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Legislative Options for Cannabis Use in Australia

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Executive summary

Chapter
1: Introduction

This paper is concerned with the legislative options available
for cannabis, and the impact of those options on the community at
large and on the law enforcement sector. It has been prepared by
the Australian Institute of Criminology at the request of the
National Task Force on Cannabis; the Task Force plans to use this
paper in developing its recommendations to the National Drug
Strategy Committee. This paper, along with other commissioned
Task Force papers, may in future be used to inform the
development of a national policy on cannabis.

Chapter
2: Policy goals

Given the importance which is assigned to setting clear goals
for any major social policy, it is surprising how infrequently
discussion of drug policy is preceded by a precise specification
of what the policy is intended to achieve. Too often, goals are
either global (e.g. to reduce drug use) or unattainable (e.g. to
eliminate drug use), and as such they allow for many
interpretations. Similarly, goals are often stated in such a way
that they could be achieved through a number of quite
contradictory strategies and at vastly differing costs.

This report starts from the proposition that it is important
to know what are the requirements for rational drug policy in
general, and what are the objectives of cannabis policy
specifically. In this context, it is important to address the
issue of drug policy, as well as drug legislation. The link
between policy, legislation and implementation is important and
must be factored into these considerations. The development of
policy and legislation relating to cannabis should take into
account the following issues:

  1. Arguments that apply to the most appropriate control
    regime for one drug need not “ and often do
    not“ apply to others.
  2. Drug policy should be crafted to take account of the
    different patterns and types of harms caused by specific
    drugs.
  3. The details of control regimes are crucial determinants
    of their outcomes. Such details should not be left
    undefined.
  4. Any analysis of control regimes should attempt to
    estimate their effects on both consumption levels and
    patterns of use.
  5. Control regimes should not be considered in isolation
    from the problems of implementation and enforcement.
  6. Arguments about the consequences of drug use should be
    separated from arguments about morals.
  7. Options should be evaluated on the basis of evidence of
    damage.
  8. Any policy should recognise the changing nature of the
    drug problem and be able to change with it. Additionally,
    all policies should be reviewed periodically to ensure
    that they are still relevant to current circumstances.
  9. Policy should be made in the light of the costs of
    control as well as the benefits.
  10. The goals of drug policy should be realistic.
  11. Discussion of policy options should include a
    specification of which harms they are intended to reduce.
  12. Discussion of cannabis policy (and drug policy generally)
    should recognise the existence of multiple and sometimes
    contradictory goals.
  13. Policies to discourage cannabis use should be shown to be
    effective or be changed.
  14. The harms caused by the control regimes themselves should
    not outweigh the harms prevented by them.

The application of these principles in a given situation
should lead to the development of explicit policy goals relating
to cannabis. It is likely that priorities will need to be
assigned between the available goals, as they are frequently
inconsistent. Nevertheless, the explicit specification of the
goals which policy and legislation are intended to achieve is
essential if they are to be properly articulated and evaluated.

3.
Cannabis in context: history, laws and international treaties

Cannabis has been used for many thousands of years. It has
been used for the production of material products such as
clothing and rope; for its medicinal properties; and for its
psychoactive properties. Cannabis was used medicinally in
Australia until the mid-1960s and is currently used in many parts
of the world, in the form of hemp, for the production of cordage,
clothing, etc.

Australian drug laws, like those of many other countries,
closely followed the development of international drug treaties.
The influence of the United States of America in the conception
and development of treaties and related international instruments
has been enormous. The 1925 Geneva Convention on Opium and Other
Drugs was the first such convention to cover cannabis. The
Convention required the parties to limit the availability of
cannabis to medical and scientific purposes only. This remains
the status of cannabis in the international community.

Numerous enquires into drug use and trafficking have been
conducted both in Australia and overseas. Australian committees
have generally been very cautious about recommending changes to
the legal status of drugs. Nevertheless, a number of high level
Australian committees of inquiry have recommended the
liberalisation of legislation relating to cannabis, or at least
that such liberalisation be carefully considered. The most recent
of these at the national level was the Parliamentary Joint
Committee on the National Crime Authority which reported in 1989,
and at the State/Territory level, the Australian Capital
Territory Legislative Assembly’s Select Committee on HIV, Illegal
Drugs and Prostitution, which reported in 1991.

