Federal parliament could override state laws to legalise recreational marijuana use, according to new constitutional advice obtained by the Greens.
As the minor party ramps up its campaign to legalise cannabis ahead of a planned private member’s bill to be introduced next year, the Greens’ justice spokesperson, David Shoebridge, said the advice from constitutional lawyer Patrick Keyzer paved the way for new federal laws.
The advice suggests that there are three commonwealth heads of power that would enable it to legalise and regulate cannabis use, with the clearest pathway via a part of section 51, which relates to copyrights, patents of inventions and designs, and trademarks.
Prof Keyzer’s advice states that section 51(xviii) enables the commonwealth to regulate plant variety rights, and the commonwealth “could regulate cannabis strains as plant varieties and cause them to be listed in a schedule in respect of which the commonwealth has exclusive regulatory control.”
Keyzer is a constitutional and human rights lawyer and dean of the Thomas More Law School at the Australian Catholic University.
The Greens say that empowering the commonwealth to regulate the cultivation, licensing and sale of cannabis – including the measures needed to create a legal national cannabis market – would override state and territory laws criminalising marijuana.
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