Khat

The University of Queensland TC Beirne School of Law has released a 78 page report [PDF] on Australian law regarding Khat (a stimulant aka qat, jaad, kaad, herari, tohai, tschat, chat, marduuf, robta, murungu, zurba, African salad, flower of paradise and Abyssinian tea).

Law Enforcement and Khat was funded by the National Drug Law Enforcement Research Fund. It reflects concerns regarding community awareness and regulatory clarity among users and regulators across Australia, in particular use by people from Somalia. It drew on input from 19 focus groups of 129 Somali and Ethiopian people in Sydney, Brisbane, Melbourne and Perth, complemented by interviews with police in each state.

The report comments that -

Khat use is understood to have originated in Ethiopia, but it is now also widely chewed in other areas predominantly around the Red Sea, especially Somalia, Djibouti and Yemen. The legality of khat, even in countries where it has been chewed for generations, varies widely and is often the subject of fierce political debate. As people from countries where khat is commonly used have migrated throughout the world, the diaspora has brought with it the practice of chewing khat. This migration has required many countries outside the Red Sea area to address the question of whether khat should be regulated, and if so, how. In Australia, particularly as the East African community continues to grow, khat is becoming more commonly used. ... Although a great deal of the khat consumed in Australia is imported, in some states khat is being grown for personal use or for sale in other states and territories. 

Some have argued that the use of khat is an emerging concern because of its effects on health and wellbeing, and that the drug should be monitored. ... The law currently varies markedly among Australian states and territories. While this is a concern in relation to regulating many drugs in Australia, particular issues are associated with regulating khat. For example, given that khat is used primarily by immigrants who usually do not speak English as their first language, the need for clear law is particularly important.

The recommendations are that governments should -

1 Clarify state regulation and importation law

Khat is regulated in Australia through a complex regime of overlapping and differing Commonwealth, state and territory laws. In some states possession of khat is strictly prohibited and carries heavy penalties, whereas in others possession of khat appears to be legal (at least for personal use). Many focus group participants and police expressed uncertainty about the law in Australian states relating to khat. The law in relation to khat should be made as clear as possible in each state, especially given that many khat users speak English as a second language. The interaction between Commonwealth importation laws and state laws should be clarified and communicated to potential users.

2 Educate police about khat

In general police require more information about the law relating to khat, cultural and spiritual issues associated with its use, and the possible health effects associated with khat use.

3 Educate the community about the law and the health effects of khat

Focus group participants generally claimed that chewing khat is harmless or indeed positive for many health conditions, including diabetes, stress and heart disease. Most users were unaware of the physical and psychological harms that have been associated with chewing khat. Health professionals have a role in educating users about harms associated with the drug and promoting its responsible use (where use is legal) in order to minimise negative health effects for the individual and for the community. Fact sheets should be developed in conjunction with community consultation to distribute in relevant communities.

4 Conduct further research on health and the need for human studies

Only limited large-scale human population research involving khat exists. Until such studies are carried out many of the claims about the relationship between khat and negative health outcomes will remain unverified.

5 Conduct further research on how khat affects driving

Many focus group participants believed it was safe to drive under the influence of khat. In fact, many thought they were better drivers when chewing khat. By contrast, some focus group participants pointed to reduced concentration and speeding while under the influence of khat. A number of police interviewees were concerned about the possible dangers of driving under its influence. Education is needed to ensure that users understand the possible risks associated with driving while chewing khat. More research is required to explore these issues. A particularly concerning trend is use by immigrant taxi drivers to stay awake on long shifts.

In discussing the Australian legal regime the report comments that

Regulating khat in Australia is unnecessarily complex and potentially a source of much confusion for users, police and the courts. The existence of both a state and federal system of regulation increases this potential for confusion, as does the existence of food standards legislation in each state and territory, which may also regulate the sale of khat. Furthermore, jurisdictions have taken a variety of approaches to regulating the drug, so regulation is inconsistent throughout Australia. While these issues are common concerns in relation to drug regulation, the high level of mobility of Somali people in Australia and low levels of English language proficiency create particular concern in the context of khat regulation. In some jurisdictions, legislators have chosen to regulate one or both of the key chemical constituents of khat - cathinone and cathine - in addition to or instead of regulating the khat plant itself. This in turn has implications for the evidentiary burdens placed on prosecuting authorities in various states.

