Public Consulted: The Arguments for and Against

You have to know the past to understand the present.’ Carl Sagan


If the History & Background section of this site explained what the Government did about legislating for medicinal cannabis, this section tries to explore why.

From early 2014 the media began taking an interest in what was turning into a vocal campaign by a diverse collection of individuals scattered across Australia.  For these people cannabis seemed – in some cases – to be a life-saving medical option and for others it offered such a dramatic improvement in their quality of life, breaking the law seemed worthwhile. But these weren’t ‘normal’ criminals and they weren’t using the drug to get high.

Indeed, the most prominent among them, Lucy Haslam, whose son Dan was fighting bowel cancer and using cannabis to fend of the ravages of chemotherapy, was a conservative ex-nurse and cafe owner whose husband – a former police officer – had spent years undercover in the Drug Squad.

After Channel 7 aired its Sunday Night TV show in June of that year featuring the Haslams and other families openly using the drug (and risking arrest in the process) matters really caught fire. By this time Mrs Haslam’s petition to Australian Prime Minister Malcolm Turnbull and Health Minister Jillian Skinner calling on them to legalise medical cannabis was well underway and Dan’s story had already become a cause célèbre in their home State of NSW but now the movement went national.

It’s easy to see why the media loved such stories – their human interest value was almost unprecedented. Here were ordinary people thrust into often terrible situations sometimes involving very young and very sick children doing extraordinary things. Not only were they committing civil disobedience and placing themselves in harm’s way by using a completely illegal drug procured from the black market, in a great many cases the treatment appeared to be working.

Green Party Leader Senator Richard Di Natale and three other Senators from the Liberal and Labour Parties introduced the Regulator of Medicinal Cannabis Bill to their Chamber later the same year which was moved with wide cross-bench support.

Had the Bill been enacted, a national body – the ‘Regulator of Medicinal Cannabis’ – would have been created with blanket responsibility for everything to do with the drug, from production through to registration of products and access by doctors and patients. Such systems were in place elsewhere – Holland and Canada are two examples, Israel is another – and were operating successfully.

Such an entity though would have by-passed the Commonwealth’s existing regulatory mechanisms (discussed in the ‘History & Background section) and those of the States and Territories, standing alone as a single-purpose organisation tasked with policing and implementing all things medical cannabis.

But once the Senate Bill had received its second reading it was passed for consideration to that Chamber’s Legal and Constitutional Affairs Legislation Committee which opened a Public Inquiry.

Other similar exercises were either taking place, or had or would do around the country. Five among the States and Territories all had their own separate Inquiries into the matter, plus a further such adventure at Federal level when the Therapeutic Goods Aministration consulted the public about re-scheduling cannabis in its Poison Standard, making a total of seven in all, each discussing largely the same thing. (Victoria’s is here, the ACT’s has been removed from the Web, Queensland here, Tasmania here and NSW here. The TGA’s is here).

It is though the main Federal Inquiry this section discusses since the information and opinion it unearthed helped form the cornerstone of what the Australian Parliament did next – which was, in simple terms, to amend legislation already in place (the Narcotic Drugs Act 1967) so that the cultivation of cannabis for medical and research purposes became lawful. Against the final recommendation of the Committee, it rejected the idea of a separate, dedicated Regulator and instead placed responsibility for some elements of the medicinal herb in the hands of its customary body, the Therapeutic Goods Administration; other aspects would be overseen by proposed new organisation, the Office of Drug Control and others still shared between the States and Territories and / or the TGA and / or the ODC.

It would also amend the status of the drug in its Poison Standard from a Schedule 9 (‘Prohibited’ substance) to a Schedule 8 (‘Controlled’ one) and further legislate to enable itself to issue permits and licences to grow and manufacture products from cannabis and to collect fees in respect of such licences.

The new legislation and regulations became operative in November 2016.

The Australian Senate’s Inquiry was the biggest and in some ways most important since a Regulator of Medicinal Cannabis – had such a thing been created – would have set the terms not only for how the drug was to be grown but also how it was accessed, including within States and Territories.

But the idea proved controversial; powerful forces strongly opposed such a move, and for a whole host of reasons. Others – like Lucy Haslam and some of her fellow campaigners – felt differently, seeing an urgency in ensuring those who needed what was in some cases an essential medicine could get it – legally. And soon: lives were depending on it.

A single-purpose Regulator as proposed by the original Senate Bill might have provided the answer but this was never to be. Organisations like the Australian Medical Association and other peak national bodies strenuously denounced the idea arguing cannabis should be treated like any other drug and put through the normal testing and regulatory processes that were already in place, otherwise, they said, doctors would never prescribe it.

The Head of the Commonwealth’s Department of Health too was opposed, saying a plethora of laws and regulations stood in the way and that the Bill failed to offer a ‘coherent, clear and workable’ legislative framework. The United Nations Single Convention on Drugs – to which Australia is a signatory – was also mentioned, amid fears the Regulator Bill might contravene it, placing the country’s $300 million poppy industry at risk.