In the main, cannabis was little known or used in Australia
until the 1960s. Nevertheless, the drugs legislation which was
introduced in most of the States and Territories towards the end
of the 1800s and early 1900s (primarily concerned with the
smoking of opium by Chinese people) provided a framework for the
prohibition of cannabis. The first Australian controls on
cannabis use were introduced in Victoria in 1928 legislation
which penalised the unauthorised use of Indian hemp and resin.
This was followed by corresponding legislation in the other
jurisdictions as the years passed. From the 1960s, however, the
Commonwealth has become increasingly involved in legislation
relating to cannabis (particularly with regard to its
importation). The penalties relating to cannabis cultivation,
possession and use were generally quite severe during the 1960s
and 1970s but have tended to lessen since then in most
jurisdictions, at least with regard to the minor offences of use
and possession of small quantities.

Perhaps the most significant recent legislative changes have
been the introduction in 1987 in South Australia and in 1992 in
the Australian Capital Territory of expiation notice schemes.
Under these schemes, a person found committing a minor offence
relating to cannabis is given what amounts to an
„on-the-spot“ notice. If the prescribed penalty is paid
within the prescribed time then no court appearance is required
and no conviction is entered. If the person receiving the
expiation notice fails to respond to it, however, normal court
processes follow.

People considering the legal status of drugs and the
possibility of legislative change need to be cognisant of
Australia’s international treaty obligations. Although some
difference of opinion exists with regard to the range of
legislative options for cannabis which are available to Australia
within the scope of the international treaties, it is clear that
the policy of total prohibition currently followed by most States
and Territories is only one of a number of options which are
available.

Chapter
4: Five legislative options for cannabis in Australia

Many legislative options are available for cannabis, and much
confusion exists in the terminology used to describe them. In our
view, the South Australian Royal Commission into the Non-Medical
Use of Drugs (the Sackville Commission) which reported in 1978
provided the most useful categorisation of these options. The
language used avoids the terms ‚decriminalisation‘ and
‚legalisation‘ as these expressions have quite different meanings
for different authorities. The five options discussed below
capture all the approaches which people have in mind when they
refer to ‚decriminalisation‘ and ‚legalisation‘, as well as other
options which these two words may or may not encompass. The
options are total prohibition (with and without an administrative
expediency principle), prohibition with civil penalties for minor
offences, partial prohibition, regulation and free availability.

Under the system of total prohibition the use, possession,
cultivation, importation, sale and distribution of any amount of
cannabis are treated as criminal offences. Total prohibition can
take a number of forms. In the United States, for example, the
eradication of all illicit drug use is a central aim of drug
policy and it is thought that total prohibition is the most
effective means of reaching this goal. Cannabis use is seen as
part of a larger drug problem and is dealt with as such. The
total prohibition policy, as implemented in the United States,
many other countries and most of the Australian States and
Territories, has clearly not achieved its intended goal of
substantially reducing cannabis consumption. This is despite an
increasing amount of resources directed towards achieving this
goal. Both the financial and social costs of law enforcement
under an active policy of total prohibition are high. The policy
fails to meet a number of the crucial criteria for good drugs
policy, enunciated above. Cannabis policy has not been separated
from that of other drugs; arguments about the consequences of
drug use have not been separated from arguments about morals; the
goals of the ‚war on drugs‘ are unrealistic; it appears that the
harms caused by the control regimes outweigh the harms caused by
the drug itself.