It notes that –

Importation of khat into Australia is controlled through Commonwealth legislation. The Customs (Prohibited Imports) Regulations 1956 (Cth) lists the substances cathinone and cathine in Schedule 4 as drugs. As such they are subject to Regulation 5 of the Customs (Prohibited Imports) Regulations 1956 (Cth) (specifically sub-regs 5[20][a] to [d]). The definition of ‘drug’ in Regulation 5 includes a substance, or thing containing a substance, included in the schedule. Therefore, while the khat plant is not specifically listed as a drug, it is illegal to import both fresh and dried khat into Australia without a licence because it is assumed to contain the substances cathinone and cathine. If individuals import khat without a licence they face a maximum penalty of $110,000. To bring a charge under this provision, presumably the prosecution would need to have the khat forensically analysed and obtain evidence that it did in fact contain either cathinone or cathine or, alternatively, bring a charge for attempted importation. A scheme has been in place since 1997 to grant licences allowing individuals to import khat for personal use. This is currently administered by the Office of Chemical Safety & Environmental Health (OCSEH). However, before a licence to import khat is granted, a person must first obtain a permit from the Australian Quarantine & Inspection Service (AQIS), otherwise called an ‘AQIS Import Permit’, as khat is a plant material. The application must include details of the exporter and importer. According to AQIS, only khat leaf tips are allowed to be imported and therefore any plants that are capable of being propagated are not permitted. Pursuant to a licence there are no restrictions on whether fresh or dried khat can be imported; the upper limit of 5 kg for importation remains the same.  

Once an AQIS Import Permit is obtained, a person can then apply for a khat import licence from the OCSEH. Individuals can apply for a one-off licence of up to 5 kg of khat or, alternatively, for a yearly licence allowing importation of 5 kg a month for personal use. While the application form states that it is for an ‘Application for a licence/Permit to import khat (personal use only)’, no sections on the form require applicants to declare that the khat imported will be consumed by the applicant only and not sold or provided to other persons. The 5 kg importation for personal use amount is quite high; especially considering that most khat imported into Australia is dried. To import fresh khat the importer engages a customs broker at a cost. The Customs (Prohibited Imports) Regulations 1956 (Cth) state that it is illegal to import a quantity of drug exceeding that specified by the ‘permission to import the drug’ regulation (the ‘permission’ is presumably the licence or permit granted by the OCSEH). Each week in 2009, there were on average 43 clearances of 5 kg shipments of khat through the Melbourne airport via the postal and air cargo streams, an average of 215 kg a week. The amount of khat being imported into Australia appears to be increasing. In 1997, 70 kg were imported, while in 2008, 2,130 kg were imported

 Concerns exist that individuals are importing khat and selling it to others who do not possess an import licence. This practice is no doubt illegal. A licence to import khat is granted subject to compliance with certain conditions and requirements. The licence holder must keep the drug in safe custody at all times and must not dispose of it unless he or she is satisfied that it will be used solely for medical or scientific purposes. Clearly, this latter requirement is likely to be irrelevant to most khat importers and was enacted with therapeutic medications in mind. According to the regulations, if a licence holder—that is, a person who has legally imported khat for personal use - fails to comply with any of these licence conditions, the licence may be suspended or revoked and the person may become liable to prosecution for the offence of failing to comply with a condition of a licence, and the penalties are as high as $11,000 (Customs Act 1901 (Cth) s 50[4]). Thus, a person who legally imports khat under a licence may be prosecuted if they are found to be selling or giving the khat to another person, as this constitutes a breach of the licence requirement to keep the khat in the licensee’s safe custody at all times.

The report goes on to comment that –

In Queensland, South Australia, Western Australia, the Northern Territory and the Australian Capital Territory khat, cathinone and cathine are regulated under criminal statutes. The problem that regulation in these states and territories poses is whether it is legal to possess khat in these jurisdictions if an individual possesses an import permit and licence under the Australian Government regime. OCSEH has advised that licences are currently only granted to individuals in Victoria, New South Wales and Tasmania. In 2008, 437 licences were issued in Victoria and 21 licences in New South Wales. Presumably, this is because it has been decided that granting licences to individuals in other states and territories will lead to individuals inevitably breaking the law in those jurisdictions once they are in possession of khat. … this avoids the conflict of laws described above, it also potentially encourages a market where individuals in Victoria, New South Wales and Tasmania become the distributors for users in other states and territories.