A bespoke, specially convened, single-purpose regulator as proposed by the original Senate Bill would unquestionably have streamlined the process for growing and making the drug available more immediately for those with a genuine need. But such was the level of hostility and from such prestigious institutions and individuals, the opposition was, in the end, to prove fatal. The Bill, as we now know, together with its new Regulator, would be ditched, replaced by the Narcotic Drugs Amendment Act of February 2016.

The argument was, and continues to be, essentially one between what might be called the ‘Establishment’ and those working (and thinking) outside it.

‘Establishment’ is not meant here in a particularly derogatory sense, for some of the points raised antithetic to the concept of a Medicinal Cannabis Regulator are valid. But so are many of those that had favoured it; in both the public submissions and during the hearings that took place in 2015 the arguments went to and fro.

Those for whom the present tried and trusted system works and works well felt the Bill would be subversive, that treating cannabis differently from other drugs was wrong or even dangerous.

For them, as we have said, it was to be viewed like any other drug and forced into a rigorous and expensive evaluation process leading to final official approval. This way, went the thinking, doctors would feel comfortable and reassured in prescribing what would be a standardised, fully understood product and patient safety had been considered. The TGA, they argued (successfully, as it turned out) was just the body to do this, hence there was no need existed for a new, stand-alone body specific to cannabis and cannabis products. Many of them also maintained insufficient proof existed that medical cannabis works, or more precisely that the evidence was ‘anecdotal.’

Others of course see it differently. Cannabis, they say, is unique and should therefore be treated as such. Its complex chemistry of active ingredients, said to have an ‘entourage effect‘ – in other words, work in tandem with one another – make it difficult or impossible to evaluate by normal means as one might do other drugs. This is because conventional medicines are developed using a single compound to perform a single task and that is how they’re evaluated. And cannabis just doesn’t work in that way. Moreover, because it’s a herb -and easy to come by at that – few pharmaceutical companies would be prepared to invest in something they’d be unlikely to be able to patent. But unless they did so the drug could not be put through ‘the system’.  And just to make matters worse, its numerous strains (or ‘cultivars’) work differently on different people, even those with similar conditions. So under the existing regime, no possibility of ‘trial and error’ until the ‘right’ strain was found could take place.

A new, specialist regulator could also take national view of the matter avoiding a ‘postcode lottery’ in relation to the drug’s availability which the involvement of State and Territory legislation would lead to. And last but by no means least were the parents of children with terrible conditions such as the rare forms of intractable epilepsy for whom no other drug save cannabis did the slightest of good and was therefore a life-saving drug. To people like these, sceptics and naysayers were simultaneously helping to criminalise them and putting young loved-ones at risk, so passions were running quite high.

The Inquiry, which comprised three full days of evidence from expert witnesses and over 250 public submissions, led the Senate Committee to recommend the Bill in question be passed. But it also highlighted what its sponsor, Sen. Richard Di Natale, at the time called ‘minor concerns‘.

Following that recommendation and enacting the Bill would have been a bold move on the part of the Government and one that would have doubtless dismayed those who had railed so trenchantly against it.

But the Government did what Governments most often do and compromised, steering a middle course and taking what it must have seen as the path of least resistance. Further details of this are explored in the History and Background section of the site but the discussion that led to it is equally, if not even more important. It’s difficult forming any opinion on the matter, or even fully understanding it, without looking at the particulars.

For that reason we’ve taken the Senate Committee Inquiry apart, first looking at the Public Submissions (of which there were around 212 with a number of ‘standard’ letters and a few that were ‘confidential’). For ease of reference, these have been divided (as best we can) into six categories: experts that were opposed to the Bill and proposed Regulator, experts in favour of them, ‘ordinary’ individuals in favour, organisations in favour, organisations opposed and ‘others’. We then link to the original submission and provide a brief summary.

The three Public Hearings are each given their own page again with a brief summary of what occurred on respective days, though these are no substitute for the Hansard reports – verbatim accounts of proceedings. These are also linked to.

Lastly, we consider the Committee’s final Report and Recommendations  – a fair-minded and thoroughgoing affair summarising and considering all major points before concluding with its six suggestions, including that the Bill be passed into law.

Together the documents provide an exceptional portrayal of the arguments and variety of opinion that surround medicinal cannabis as well as a fascinating glimpse into some of the many lives it affects. It’s impossible not to be moved by many of the stories that have so gripped the media or be amazed at the claims being made of the drug.  Arguments unfold as one reads – involving a rich cast of characters it would be almost impossible to invent. Reputations – some of them international – were put at stake, insults, veiled and politely phrased, were traded and occasional bouts of annoyance or genuine anger were shown.

Many of the submissions are extraordinary in their own right as well, displaying levels of scholarship, expertise and knowledge which, together with their superb referencing, allow and encourage the reader to explore the subject in remarkable breadth and depth.

Cataloguing and describing these things does not do them full justice – only reading them can do that. And from doing so is likely to come a greater understanding of what the issues are and why they are so important.