The Netherlands provides an example of a quite different
application of the total prohibition policy from that observed in
the United States and elsewhere. In The Netherlands, legislation
makes a clear distinction between ‚drugs presenting unacceptable
risks‘, on the one hand, and ‚cannabis products‘, on the other.
In addition, a clause in The Netherlands Code of Criminal
Procedure, known as the ‚Expediency Principle‘, states that the
Prosecution Office may decide whether or not to enforce certain
laws, to prosecute or to initiate criminal investigation on the
basis of whether or not such action would be ‚in the public
interest‘. Using this clause, the Minister of Justice issued
guidelines in 1976 for the enforcement of drug laws and the
investigation and prosecution of breaches of drug laws.
Essentially it is these guidelines, rather than the total
prohibition legislation, that determines drug policy in The
Netherlands. According to the guidelines, dealing, possessing or
producing small amounts of cannabis do not require police
investigation, arrest or prosecution.

A low priority is also given to the investigation and
prosecution of retail dealing in cannabis, and police are only
required to confront cannabis dealers when they advertise
publicly or conduct their business in a provocative manner. This
is part of a broader government policy of ’normalisation‘, under
which efforts are made not to marginalise drug users, but to
ensure that the harm related to their drug use is minimised and
that they are able to avail themselves of community services to
the optimum extent. Evaluative studies have shown that cannabis
use has not increased in The Netherlands since the liberalisation
of its policy relating to cannabis. Indeed, levels of cannabis
consumption are far lower than those of the United States, where
the total prohibition policy is rigorously enforced. The policy
of the separation of the drug markets (i.e. separating cannabis
from other drugs which can have more serious consequences) has
apparently been successful. In a number of ways The Netherlands‘
drug policy meets many of the criteria for good drug policy
discussed above.

The second policy option is that of prohibition with civil
penalties. Under this option, the penalties for the possession
and cultivation of small amounts of cannabis for personal use are
dealt with by civil sanctions such as paying a monetary penalty,
rather than by criminal sanctions such as fines or imprisonment.
Criminal sanctions still apply to the possession, cultivation and
distribution of large quantities of cannabis. The South
Australian Cannabis Expiation Notice Scheme, introduced in 1987,
and the similar scheme introduced in the Australian Capital
Territory in 1992 are examples of this option in practice.

As mentioned above, under the South Australian and ACT
systems, minor cannabis offences such as the possession of small
quantities, cannabis consumption, or the cultivation of a small
number of plants are expiable offences, i.e. if the prescribed
penalty is paid within the specified period, the offender does
not have to appear in court and avoids a criminal conviction. If
the penalty is not paid then the normal court appearance and
possibility of conviction ensues.

The evaluations conducted to date indicate that the cannabis
expiation notice schemes go a long way towards achieving their
goals and meeting the criteria for effective drugs policy
discussed above. This option takes account of the different
patterns of use and harms relating to cannabis, compared with
other drugs. The policy and legislative development has been
accompanied by attention to the details of implementation, rather
than being expressed in general terms only. It reflects an
understanding of the patterns of harm associated with cannabis,
recognising that much of the harm relates to the patterns of
enforcement of cannabis legislation, rather than to the use of
the drug itself. The approach is realistic and the goals
attainable, focusing on minimising the negative impact on users
of cannabis-related involvement in the criminal justice system,
along with producing society-wide benefits in terms of lessening
the financial costs to the criminal justice system.

The major concern associated with this approach (at least in
South Australia where most experience has been gained) is that
there could be a social class differential in terms of the
application of the policy. In other words, people from lower
socioeconomic classes could be disproportionately represented
among those who fail to expiate the offence and, consequently,
obtain criminal records. This concern is balanced by the
observation that, at a society-wide level, it appears that the
patterns of cannabis consumption are similar in South Australia
and the ACT to those found in the other jurisdictions which
operate policies of total prohibition.

The third legislative option is partial prohibition. This is
an option which seeks to maintain controls on the production and
distribution of cannabis while at the same time avoiding the
costs of criminalising the use of the drug. Under partial
prohibition, it would remain an offence to grow or deal in
cannabis in commercial quantities. It would not be an offence to
use cannabis or to possess or grow it in quantities judged
appropriate for personal use. A number of variations are possible
within this broad outline. A small number of countries, for
example Spain, have followed this model. Other countries, such as
Italy, have made possession and use unlawful, but not criminally
punishable. In none of these cases does it seem that an increase
in cannabis use has resulted from the establishment of this
legislative approach.

