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Chapter 7. Conclusion

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This paper has addressed the legislative options available for
cannabis in Australia, and has argued that choosing from among
these options requires a process of policy evaluation.
Accordingly, the paper first considered the policy frameworks
within which decision-making occurs, emphasising the necessity
for clarity in the goals that society seeks to attain through
legislating in this area.

The paper places contemporary Australian cannabis legislation
within its broader context: historical and international. Despite
the work of numerous Royal Commissions and other official
inquiries, much of Australia’s legislation concerning cannabis
reflects the dynamics of earlier times, when Australia tended to
mimic other nations‘ policies without taking sufficient account
of local circumstances. Our framework of legislative prohibition
was put in place at a time when there was virtually no cannabis
use in Australia. In the 1990s, when over four million
Australians report having used the drug and nearly half of them
report having done so during the last year, most jurisdictions
maintain total prohibition as their legislative stance, even
though only a tiny proportion of the offenders against their
legislation will ever be prosecuted.

We have reviewed the range of legislative options available,
classifying them as: total prohibition; prohibition combined with
a civil penalty for personal use, etc; partial prohibition
whereby personal use, etc., is not an offence, but trafficking
and large-scale growing of cannabis remains prohibited; the legal
availability of cannabis under various forms of regulation; and,
finally, the option of unregulated, free availability. Each of
these options is reviewed in terms of its rationale, experiences
with it to date and its impacts.

The related topics of the diversion from the criminal justice
system of people who come to the attention of the police for
cannabis offences, and the compulsory treatment of cannabis
users, have also been discussed. Experience to date suggests that
well-resourced and managed diversionary programs can be
effective, and desirable, alternatives to imprisonment for some
offenders. Very few cannabis users will need treatment, as
conceived of through a medical model, simply because of their
cannabis use. Many users can benefit, however, from a helping
intervention, the success of which may be potentiated by the
crisis of a ‚bust‘ for cannabis use or related offences.

Cannabis is used mainly as a recreational drug and this
pattern of use has been the focus of this paper. For
completeness, we have included in the appendixes information on
the medical and industrial/agricultural uses of the cannabis
plant and its by-products. In doing so, we remind readers that,
in drug policies, we are not faced with ‚all-or-nothing‘ choices.
Within the range of available policy options lies the possibility
of prohibiting the recreational use of cannabis while permitting
its use for other purposes. (This occurs, of course, with
opiates: the opium poppy is grown in Tasmania to provide raw
material for the manufacture of pharmaceutical products.)

Australia’s National Drug Strategy provides a policy framework
within which new legislative approaches may be developed. Both
existing and new approaches have the possibility of both
enhancing and detracting from the achievement of the mission of
the National Drug Strategy, that of minimising the harmful
effects of drugs and drug use in Australian society. Our review
of the policy options, set out in Chapter
4
, demonstrates this.

No single ‚best option‘ for cannabis legislation exists. What
is most appropriate will depend upon what goals both policy
makers and the community are seeking to achieve. It is not the
role of researchers to dictate policy goals; rather we have drawn
attention to their importance, outlined an approach to evaluating
them and described the likely outcomes, in terms of policy goals,
of the five broad categories of legislative options which are
available now.

Our review suggests that two of the five legislative options
discussed in Chapter
4
are inappropriate in contemporary Australian circumstances.
They are the options which we have characterised as ‚total
prohibition‘ and ‚free availability‘. The arguments for rejecting
these options will not be repeated here as they are detailed in Chapter
4
.

We point out, however, that the cultivation, possession and
supply of cannabis remain an offence in all Australian States and
Territories (and using it is an offence in most), even though
cannabis use is commonplace and little evidence exists that
cannabis itself causes significant harm when used in small
quantities. Australian society experiences more harm, we
conclude, from maintaining the prohibition policy than it
experiences from the use of the drug.

Widespread interest exists in the Dutch approach to drug
policies. We have categorised them, in this paper, under the
heading of total prohibition, as that is the Dutch legislative
position. However, as detailed above, the application of the
principle that it is, in their terms, ‚inexpedient‘ to prosecute
people for minor drug offences (including selling cannabis in
certain coffee shops) means that Dutch policy and practice (as
contrasted to legislation) is closer to the regulatory option
than the total prohibition option. The regulatory option is one
of the approaches which we suggest is more appropriate to
Australian circumstances than is total prohibition.

It could be argued that the Dutch approach is a product of a
different culture and system of administration of criminal
justice. If the Australian States and Territories resolve not to
arrest and proceed against people using, possessing or supplying
cannabis, by far the best approach is for this policy to be
implemented through legislation, rather than through an
administrative decision not to prosecute cannabis offenders. This
is because the Australian system of legal justice is based upon
the principle of legal clarity and consistency in the
implementation of the law.

Nevertheless, the reality is that, for a variety of reasons,
Australian governments may well prefer to implement the Dutch
approach. A number of precedents exist whereby, especially in
areas of moral contention, certain illegal activities, as a
matter of policy, are excluded from the purview of the criminal
justice authorities. In the Australian Capital Territory, for
example, we understand that the Director of Public Prosecutions
publicly announced that he would not conduct any prosecutions in
the area of prostitution. Abortion and certain types of gambling
(e.g. playing two-up on ANZAC Day) are or were similarly dealt
with. Police general orders frequently remind officers of the
desirability of exercising their discretion not to arrest or
summons a person found committing only a minor offence. Warnings,
formal cautions and referral to other agencies are encouraged
despite the existence of legislation prohibiting the behaviour
involved.

We suggest, then, that if governments agree that total
prohibition is not the most desirable approach, but are unwilling
or unable to legislate to enable a more preferable option to be
implemented, then the Dutch approach is a desirable alternative.
It would entail the government, the State/Territory Director of
Public Prosecutions, or another appropriate authority declaring
that, as from a certain date, no person would be prosecuted
before the courts for specified (minor) cannabis offences. We
suggest that this is a legitimate, but not optimal, pragmatic
option currently available to Australian governments.

We also reject the legislative option found at the opposite
end of the continuum from total prohibition, the totally
unregulated, free availability of cannabis. Our society is one
which accepts that governments and others have both the right and
the responsibility to intervene in diverse ways to protect people
from harm and to advance the common good. It would be
unreasonable, we suggest, to argue that cannabis should be
available in an uncontrolled manner: issues of quality control,
protection of the young, road safety, etc., demand at least some
degree of control over the drug’s availability.

We conclude, then, that cannabis law reform is required in
this country. Numerous options for policy, legislation and
implementation processes exist within the broad categories of
prohibition with civil penalties, partial prohibition and
relatively free but regulated availability. We believe, on the
basis of the available evidence, that widely acceptable social
goals, well attuned to the needs of contemporary Australian
society, will be attained through the adoption and implementation
of policies which lie within these options.


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