Legislative Options for Cannabis Use in Australia

Executive summary

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.

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.

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.

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.

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.

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.

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.

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