Ayahuasca and Freedom of Religion in Australia

Abstract

The legal framework that regulates ayahuasca in Australia has federal, state, and territory dimensions. This chapter will tease out the complex relationships that exist between various agencies and legislation across these jurisdictions to make plain the state of ayahuasca regulation in 2018. A brief review of unsanctioned ayahuasca use is provided, outlining the implications of imported, alternative, and local ingredients, as well as exploring the dynamics of their poorly understood and widely ignored legal status. Also included is an analysis of the failed 2017 submission to the Australian Therapeutic Goods Administration (TGA) made by the União do Vegetal (UDV), highlighting its impossibility for success, due to being improperly framed and targeted, as will an assessment of the constitutionally based challenge to the status quo. On the one hand, the Australian Constitution creates a prima facie freedom of religion, while on the other hand both the dimethyltryptamine (DMT) and harmine constituents of ayahuasca are scheduled substances. Certain aspects of the Constitution exacerbated the complexity of the status quo, namely, that its purpose was to federate six separate colonies (that later became the states) into one nation-state. The preservation of individual rights was not the specific focus of the Constitution, and Australia stands apart from all other modern liberal democracies in that there is no Bill of Rights that applies across the nation. This adds layers of complexity to a “freedom of religion”-based challenge to the status quo. This chapter will conclude by framing a pathway forward, moving from “us” and “them” into a pragmatic and epistemically sound paradigm in which the laws of Homo sapiens are aligned with the laws of nature, as currently we understand them.