The partial prohibition model attempts to use legal
restrictions to discourage cannabis use by concentrating on the
prohibition of the commercial cultivation and supply and on the
advertising of the availability of the product. At the same time,
the model attempts to minimise the personal and social costs of
the total prohibition policy by allowing the use and personal
possession of cannabis. It assumes, therefore, that the harms
associated with cannabis are sufficiently serious to justify some
level of restriction on its availability and that criminal
sanctions remain an appropriate instrument to achieve this
restriction.

Since this model has not been fully implemented and evaluated
in any country, no empirically based information is available as
to the likely outcomes of this model. Nevertheless, it is likely
that the main outcome would be to reduce the financial and social
costs of having personal possession and use a criminal offence.
The possibility of an increased level of use of cannabis, under
this model, has been suggested as a potential limitation on its
effectiveness. It appears, however, that this fear is unfounded
owing to such factors: as the limited role of deterrents in a
situation where only a low probability of detection occurs;
evidence that fear of arrest is not a significant factor in
people’s decision not to use cannabis; and evidence that reducing
or eliminating penalties does not generally lead to any increase
in cannabis consumption. This option meets the criteria of
effective drugs policy to a greater extent than some of the other
options considered here. It separates cannabis from other
(potentially more harmful) drugs. It seeks to minimise the
negative impacts of enforcement regimes. It acknowledges the
contradiction between the goals of limiting cannabis use while
minimising the negative aspects of enforcement. Finally, its
goals are realistic and attainable.

The fourth legislative option is regulation. In this approach,
the production, distribution and the sale of cannabis would be
controlled to a greater or lesser extent by government agencies.
Trafficking outside the regulated system would continue to be a
criminal offence and attract penalties. Activities associated
with personal use, however, would not be penalised. While no full
working model of this option is available, cannabis control in
The Netherlands exhibits some elements of the regulatory option.
While the Dutch Government does not license production,
distribution or sale of cannabis, youth centres and coffee shops
selling hemp products operate openly under certain clearly
defined conditions. Examples of regulatory systems for drugs
other than cannabis exist within Australia. For instance, opium
poppies are cultivated under government licence in Tasmania. A
regulatory regime applies to the drugs tobacco, alcohol and many
pharmaceutical products.

The two major regulatory models for currently illicit drugs
are regulated commercial sale and government monopoly. The option
exists, within this broad approach, for a range of initiatives to
limit the attractiveness of cannabis, including setting high
prices through taxation and limiting the availability of the
product. The primary rationale for the regulatory option is the
recognition that the eradication of all cannabis use is an
unrealistic goal and that, since cannabis use will occur, it
should occur in the safest possible environment. It recognises
that the gateway theory of drug use (that cannabis users have an
increased likelihood of progression to more dangerous drugs as a
direct result of using cannabis) is not supported by empirical
evidence.

The outcomes of a regulatory policy would depend very much on
the regulatory framework established. To achieve its goals, the
regime would need to be structured in such a way as to remove the
incentives for the operation of a black market in cannabis. While
considerable financial and social costs could be avoided by the
operation of this policy, it could entail a complex system of
licensing and monitoring which could involve high administrative
costs. These implementation details would need to be clearly
worked out to attain a satisfactory balance.

A number of policy goals might be satisfied by a well-designed
regulatory system. These include the separation of drug markets,
a separation of arguments about the consequences of drug use from
arguments about morals, the adoption of a realistic approach to
drug use and a reduction in harm. Two important factors must,
however, be kept in mind. The first is the need to mould any
policy of regulation to fit the particular drug Ñ in this case
cannabis. Secondly, regulatory policy must take into account not
only legislative frameworks but also appropriate measures of
social control, such as appropriate drug education and
prohibitions on advertising, so that the goals of reduction of
harm can continue to be pursued.

