SalDiv scheduling unconstitutional

[Guest Thelema]

I'm shocked, what can I say?

But there is a way...

s116 of the Australian constitution provides that the commonwealth shall not ."...prohibit the free exercise of any religion...."

Religion? you might say? But let us look up the legal definition of religion:in

Church of new faith v Commissioner of pay-roll tax (1983) , mason ACJ said: for the purposes of law, religious belief is a"belief in a supernatural thing, being or principle".

Two principles were further elucidated on deciding whether or not a group [."no matter how small the number of adherents.." Murphy J] was a religion: 1) belief in a supernatural principle 2)acceptance of canons of conduct to substantiate that belief.

I think it is incontrovertable that in the eyes of the law, anyone calling himself a "shaman" subscribes to an individualistic view of supernature as prescribed and substantiated by the writings of historic shamans and neo-shamans. The body of "canon" here substantiaing the shamanic viewpoint is immense.

So, onto the next point, do we have a right to practise Salvia inhalation or ingestion as an article of religion? If so, then the recent ruling of the scheduling Authority is in fact anti-constitutive and void.

"So long as the practice of those beliefs affects only those practicing them, and does no actual harm to others, the law must not, from a human rights perspective, interfere with that practice." LAWS OF AUSTRALIA 21.4 p89 quoting On Liberty, JS Mill.

This actually has support in the church of new faith case.

If you are convinced, as am I, that we have a case here [especially given the peyote exceptions in the US as precedent]I think the next step should be to group together in a massive class action and find a competent lawyer to support us in the courts.

Noone's gonna steal my Sally!

[Guest Mesqualero]

But then couldnt we do that for just about any banned substance? Such as mushrooms?

[twee]

I read something along these lines about the peyote church in the US.

While I doubt such an argument will ever hold water in an Australian court, if any plant really did deserve to have its own religion, SD is a stand out candidate.

Who of us who are familiar with this plant haven't at some time referred to lady salvia?

[Adrian]

Thats a very good point.

Raise an argument that refers to constitutional rights.

I'm just hoping someone here studies pollitics/ law.

I have considered it myself only I would find it such a frustrating subject to learn.

But if we can have the power of pollitical change on our side we can re-affirm our fundemental rights.

So if there is nothing stated that indicates this law only applies to "major religion" this gives us some hope.

If one can study medicine, become a doctor and prescribe drugs for healing purposes, surely one can (has a right to) do the equivelent to prescribe sacrements.

[twee]

I have a business law sub-major but know stuff all about constitutional or criminal law.

But applying some legal "logic" my understanding would be that religious freedom is not relevant here.

Salvinorin is a poison now.

The term "religious freedom" implies that all religions should have equal rights under the law.

No individual or religion would be entitled to break the law. As would be the case with the "Church of the Salvianoughts" or any religion for that matter that encouraged its adherants to consume "poisons".

You get my drift.

Which does make sense. I'd hate to have to explain to my daughter the religious practices of the "Church of the dog rooters" or "The holy brotherhood of arsonists"

Does give me an idea on answering a particular question at the next census though.

[Guest Thelema]

Actually twee, that form of "logic" would not be an exception to an action.

The very point in question is whether the scheduling authority HAD the authority to schedule it, it being an established article of religious practice. It is not a defence to say "well now its a poison, so it cant be". That would be circular and missing the point...

And you don't want a law student on this one, trust me, I know. The real purpose of this post was to actually DO something, not just ponder. Is anyone interested in coordinating a class action here ? I suggest we all pitch in and commission Torstens lawyer to represent the shamans in the federal court.

[gomaos]

Salvia a poison?

So how much of the plant is toxic?

I think little is known about that.

I doubt anyone could eat enough salvia to die from it?

Any idiotic scheduling committee can come along and say "this is a poison" and "that is a poison" while in truth those plants may not be poisonous at all.

Let's keep our feet on the ground?

Salvia is not a poison, and we all know it.

We should stand up against the decision on these ground, because I don't think it would be possible to convince anyomne with the religion thing...

Or?

[Guest DragonFyre]

I remember reading something once when reading into all the cultivation sites around on SallieD and one site claimed that there was no known cases of poisoning or death due to the smoke/ingestion of salvia and that the harmful effects on the body would be less than those of marijuana seeing as how pot will affect (and is the only drug that does) every single cell in the human body...

if Sallie is so harmless then why classify it along with things like heroin? and why havent they made it a minor banned substance alongside with MJ?? Atleast that way you could still use your plants and know that if you get caught your not gonna be done too badly...

[gomaos]

Originally posted by DragonFyre:

and why havent they made it a minor banned substance alongside with MJ??

Minor banned substance?

Just 6 months ago I heard of a case here in brisbane where someone had an attic full of high-grade Marihuana...they gave him 15 years!

Also: A few years ago I heard of a case of a dutch diplomat who was executed in Singapore for possession of 2 grams of hash...I know that doesn't belong here, but it's just interesting isn't it...

[twee]

Thelema...

You're dreaming if you think showing that a particular plant has religious uses that legislation declaring it a poison is invalid.

If one wished to argue that the scheduling of Salvia Divinorum as class 9 is invalid based on the merits of the plant itself then well and good.

This has nothing to do with the plants uses in some here to unestablished religious rite.

As I see it we have 2 clear and distinct issues coming to light in this thread.

A: SD is wrongly scheduled

B: Religious freedom

One has nothing to do with the other.

[Guest DragonFyre]

gamoas, theres a difference between having an attic full and just having a few plants for personal use =) and were in australia not singapore

I just basically meant why cant you be charged being in possession of say 2 grams of sallie the same way you would with mj? you'd come out alot better than being tried with 2 grams of herion

[MrBumpy]

DragonFyre : the thing is though, we aen't exactly sure if the plant is illegal or if it is just salvorin A that is illegal.

