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Byron Shire
May 8, 2021

NSW government takes on the plant kingdom

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One of the more ‘abusable’ plant species, Lophophora williamsii, more commonly known as peyote.
One of the more ‘abusable’ plant species, Lophophora williamsii, more commonly known as peyote.

In its attempts to nail down the sale of any substance containing ‘psychoactive’ elements, the NSW government amended the Drug Misuse and Trafficking Act 1985 on Wednesday night last week. The legislation passed through the Upper House without a hitch, and only a few murmurs of dissent, despite the monumental vagueness of its wording.

According to the amending bill, ‘psychoactive substance means any substance… that, when consumed by a person, has the capacity to induce a psychoactive effect’.

This is handy to know, but my reading of the definitions contained in the 1985 Act failed to find any definition of the word ‘psychoactive’ itself. Most dictionaries agree that the adjective describes something ‘affecting the mind or behaviour’. Some lexicons add the word ‘significantly’. Under this definition such substances could include everything from heroin to chamomile tea.

The more troubling part of the proposed amendment is its vagueness in relation to the plant kingdom. Entheogenesis Australia (www.entheo.net/), in an unsuccessful attempt to head off the legislation, noted in a newsletter that the bill ‘will make it illegal to possess or sell any live plant that contains mescaline or a mescaline structural analogue’.

Problem phrase

‘The problem phrase is in the definitions under “substance”, where it says that “a substance includes any plant, fungus or natural organism”. The bill also affects all DMT-, harmaline-, ephedrine- and cathinone-containing plants.

‘For instance, more than half the cactus family contains mescaline compounds in trace amounts, but the law makes no distinction between trace amounts and usable drug amounts. It is likely that the NSW government was aiming at the handful of abusable species such as Trichocereus pachanoi and Lophophora williamsii and is probably unaware of what they are about to do.

Illegal cacti

‘This law will apply to some of the most popular collectible cactus species. Almost all cacti alkaloids are structural analogues of mescaline (as defined under NSW drug law), even if they are not psychoactive. Basically any cactus that contains phenylethylamines will become illegal regardless of the concentration and also regardless of whether the owner knew about it or what purpose it was grown for.’

The grief is not confined to the harmless cactus fancier, however. There are pitfalls for the writer as well in the loose wording. An ‘advertisement’, you will be interested to learn, means ‘(a) any words, whether written or spoken, or (b) any pictorial representation or design, or (c) any other representation by any means at all’. And so a person is guilty of an offence if he/she ‘publishes or displays in any manner, way, medium or form any advertisement: (a) knowing or being reckless as to whether the advertisement promotes, or apparently promotes, directly or indirectly, the consumption, supply or sale of a substance for its psychoactive effects, and (b) providing information on how or where the psychoactive substance may be acquired’. Does that mean that in my ‘advertising’ of this information I am now a candidate for a penalty of imprisonment for up to two years or a $2,000 fine? Will the CEO of Tim Tams be collared for pushing theobromine?

It would be nice to see a bit more rigour introduced into the drafting of important legislation. It is hard to believe that a legal team even looked at it.

Will the constabulary now be sent out to raid greenhouses and backyard gardens on the basis of these loose definitions through which you could drive a meth lab on wheels? After all, there are many things in our vegetable gardens – from the antioxidant carotenoids in spinach to the saponins in asparagus – which could be seen as ‘psychoactive’.

For those truly excited by documents, the amendment in all its glory can be read here: http://bit.ly/193KCW1.

Declaration of interest: I am a serial plant abuser. Why, only yesterday I was telling the silverbeet it had no hope of passing the HSC and starting a career in graphic design, and no, there’s no point in looking at me with that aggrieved expression.

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  1. Just another example of do-gooders making decisions ‘for our own good’ because a few may use or abuse a substance hardly known about.
    What a bunch of wankers!!! Paranoia begets paranoia.
    We are breeding idiots……..and protecting them…….let them go and we’ll be rid of them.
    Darwinism will sort it.
    Do-gooders…….mind your own business and let us get on with ours. Life is busy enough without idiots like you making many of us criminals because we want to actually do something with our leisure time instead of sticking our noses in other peoples’ business.

  2. This legislation appears to outlaw alcoholic beverages and nicotinous substances. So even advertising beer and fags becomes and indictable offence ?

  3. Yes, that’s a tricky piece of legislation.

    The Act defines “psychoactive effect” partly as the “stimulation or depression of the central nervous system … resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood…”

    This seems much too all-inclusive. Coffee significantly changes my mood.

    Although the Act does exclude food.

    But the Food Act 2003 includes as food “any substance … for human consumption”.

    And marajuana is a substance and people do consume it.

  4. you guys mustnt live in nsw the most troubling part of the bill is it makes wattles illigal im going to have to deforest my entire 100 achers:( somany animals live in it its going to be a ecological disaster but i cant risk cultivating 100 achers of a illigal plant. im amazed they were alowed to ban such a iconic genus that is so intergrall to our lready challenged environment
    there ignorance astounds me but nolonger suprises me (all icacia contain dmt analogs in some lvl)

  5. theres specific caviets excluding coffe nicotein and alcohole but absolutely nothing excluding wattles which acountor a significant amount of nsw’s flora note Recommendation 1:That the Attorney General introduce legislation to amend Schedule 1 of the Drug Misuse and Trafficking Act 1985 to remove the requirement for analogues of prescribed drugs to have ‘psychotropic properties’ dosnt even have to be psychotropic just needs to be a analog/in same genus dont be fooled into thinking this is just about ppl taking shooms this is much broader and definately pharma driven and completely insane and unworkable but that never stoped tem before, (i refer you to “the war on drugs” lol)

  6. psychoactive substances cure depression, and DMT is consciousness itself.
    harmala alkaloids when first isolated were called telepathine,
    so the nsw govt can go f*** itself.
    it sucks being educated huh.

  7. This is the straw that broke the camels back, making NSW officially a fascist state. Pensioners who enjoy growing rare cacti and and certain Australian Native plants can now be classified as criminals.


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