Australia’s Greens Party On Advice From Constitutional Academic Say There Is A Way To Adult Use Legalization Via “copyrights, patents of inventions and designs, and trademarks.” legislation

The Guardian reports this morning

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.

Part V – Powers of the Parliament

51. Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power12 to make laws for the peace, order, and good government of the Commonwealth with respect to:
  1. trade and commerce with other countries, and among the States;
  2. taxation; but so as not to discriminate between States or parts of States;
  3. bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;
  4. borrowing money on the public credit of the Commonwealth;
  5. postal, telegraphic, telephonic, and other like services;
  6. the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
  7. lighthouses, lightships, beacons and buoys;
  8. astronomical and meteorological observations;
  9. quarantine;
  10. fisheries in Australian waters beyond territorial limits;
  11. census and statistics;
  12. currency, coinage, and legal tender;
  13. banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;
  14. insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;
  15. weights and measures;
  16. bills of exchange and promissory notes;
  17. bankruptcy and insolvency;
  18. copyrights, patents of inventions and designs, and trade marks;
  19. naturalization and aliens;
  20. foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
  21. marriage;
  22. divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;
  23. invalid and old-age pensions;
  24. 13the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
  25. the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;
  26. the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;
  27. 14the people of any race for whom it is deemed necessary to make special laws;
  28. immigration and emigration;
  29. the influx of criminals;
  30. external affairs;
  31. the relations of the Commonwealth with the islands of the Pacific;
  32. the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;
  33. the control of railways with respect to transport for the naval and military purposes of the Commonwealth;
  34. the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;
  35. railway construction and extension in any State with the consent of that State;
  36. conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;
  37. matters in respect of which this Constitution makes provision until the Parliament otherwise provides;
  38. matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States,15 but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;
  39. the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;
  40. matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.


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.”

Professor Patrick Keyzer is a constitutional and human rights lawyer and Dean of the Thomas More Law School

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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