Chapter 3: Single Convention on Narcotic Drugs

Australia is a party to three United Nations conventions relating to narcotic drugs - the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol (the Single Convention),[53] the Convention on Psychotropic Substances 1971[54] and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.[55]

The ND Act declares that its object is 'to give effect to certain of Australia's obligations under the Single Convention on Narcotic Drugs, 1961, as in force from time to time'.[56] The Single Convention is, accordingly, directly relevant to this Review.

Implementation of Australia's obligations under the Single Convention provides the constitutional basis for the enactment of the ND Act by the Australian Parliament.[57] This means that it is not open to the Commonwealth - as suggested in some submissions and consultations - to work from a different standpoint than embodied in the Single Convention regarding the classification of cannabis as a narcotic drug that poses social and health risks.

This chapter briefly outlines the terms of the Single Convention and recommendations that are presently under consideration to reschedule the classification of cannabis in the Convention.

The Single Convention applies generally to narcotic drugs including cannabis. The preamble states the key concerns that underpin the provisions of the Convention. Among them:

... the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and … adequate provision must be made to ensure the availability of narcotic drugs for such purposes

... addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind

... effective measures against abuse of narcotic drugs require coordinated and universal action

... [the parties to the Convention desire to conclude] a generally acceptable international convention … on narcotic drugs, limiting such drugs to medical and scientific use …'

The operation of the Single Convention is overseen by the INCB.

An important structural feature of the Single Convention is that it lists the narcotic drugs to which it applies in four Schedules to the Convention. Different obligations apply to the drugs in each Schedule. Cannabis is listed in Schedules I and IV, under the following descriptions:

• Schedule I: 'CANNABIS and CANNABIS RESIN and EXTRACTS and TINCTURES of cannabis'.
• Schedule IV: 'CANNABIS and CANNABIS RESIN'.

The drugs in all four Schedules are subject to the controls listed below, with additional obligations applying to opium and cannabis and cannabis resin,[58] and exceptions applying to drugs listed in Schedule II and preparations listed in Schedule III. Higher standards of control are required for drugs listed in Schedule IV.[59]

The overriding obligation of parties under the Single Convention is to carefully control, supervise and report on cultivation, production and manufacture of narcotic drugs. A party that permits the cultivation of cannabis plants is required to:

• establish a single government agency to exercise the functions of granting licences for cannabis cultivation, designating where cultivation is permitted, purchasing and taking physical possession of licensed crops, and controlling import, export and wholesale trading of cannabis stocks[60]
• adopt necessary measures to prevent misuse of and illicit traffic in leaves of the cannabis plant[61]
• licence and control the manufacture of narcotic drugs[62]
• prevent the accumulation of narcotic drugs by licensed manufacturers and authorised persons, in excess of the quantities required for the normal conduct of business[63]
• provide an annual report to the INCB on the quantities of cannabis to be consumed for medical or scientific purposes, areas of cultivation and annual stocks; and provide statistical returns as required by the Board regarding production, consumption, import, export and stocks of cannabis.[64]

Schedule IV drugs are those regarded as posing the greatest health, welfare and social dangers (for example, heroin is another Schedule IV drug). The higher standards of control applying to Schedule IV drugs are as follows:

• a Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included
• a Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party.

The Single Convention draws two important distinctions, between:

• narcotic drugs to which the Convention applies, and non-narcotic substances that may fall outside the Convention
• the use of narcotic drugs for medical and scientific purposes, which is permitted by the Convention in accordance with the controls that it outlines, and the use of narcotic drugs for other purposes that are not permitted.

Those distinctions are taken up in Articles 2.9, 4.1(c) and 28.2 of the Convention:

2.9. Parties are not required to apply the provisions of this Convention to drugs which are commonly used in industry for other than medical or scientific purposes, provided that:

(a) They ensure by appropriate methods of denaturing or by other means that the drugs so used are not liable to be abused or have ill effects … and that the harmful substances cannot in practice be recovered; and

(b) They include in the statistical information … furnished by them the amount of each drug so used.

4.1 The Parties shall take such legislative and administrative measures as may be necessary:

(a) To give effect to and carry out the provisions of this Convention within their own territories;

(b) To cooperate with other States in the execution of the provisions of this Convention; and

(c) Subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.

28.2 This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.

A review of cannabis scheduling under the Single Convention was undertaken in 2018 by the Expert Committee on Drug Dependence of the World Health Organisation (WHO) (the Committee) at its 40th and 41st meetings. The review was prompted in part by recognition of an increased use of cannabis for medical purposes and the emergence of new cannabis-related pharmaceutical preparations for therapeutic use.[65]

Based on the Committee's work, the WHO has put forward recommendations to the United Nations Commission on Drugs to amend the listing of items in the Schedules of the Single Convention. These are only at proposal stage and are yet to be supported by the INCB.

The recommendations (based on the Committee's findings) can be summarised as follows:[66]

• Cannabidiol: The Committee accepted that there are no case reports of abuse or dependence relating to the use of pure CBD, or public health problems associated with CBD. Research is underway on the therapeutic applications of CBD.