The final option discussed here is the free availability of
cannabis. Like the total prohibition option, this is an extreme
legislative option. Free availability would mean the absence of
any legislative or regulatory restrictions on the substance’s
cultivation, importation, sale, supply by other means, possession
or use. This legislative option is not practised in any countries
at the moment but was the approach used in Australia until the
1920s. It must be noted, however, that very little cannabis use
occurred up to this time.

Although a strong lobby exists for the liberalisation of
cannabis legislation in Australia, few lobbyists advocate totally
free availability. Perhaps for pragmatic reasons, at least some
form of regulation is generally deemed acceptable. This reflects
concerns about the quality of cannabis (e.g. the presence of
health-impairing pesticide residues), driving or operating
machinery while intoxicated by the drug, its use by children,
etc. Those who advocate totally free availability do so on the
basis of an extreme libertarian position.

It is difficult to imagine the free availability option ever
being fully implemented, particularly in Australia. To do so
would require governments to abrogate all responsibility in the
area of consumer protection, to forego taxation revenue and to
take no action to protect particularly vulnerable groups.

Considering the position of other drugs in Australian society,
it is difficult to maintain an argument for the free availability
legislative option. This is because governments have both the
right and the responsibility to act to mitigate sources of harm
to society. The culture shift in most Western nations to minimise
the harm caused by currently licit drugs, especially tobacco and
alcohol, means that the free availability of cannabis is not a
viable contemporary option.

Chapter
5: Diversion and compulsory treatment

The terms of reference for this study include a review of
diversion and compulsory treatment as they relate to cannabis
users. Diversion of cannabis users can take a number of forms,
including pre-arrest diversion, pre-court diversion, pre-sentence
diversion or post-conviction diversion. Compulsory treatment may
or may not be a feature of diversionary process, that is,
compulsory treatment is sometimes mandated as a condition of the
diversion of an offender or an alleged offender from the criminal
justice system, but sometimes operates independently of that
system.

Pre-arrest diversion is essentially the discretion exercised
by police at the point of contact with an alleged offender. In
addition to this form of diversion, a variety of more or less
formal diversionary programs are in place in Australia and
overseas. As indicated above, they operate at a range of points
in the processing of alleged and convicted offenders and take a
wide variety of forms. In the Australian Capital Territory, for
example, legislation provides, as a sentencing option, that
anyone found guilty of an offence may being sent for assessment
as to whether the person is drug dependent and suitable for
referral to treatment. In these instances, an offender may be
referred to a treatment assessment panel consisting of a legal
practitioner and two others with extensive knowledge of alcohol
and other drug treatment. In conjunction with the offender and
relevant treatment agency, the panel makes a recommendation to
the court which will determine the length of time the person
should spend at the treatment centre and the pattern of periodic
reviews. If the person consistently fails to appear for review or
fails to undertake the treatment program, a summons may be issued
and the person dealt with by the court in the normal way.
Diversionary programs mandated by legislation also exist in South
Australia, New South Wales, Victoria and Western Australia. The
method of operation of the diversionary programs differs from
case-to-case. Diversionary systems in other countries illustrate
a further variety of options.

Although only a tiny minority of cannabis users report
problems with the drug serious enough to require treatment, it is
widely accepted that a prison sentence is an unsatisfactory
option for many offenders with drug problems, and diversion for
the purpose of treatment is a widely used alternative, one
welcomed by judges and magistrates. Criminal justice system
involvement is seen as providing an opportunity to intervene in
drug users‘ lives in order to confront them with their drug
problems and to bring them into contact with treatment agencies.
In some cases, merely attending for assessment is sufficient to
bring about a change in a person’s attitude. While some dispute
exists about the value of coercion, the fact that involuntary
clients tend to spend longer in treatment programs than do
voluntary clients frequently contributes to their exhibiting more
successful treatment outcomes. It should be noted, however, that
few cannabis users need treatment for dependence on cannabis as
such. Rather, their needs are more likely to centre around their
lifestyles and psychological needs generally.