 The Australian states and territories regulate khat, cathinone and cathine in some way within criminal statutes, although Western Australia is the only jurisdiction where there has been criminal prosecution of khat possession. The regulatory regimes vary widely. In Queensland the khat plant and its active constituents are regulated under the Drugs Misuse Act 1986 (Qld); it is illegal to possess, supply or cultivate khat. The Northern Territory has a similar regime, with ‘khat leaf’ and ‘cathinone’ featuring in Schedule 2 of the Misuse of Drugs Act 1990 (NT) and possession, supply and cultivation of both ‘khat leaf’ and ‘cathinone’ accordingly being prohibited. A commercial quantity of khat leaf is 5 kg, attracting a maximum penalty of 14 years’ imprisonment. The South Australian regime regime is more complex: the plant is listed as a controlled plant under the Controlled Substances (General) Regulations 2000 (SA), and cathinone is listed as a controlled drug under Schedule 1. A person who possesses 5 kg of khat with the intention of selling any of it is guilty of an offence and faces a maximum penalty of $500,000 or life imprisonment. A presumption also operates so that a person in possession of a trafficable quantity (250 g or more) of khat is presumed, in the absence of proof to the contrary, to possess the relevant intention to sell the plants or any part of them. In the Australian Capital Territory the plant is a ‘controlled plant’, the sale of which is illegal under the Criminal Code 2002 (ACT). Commercial and trafficable quantities for the plant are not defined; therefore, the maximum penalty applicable for selling any quantity of the khat plant is 10 years’ imprisonment and/or 1,000 penalty units. Cultivation of khat is also illegal, with a maximum penalty of two years’ imprisonment and/or a fine of 200 penalty units.

The report comments that

Growing khat plants have more of a presence in Western Australia than in the rest of the country. Khat trees grow in numerous Perth backyards and many people report that trespassers harvest their trees for their leaves  … In Western Australia the regulatory response is complex. Section 4 of the Misuse of Drugs Act 1981 (WA) states that this act applies to prohibited drugs and plants. Prohibited plants to which that Act applies are those as defined in s 5 of the Poisons Act 1964 (WA). This section specifies that a prohibited plant means any plant from which a ‘drug of addiction’ may be obtained, derived or manufactured.

In New South Wales cathinone is regulated through inclusion in Schedule 1 to the Drug Misuse & Trafficking Act 1985 (NSW) but "there appears to be no mechanism through which the khat plant is regulated. This means it would be illegal for a person to extract cathinone from the khat plant, but if the cathinone remains within the plant it is not illegal.  In Tasmania, the active substances in khat, cathinone and cathine, are listed as controlled drugs under Part 2 of Schedule 1 of the Misuse of Drugs Act 2001. Possessing khat in Tasmania is effectively regulated under licence and enforced pursuant to Commonwealth law. Cathinone and cathine are regulated in Victoria through the Drugs, Poisons & Controlled Substances Act 1981 (Vic). Under s36B of that Act a person commits an offence if found in possession of a Schedule 4, Schedule 8 or Schedule 9 substance (ie cathinone) unless authorised under the Act or regulations.

The discussion concludes with the comment that

Yet another possible level of regulation of khat exists in Australia and that is through state and territory food standards legislation that gives effect to the national Food Standards Code.  The legislation varies slightly but all Acts contain a provision which requires individuals to comply with the Australia New Zealand Food Standards Code in relation to conducting a food business or to food intended for sale or food for sale. Failure to comply with the Food Standards Code results in a penalty of 500 penalty units. Pursuant to Schedule 1 of Standard 1.4.4 food standards code (Prohibited and Restricted Plants and Fungi), a plant or fungus, or a part or a derivative of a plant or fungus listed in Schedule 1, or any substance derived therefrom, must not be intentionally added to food or offered for sale as food. Catha edulis (khat) is listed in Schedule 1. The question remains, however, whether supplying khat to another person constitutes offering khat for sale as food. Food is defined consistently across the state and territory food acts as including ‘any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared)’ and may include plants. Therefore, it is possible that offering to sell another person khat for the purpose of consumption would fall under this definition of offering food for sale and thus, would be illegal under the food Acts. Enforcement and interpretation of the legislation is the responsibility of state and territory health departments. No known cases of this legislation are currently being enforced in relation to khat in any state or territory.