  CBD is not separately listed in the Single Convention, but if prepared as an extract or tincture of cannabis it currently falls within the listing of cannabis in Schedule I. The WHO made separate recommendations that preparations considered to be pure CBD should not be scheduled in the Single Convention; and that a footnote be added to the entry for cannabis and cannabis resin in Schedule I to read: 'Preparations containing predominantly cannabidiol and not more than 0.2 percent of delta-9-tetrahydrocannabinol are not under international control'.

• Cannabis and cannabis resin: The Committee accepted that cannabis with a high concentration of THC can cause adverse health effects (particularly for children) and can impair motor control and cognitive function and be a drug of physical dependence. Those adverse effects stem mostly from acute or chronic use. The Committee also recognised the growing interest and research into the medical applications of cannabis, and that medical use was permitted in a growing number of countries.

  The WHO agreed that cannabis and cannabis resin should continue to be listed in Schedule I of the Single Convention, noting it is liable to abuse and to produce ill-effects, and is the most widely illicitly produced drug worldwide. However, the proposal is that cannabis and cannabis resin not be listed in Schedule IV as the ill-effects are not similar to those of other Schedule IV listed drugs, which do not have compensating therapeutic benefits.

  The Committee also made the following observation about hemp:

  Low potency (0.2-0.3% THC) cannabis plants (hemp) are cultivated to produce paper, textiles, rope or twine, and construction materials based on fibre from stalks. Grain from industrial hemp is used in food products, cosmetics, plastics and fuels. Cannabis plants grown for these purposes are excluded from control under the 1961 Convention^[67]

• Extracts and tinctures of cannabis: The WHO recommended that 'extracts and tinctures of cannabis' be deleted from the listing of cannabis in Schedule I.

  The Committee noted that an extract or tincture may contain different quantities of both THC and CBD. An example is Sativex an oral spray that is registered in the ARTG. While the abuse potential and public health risks of THC and CBD are separately known from other studies, there is limited research on extracts and tinctures that contain mixed substances.

• Other THC substances: The WHO recommended that THC/dronabinol and other tetrahydrocannabinols be moved from Schedule II of the Convention on Psychotropic Substances 1971 to Schedule I of the Single Convention and listed with other cannabis substances.
• Pharmaceutical preparations produced by chemical analysis or from cannabis that contain one or more other ingredients such that the THC cannot be readily recovered or in a yield that would be a risk to public health: The WHO recommended that this item be added to Schedule III, which lists preparations.

The United Nations Commission on Narcotic Drugs noted the recommendations at its 62nd regular session in March 2019. A formal response was postponed to a later meeting to allow the Commission further time to consider and whether to adopt the recommendations. This could occur at a reconvened meeting of the 62nd session in December 2019, or at the 63rd regular session in March 2020.

A few of the submissions to this Review pointed to these developments and the possibility of cannabis substances in the Single Convention being rescheduled - or 'down-scheduled' as it was sometimes described. The view was expressed that the adoption of the recommendations would represent a marked shift in the international attitude to the regulation of cannabis and related substances.

On the other hand, the TGA observed in a statement in December 2017 following a WHO pre-assessment report that Australian practice already mirrored the rescheduling proposal in relation to CBD.[68] Specifically, the TGA had re-classified CBD in the Poisons Standard in July 2015 from being a Schedule 9 'prohibited substance' to being a Schedule 4 'prescription medicine'. This was based on a recommendation in 2014 from the Advisory Council on Medicines Scheduling.

The department is closely monitoring the international developments and participating in the meetings of the relevant international bodies.

• [53] Single Convention on Narcotic Drugs 1961, opened for signature 30 March 1961, 520 UNTS 204 (entered into force 13 December 1964), as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs 1961.
• [54] Convention on Psychotropic Substances 1971, opened for signature 21 February 1971, 1019 UNTS 175 (entered into force 16 August 1976).
• [55] United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, opened for signature 20 December 1988, 2138 UNTS 214 (entered into force 11 November 1990).
• [56] ND Act, s 2A.
• [57] Commonwealth Constitution, s 51(xxix) ('external affairs').
• [58] Eg, Single Convention, Articles 23 and 28.
• [59] Single Convention, Article 2.5.
• [60] Single Convention, Articles 23 and 28.
• [61] Single Convention, Article 28(3).
• [62] Single Convention, Article 29.
• [63] Single Convention, Articles 21, 29.3, 30.2(a).
• [64] Single Convention, Articles 19, 20.
• [65] World Health Organisation Expert Committee on Drug Dependence, Fortieth Report (2018), WHO Technical Report Series, No 1013, at p 1.
• [66] The following summary is taken principally from the Fortieth Report, supplemented by a letter conveying the recommendations from the Director-General of the World Health Organisation to the Secretary-General of the United Nations, dated 24 January 2019.
• [67] Fortieth Report, p 22.
• [68] Therapeutic Goods Administration, 'TGA recognised WHO findings on cannabidiol three years ago' (media statement, 15 December 2017).