like the Australian Medical Association, who insist there is a lack of evidence of its efficacy. Exchanges to and fro, together with the often harrowing stories of those who have suffered and found relief provide an unrivalled portrait of the major issues, hence our analysis of the Senate Committee’s Inquiry – to which, it should be noted, the Victorian Government also contributed with its Submission No. 69.
Where the VLRC’s consultation is concerned, ninety nine submissions were received from the public and various organisations, including from many who, according to the VLRC final Report, ‘obtained it (cannabis – at varying cost) from people who specialise in the unlawful cultivation and refining of it for therapeutic purposes—in Victoria and interstate.’
‘Indeed,’ it continued, ‘several such producers attended the Commission’s consultations and some made written submissions. They conveyed a detailed knowledge of the cannabis plant, its varieties and refined versions, and expressed strong views about its potential therapeutic applications. In addition, an expansive submission on behalf of the ‘cannabis community’ of Victoria provided an account of illicit medicinal cannabis production and use in Victoria. Users who presently access cannabis for medicinal purposes receive significant advice and guidance from their suppliers, including instructions on strains, dosage and indications’.
The AMA was vocal within the process, repeatedly voicing concerns, saying doctors were not equipped to advise patients about cannabis and reiterating ‘medical practitioners are only able to conduct this crucial educational role as part of good medical practice, once conclusive clinical trials are conducted on the efficacy and side effects of medicinal cannabis.’
Individual doctors though varied in their responses – some taking the AMA position and others wanting to ‘supervise patients in using measured amounts of products of known quality and composition,’ although concerns were voiced about some patients declining conventional medicines because of claims made about cannabis.
Unabridged and in aggregate, the VLRC’s Report may be considered among the most thoroughgoing and exhaustive investigations of its type and an essential read for those with an interest in the discussion
Having reviewed a vast array of facts as well as he legal and regulatory landscape both internationally, nationally and locally within Victoria as well as what legal options would be open to the Victorian Government, the Commission made 42 recommendations. These covered such areas as regulation and regulatory objectives, patient eligibility, state and commonwealth cooperation, cultivation and manufacture of cannabis and cannabis products, dispensing and research & evaluation.
It led, as we have said, to passage of the Access to Medicinal Cannabis Act 2016 and an announcement the State had earmarked $28 million to grow and research its own medicinal cannabis and was establishing an Office of Medicinal Cannabis.
Following the VLRC’s Report, the intent of which had always been to lay the groundwork for legalisation of the medical herb, Victoria almost certainly would have proceeded with or without changes in Federal law, and indeed the Government cited State level activity as a reason for amending the law, as a Risk Impact Statement exploring the proposed move makes clear.
But many had wanted to see a national body created with blanket responsibility for everything to o with the drug, from production through to registration of products and access by doctors and patients. Such an entity would probably have relieved States and Territories from much, if not all of the regulatory burdens they face today.
The Senate’s Regulator of Medicinal Cannabis Bill of 2014 had proposed exactly that but instead, in February 2016, after a Public Inquiry into the Bill by the Senate’s Standing Committee on Legal and Constitutional Affairs, that Bill was replaced by the Narcotic Drugs Amendment Act. This forced cannabis and cannabis products through existing regulatory processes governed by the Therapeutic Goods Act 1989 and overseen by the Federal Government’s powerful Therapeutic Goods Administration – the Government Department that both controls and regulates access to to existing, registered medicines and, via a rigorous, costly and time-consuming registration process, decides which new medical products reach the Australian market.
A new sister organisation to the TGA, called the Office of Drug Control was also established to allocate licenses and permits – with onerous qualifications placed upon applicants – for the cultivation of the herb and also the manufacture of products from it.
States and Territories would provide a second tier of licensing to adhere to national and state-level legislation & regulation and Victoria is no exception. Although its own Office of Medical Cannabis will oversee cultivation and manufacture of cannabis products, the education of clinicians and also eligibility for use – initially among children with severe epilepsy – as well as its future roll-out to other patient groups, ODC licences and permits mentioned above are still required.
And until products become available sometime in 2017, Victoria’s Health Minister Jill Hennesy has said she expects police to be tolerant of parents who continue to break the law by obtaining the drug on the black market. ‘I’ve got every confidence that Victoria Police exercise their powers sensibly and willingly, but until we have a product that we’re able to safely and lawfully provide to support these patients, it is very, very difficult,’ the ABC reported.
At the end of October 2016 the Melbourne Herald Sun reported ‘Drug and research giants are eyeing Victoria to grow medicinal cannabis crops.’