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Khatman

Legality of Catha edulis in Western Australia

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Hi guys,

I asked a lawyer friend of mine to clarify the legal status of Khat in Western Australia. Very simply – according to the Misuse of Drugs Act, Khat itself is not illegal, but Cathinone is a prohibited substance and according to the law if Cathinone can be derived from a plant then the plant is prohibited. I don't know what implications this has in regards to growing, selling or using Khat.

The chain of legislation is:

• Section 1 Misuse of Drugs Act says the Act applies to “prohibited drugs” and “prohibited plants.”

• Section 4 Misuse of Drugs Act says prohibited drugs are “drugs of addiction” and “specified drugs” and the drugs listed in Schedule 1.

• Section 1 Misuse of Drugs Act says “drugs of addiction” is defined in section 5 of the Poisons Act

• Section 5 Poisons Act says “drugs of addiction” are listed in Schedule 8 and 9 of the Poisons Act.

• Schedule 8 and 9 of the Poisons Act list a number of substances. They also say that they also include everything listed in the SUSDP (Standard for the Uniform Scheduling of Drugs and Poisons). It is prepared by the National Drugs and Poisons Schedules Committee. You can’t get this online, you have to buy it.

• "Cathinone" is in Schedule 9 of the SUSDP.

• If it is accepted that cathinone is a prohibited drug then the plant it comes from is a “prohibited plant.” Prohibited plant is defined in section 5 Poisons Act as including “any plant from which a drug of addiction may be obtained, derived or manufactured.” So if you can obtain/derive/manufacture cahthinone from a plant, and cathinone is a prohibited drug, the plant it comes from is a prohibited plant.

The key to it all is the SUSDP, which you can’t get online, the committee that writes it charges $85 a copy and it gets updated several times a year so to find out if something is/was prohibited at a particular time you need the list as it was at that time.

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Nice work. Can we find out exactly what 'prohibited plant' means in terms of possession, cultivation, harvest - is it illegal to have a khat plant (or an Acacia) growing in your garden? Or only if you intend to use it?

• If it is accepted that cathinone is a prohibited drug then the plant it comes from is a “prohibited plant.” Prohibited plant is defined in section 5 Poisons Act as including “any plant from which a drug of addiction may be obtained, derived or manufactured.” So if you can obtain/derive/manufacture cahthinone from a plant, and cathinone is a prohibited drug, the plant it comes from is a prohibited plant.

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creach - prohibited plants are specified in the schedule. in most states this is the famous 5. In SA Catha is included. The law in WA applicable to catha would only be via mprohibited drugs (ie the cathinone content), not via prohibited plants.

Most states specify that a prohibited drug MUST be a preparation. The TGA defines this as anything starting from the moment the material is picked/harvested. As far as the TGA is concerned something only becomes a drug after human intervention.

Most states also clearly define the law applying to preparations only. The health department in each state may interpret this at different levels (an overseas example of a different definition is that in the UK preparation starts with any step AFTER harvesting).

It was pointed out to me some months/years ago by a member here that in WA the law is different to most states. However, because there have been soooooo many changes to drug law in WA and many other states as they harmonise with the federal TGA schedules and with the federal criminal code, I could not say just what the situation is at this point without spending a night reading the acts.

As a barrister friend of mine explained to me, the law is only as good as it is applied and tested. There are many laws that get tested in court and do not stand up. Like the ephedra law that Ray was charged under some years ago. So, it is important to not just look at the letter of the law, but also how it has been interpreted by judges and how it is applied in court.

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Yes, we have covered all this before. What I was wondering is does Khatman's info change or disagree with what we already thought?

The law in WA applicable to catha would only be via mprohibited drugs (ie the cathinone content), not via prohibited plants.

However Khatman shows that any plant contaning a prohibited drug is a prohibited plant. Therefore khat, acacia, lophophora, etc are prohibited plants. What I was asking is - what does 'prohibited' actually mean in terms of what you are and aren't allowed to do with such plants?

just read your post a bit more carefully and found

Most states specify that a prohibited drug MUST be a preparation

So that means the drug isn't prohibited while it's in the unharvested plant (making the unharvested plant legal), but then when you harvest it the drug becomes prohibited and the harvested plant material does too... ?

Is this how it works?

Edited by creach

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Creach said "Nice work." Thanks, although it wasn't me who did it.

I haven't visited Shaman Australis recently, but I thought you guys might find this information useful.