A number of countries, and within Australia the State of
Victoria, have legislative provisions relating to civil
commitment for the compulsory treatment of drug users, generally
people deemed to be drug dependent. In Victoria, for example, a
person who is dependent on alcohol and/or other drugs and who is
considered suitable for treatment may be committed for treatment
for a period of seven days, and at the discretion of the medical
officer in charge of the assessment centre, for a second seven
days. Civil commitment is widely used for drug users in the
United States. It is generally applied to people who come to the
attention of the criminal justice or the health systems, and who
refuse to enter treatment voluntarily. The individual is referred
for medical examination and, on the basis of that examination,
may be committed to compulsory treatment. Naturally, this raises
serious issues regarding the civil rights of the individuals
involved, as decisions are made about their liberty without
referral to a court. The relevance of such programs to
legislative options for cannabis in Australia are limited, owing
to the fact that very few cannabis users have problems with
dependence on the drug, and there is little evidence that
treatment, as it is generally understood, has much to offer
cannabis users.

Chapter
6: Evaluating new legislative approaches to cannabis

The principle of evaluating new policy and legislation is
widely accepted but is less frequently observed in practice. In
Australia and most other Western nations, insufficient has been
done, especially by government agencies, to monitor and evaluate
their national drug policies. This is the case in instances where
drugs legislation has been developed incrementally, and also
where new approaches have been implemented following detailed
policy reviews. Too often evaluation is considered relevant only
after a policy has been in place for some time and changes are
being considered. To be of most value, new initiatives should be
designed and implemented with an explicit and adequately
resourced monitoring and evaluation component built into the
initiative from the outset. Policy evaluation is a different
process from program evaluation, having different goals and
research techniques.

Australia’s National Drug Strategic Plan 1993-97 provides the
framework within which we base our recommendations relating to
monitoring and evaluation. The plan points out that ‚the overall
mission of the National Drug Strategy is to minimise the harmful
effects of drugs and drug use in Australian society‘. Policies
and programs in specific areas, including cannabis, should be
evaluated in a manner consistent with this national goal.

Decision-making relating to legislative options for cannabis
in Australia can be conducted in an ad hoc manner, but clearly
the application of more systematic policy choice models is
preferable. Two groups of such decision-making models are
available to governments, the ‚rational‘ and the ‚incremental‘
approaches. A rational decision-making model is one which goes
through logical steps to clarify the context of the legislative
initiative, its goals, the rationales for the goals and the
likely impacts on key stakeholders. It includes a careful
analysis of the data available to evaluate the proposed approach.
The process would end in making judgments regarding the
appropriateness of the goal or goals, how achievable the goals
are and, if the goals are judged to be achievable, how effective,
efficient and appropriate are the implementation options
available. This systematic, rational approach to policy
evaluation is not often enough seen in the development of drugs
policy. Nevertheless, the National Drug Strategic Plan provides a
clear framework for engaging in this type of analysis. The
information presented in this report, along with the research
reports prepared by other groups for the National Task Force on
Cannabis, provides a firm base for the making of rational policy
choices.

Chapter
7: Conclusion

Australia’s National Drug Strategy provides a policy framework
within which new legislative approaches may be developed. Both
existing and newer 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.

No best single option for cannabis legislation exists. What is
most appropriate will depend upon what goals both policy makers
and the community are seeking to achieve. Our review suggests
that two of the five legislative options discussed above are
inappropriate in contemporary Australian circumstances. They are
the options which we have characterised as total prohibition and
free availability. Australia experiences more harm, we conclude,
from maintaining the cannabis prohibition policy than it
experiences from the use of the drug. We also reject the
legislative option of the free availability of cannabis. Our
society is one that 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, therefore, to argue that cannabis should be
available in an uncontrolled manner.

We conclude that cannabis law reform is required in this
country. Many options for policy, legislation and implementation
processes exist within the broad categories of prohibition with
an administrative decision that it is inexpedient to prosecute
people for minor cannabis offences, prohibition with civil
penalties, partial prohibition and regulated availability. We
believe, on the available evidence, that widely accepted 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.

Appendixes


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