If it is just salvorin A specifically, then having 2 grams of SD plant material since the amount of Salvorin A in 2 grams of plant material would be a lot less then 2 grams.

-bumpy

[Guest Thelema]

Twee, as regards to the two issues "coming to light" in this thread being completely independent, I have to disagree.

It will be noticed that I STARTED the thread by arguing that SalDiv IS wrongly scheduled BECAUSE of its religious use. That is how the thread started, by me asserting the dependence of the former on the latter.

What you are saying merely amounts to an assertion that the two issues, as I construe them, are not dependent. You give no legal support for this, you just declare it.

I, however, by citing various cases in support of the dependent relationship have shown the argument to be tenable in law.

To say "I am dreaming" : I hope if I ever get convicted then you are the prosecutor! Since what we are having is essentially a legal discussion about the legitimation of the scheduling, and since you have indicated that you have prior minor legal experience, now would be the appropriate time to find a precedent for what you are saying, in support of your contention that religious use is of no benifit here in voiding the scheduling.

I happen to have full access to a law library, and have conducuted the necc. research on this point, as you will have noted by my first post. If you want to seriously contribute to the legal aspects of the discussion, then I suggest you do so in an appropriate way, rather than spouting mere unsupported opinion.

If you dont want to contribute to the legal aspects of the discussion, then i suggest you act genuinely and do not pretend you are. Presumably if you have studied any law, you should know how representation of the law Through precedent and interpretation of legislation works.

I am disappointed that the only place I can think of to go to for help, people have frustrated the efforts I have made. It should be in all of your interests to support this action.

I am not raising this for a matter of discussion, I am TELLING you that there IS A BASIS FOR SUIT here. Either join me or don't, but don't pretend that my analysis of the law is faulty, because it isn't. And if you disagree with that analysis of law, then repudiate on a case or interpretation-basis.

CMON people! Does noone care?

[twee]

Thelema...

stop embarrassing yourself

And mebbe get your facts straight before giving me lectures.

I said I had a business law sub-major and didnt know anything about criminal or constitutional law.

I never made any claims what so ever about being a lawyer. I'm a CPA if you must know.

I also said that my opinion was based on applying legal "logic".

The basic principles you learn in Torts and legal methodology can be applied to most legal situations.

But please let me apologise for trying to take your original post seriously.

Good luck with your hair brained scheme to have the SD scheduling overturned on constitutional grounds as a violation of religious freedom.

[t st tantra]

as our society understands religionwe willhave to get together every week and have a salvia smoke-in.

[Torsten]

Originally posted by MrBumpy:

DragonFyre : the thing is though, we aen't exactly sure if the plant is illegal or if it is just salvorin A that is illegal.

Please people, this is not that complicated!!!

Both the plant material and salvinorinA are scheduled SEPARATELY!! There is no if or buts about this. The herbal material is illegal!!

As for how severe the penalties are, this we will have to wait for. I can't find them anywhere.

I am goingt o put up a page on this issue in the next few days and will post a URL on the forums. Please kee an eye out and don't spread wrong information.

[Guest Thelema]

Twee, your reading skills are abysmal.

I did not make any claim to you being a lawyer.

I admit that my scheme sounds harebrained, but that does not excuse your poor responses.

Legal "logic"?? While your replies certainly are opinionated, they do not seem to be logical. While they are about something to DO with the law, they are not LEGAL responses.

Do not apologise for taking my original post seriously. Such throwaway insults are mere wash for the fact that you can't back up an opinion to the contrary with sources, or any reason whatsoever.

[twee]

Thelema..

Take a chill pill and stop embaressing yourself.

[HyperSpaceCowboy]

it was my understanding that 'they' don't even know how salvia scientifically works like how it does... how can they prove it is poisoness?

and on that note, if it is true that they know not isnt this good grounds for religous use?

[This message has been edited by HyperSpaceCowboy (edited 13 March 2002).]

[blog]

It's on the poisons schedule, S9 with every other illegal drug. It doesnt mean it's a poison, Pharmacy and prescription medication is also a scheduled poison, S2,S3,S4,S8. Poisons are S5,S6 and S7

[This message has been edited by blog (edited 13 March 2002).]

[Zinai]

From my friend Mabo:

SLOW DOWN FOLKS... chill... for the times, they are a'changin...

I have known for over 25 years that the Commonwealth and the various states have been interfering with the free exercise of the religous beliefs of shamanic idealists.

UP UNTIL NOW I HAVE MANAGED TO KEEP MY MOUTH SHUT.

During that 25 years, I have considered this very issue at great length. These are the facts:

Section 116 of the Constitution of the Commonwealth of Australia reads:

"The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."

It has been established that the States are also prohibited by the Constitution from making any law prohibiting the free exercise of any religion.

This Constitutional provision was designed specifically to protect minority religious groups(presumably as the rights of mainstream Christian religions are so permanently and irrevocably enshrined in common law).

Constitutional law is extremely complicated.

It should be noted that all legislation is purported legislation only and will always be open to challenge in the High Court of Australia.

Acts of parliament can(and have)been declared to be invalid by the High Court of Australia.

I believe that a challenge to all state and federal legislation that interferes with the religious beliefs of shamanic idealists will be successful, but only if such a challenge contains the correct arguments, and only if it is done in the right political climate.

The time is not yet.

One poorly conducted challenge in the High Court could destroy this sacred constitutional right.

My advice: keep your mouths shut and Torsten, I suggest that this entire thread be removed, I will e-mail my telephone no to you shortly as I would like to discuss this further.

regards, Mabo

[Alchemist]

[This message has been edited by Alchemist (edited 30 April 2002).]