Creach – I think you’re correct when you say that a literal reading of the law says that any plant containing a prohibited drug is a prohibited plant, end of story. That is exactly what my lawyer friend said. However last time I checked the net you could get a licence to import Khat into Australia. So the law would appear to be contradictory. So as you say Torsten - the law is only as good as it is applied and tested. No trials involving Khat use/supply have happened yet.

I get the impression that it comes down to personal intent. If you cultivate Khat as an ornamental, botanical curiosity or even for personal use, your will probably be left alone. Try selling fresh cut bunches and then you will raise alarm bells.

My final though – why do ‘they’ have to make every thing fun illegal!?!

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The reason why I am asking these questions is that for a while now spaced has been telling me that in WA all plants containing prohibited drugs are prohibited, even before harvesting. Therefore it is illegal to grow them. This conflicts with Torsten's view and I am trying to sort out the complexities of this.

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The reason why I am asking these questions is that for a while now spaced has been telling me that in WA all plants containing prohibited drugs are prohibited, even before harvesting. Therefore it is illegal to grow them. This conflicts with Torsten's view and I am trying to sort out the complexities of this.

crach, you are messing up definitions. Just becase a plant becomes illegal due to it's prohibited drug content doesn't make it a "prohibited plant". It is still only a prohibited drug, even though it is a live plant.

ie, theoretically if you get busted for 2 khat plants you will be charged for possession of xxx grams of a "prohibited drug" rather than for possessing 2 "prohibited plants".

or a better contrast,

1) if you get busted for 2 pot plants and 200g of pot then you will be charged with possession of 2 prohibited plants and 200g of a prohibited drug.

2) if you get busted for 2 catha plants and 200g of khat then you will be charged with possession of [200g + whatever two plants weigh] grams of a prohibited drug.

similarly, if you get busted for 50 pot seedlings you go to jail, but if you get busted for 50 khat seedlings then you get charged with 100g (depending on size) of prohibited drug (or maybe even only the actual drug content of the material).

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crach, you are messing up definitions. Just becase a plant becomes illegal due to it's prohibited drug content doesn't make it a "prohibited plant". It is still only a prohibited drug, even though it is a live plant.

Ok, I understand the point you are making and your example, however the text of the legislation that Khatman has quoted does say 'prohibited plant'.

Prohibited plant is defined in section 5 Poisons Act as including “any plant from which a drug of addiction may be obtained, derived or manufactured.”

But apart from that, I'm still a bit uncertain - is it legal or illegal to grow khat, and other plants containing prohibited drugs, in WA?

Edited by creach

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Ok, I understand the point you are making and your example, however the text of the legislation that Khatman has quoted does say 'prohibited plant'.

I think you will find in the application of the law that "prohibited plant" will always ONLY apply to the specifically scheduled plants.

The wider definition in the act merely allows for a more efficient way of adding plants to the schedule if required.

But apart from that, I'm still a bit uncertain - is it legal or illegal to grow khat, and other plants containing prohibited drugs, in WA?

There are senior police quoted in print media as saying that khat plants are not illegal in WA. Even if you were charged I think this would form an excellent defense.

However, I agree with spaced's interpretation of the WA law (at least snapshot 12-18 months ago) that all plants that contain scheduled drugs are TECHNICALLY illegal in WA.

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However, I agree with spaced's interpretation of the WA law (at least snapshot 12-18 months ago) that all plants that contain scheduled drugs are TECHNICALLY illegal in WA.

There's a lot of people breaking the law in WA.... :rolleyes:

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There are sum things I would prefere to stay ignorant to. I doubt a W.A. coppa would be able to even I'D khat seedlings or even a sallyd plant for that matter.

I'm a trained horticulturalist and I couldn't even say for sure. Both look like a million other garden plant around. MJ and poppies are the only ones easily identifiable, IMO.

ANd if every plant containing a scheduled substance is illegal. All farmers growing phalaris, all shires allowing Acacia's, Phragmites, Phalaris, Camphor, etc, etc................... are breaking the law. Ascot shire for growing Khat in public places. Every nursery selling acacia'a. Completely unenforcable law even if it is technically written that way. Australia and every contry except maybe the arctics are full of naturally occuring prohibited sustances, even if only in minute quantities.

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naja, sadly the dmt is everywhere defence does not hold up in court. just because 1000 nurseries sell dmt containing plants does not mean you have to be let off.

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naja, sadly the dmt is everywhere defence does not hold up in court. just because 1000 nurseries sell dmt containing plants does not mean you have to be let off.

No, but it certainly provides good political reason to change the laws.

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As I've just found out, Photinia plants bear a striking resemblance to Catha and could easily be mistaken for one another. Photinia is certainly legal to possess....

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