Chapter 3.

CANNABIS IN CONTEXT: HISTORY, LAWS AND INTERNATIONAL TREATIES

Australian laws

Before embarking on a description of the development and present content of Australian drug laws, it should be stated that the Australian Constitution contains no general power to legislate on crime. While many Commonwealth criminal laws have been enacted incidental to the heads of power enumerated in the Constitution, criminal laws have largely been the province of the States. For this reason, the focus of this section is on State and Territory legislation.

As[38] Manderson (1993) has remarked, consumption of drugs in the 19th century was largely a matter of personal choice. Drugs - including the opiates - were available from a wide variety of sources including medical practitioners, pharmacists, homoeopaths, sellers of patent medicines and grocers. Unlike the opiates, however, cannabis was little known or used in the Australia until the 1960s. There were some exceptions. For example, medicinal use of cannabis occurred in the 19th century and to a minor extent, in the 20th century. Cigares de Joy (cannabis cigarettes) were sold over the counter in Australia into the 20th century [39](Manderson, 1993).

However, according to [40]Manderson (1993) 'As late as 1938 Smith's Weekly reported "the first appearance in Australia" of "a Mexican drug that drives men and women to the wildest excesses ... distorts moral values and leads to degrading sexual extravagances"' (p72). This drug was, of course, cannabis.

A number of forces coalesced in the development of drug laws in Australia. The first laws - poisons acts - specified certain drugs required to be sold by medical practitioners or chemists and stipulated labelling requirements [41](Carney 1981). However, these labelling requirements did not apply to drugs sold under medical prescription, to patent medicines or to homoeopathic preparations [42](Manderson 1993, p9).

According to the Joint Parliamentary Committee (Australia 1989) these early controls were instituted in response to the use of arsenic in suicides, poisonings and homicides. In 1862, South Australia enacted the first Australian statute regulating the sale and use of poisons [43](Carney 1981). In 1876 New South Wales and Victoria followed with Sale and Use of Poisons Acts. Most importantly, these early laws generally did not stipulate who could use drugs or for what purposes [44](Fox & Mathews 1992).

The first laws conceptualising drugs as a problem were enacted in the 19th century and were the product of racism and the temperance movement [45](Carney 1981). This phase of legislative controls on the supply and use of prohibited drugs has been characterised as involving 'the application of criminal penalties to certain activities related to drugs, particularly the supply of opium, which had not previously attracted legal sanctions' [46](South Australia 1978, p33). Early laws singled out opium smoking - a practice of Chinese immigrants who had come to Australia in the mid-19th century during the Gold Rush. There were two targets - the Chinese themselves and the Aboriginal people believed to be financially and sexually exploited by the Chinese who provided them with opium.

In 1891 Queensland passed the Sale and Use of Poisons Act which proscribed the supply of opium to Aboriginal people, except for medicinal purposes. Later other States enacted laws directed at opium smoking - South Australia passed the Opium Act 1895, and Victoria passed the Opium Smoking Prohibition Act 1905 and the Police Offences (Amendment) Act 1908. The Commonwealth, by a 1905 Proclamation, banned the importation of opium suitable for smoking.

While racism was a very significant force in the development of early Australian drug laws, other influences were also at work. The late 19th century witnessed a movement away from laissez-faire attitudes towards greater interventionism and a belief in the efficacy of law in promoting social and moral goals [47](Manderson 1993). It witnessed a struggle for supremacy between the medical professional, other health professionals and the sellers of patent medicines. It also saw the growth of the prohibitionist movement. Prohibitionist movements were not confined to the United States nor to alcohol - patent medicines and tobacco were also prohibitionist targets (Manderson 1993).

The second phase in the history of Australian drug laws involved domestic implementation of international agreements [48](South Australia 1978). The growth of international conventions led an inexorable, although very gradual expansion of Australian drug laws to cover cannabis. Australia was not alone as a nation in feeling the pressure to conform to these international instruments. However, it was subject to additional pressures from the British government. The United Kingdom represented its colonies and dominions at international meetings and insisted that they comply with international controls. Following the 1925 Geneva Convention, the Commonwealth was the first government to succumb to the exhortations of the United Kingdom. It proscribed the import of cannabis in 1926 through the Customs (Prohibited Imports) Proclamation and at the same time banned the export of cannabis. Efforts to bring the States into line were less successful. Cannabis use in Australia was not a problem and there appears to have been little domestic agitation in support of proscription. However, while the response of the States was slow, it was nevertheless inevitable: It was enough that international organisations had called for controls and that the calls had been heeded by the United Kingdom Parliament, whose attitudes in this as in other matters were of paramount importance to Commonwealth and State legislators (South Australia 1978, p6).

The first State controls on cannabis use were introduced in Victoria in the Poisons Act 1928, which penalised the unauthorised use of Indian hemp and resin. This was followed by the Dangerous Drugs Act 1934 (SA), the Police Offences Amendment (Drugs) Act 1935 (NSW), the Health Act 1937 (Qld), a 1950 Proclamation under the Police Offences (Drugs) Act 1928 (WA) and the Dangerous Drugs Act 1959 (Tas). Australia's attitude to drugs and drug laws became entrenched at an early stage. Manderson (1993) has described it very clearly - lack of a domestic problem (and this particularly applied to cannabis) meant that legislation was accepted uncritically; no pressure groups existed to stimulate debate or mount opposition, and the absence of a drug problem meant that it was impossible to evaluate the costs and benefits of the prohibitionist model - it was simply assumed that the model worked effectively:

As the structure of modern drug laws ... took shape, each brick depending on those beneath it for support and validity, few remembered or even thought to question why they had ever been laid. So effective had the gradual process of entrenchment been that alternative approaches soon became unthinkable. What counted was the preservation of the laws already in place. If they were failing, the answer was simple - more of the same' [49](Manderson 1993, p75).

The impact of drug use in the 1960s has been well-documented and was an international phenomenon. But until this time, drug use was not viewed as a widespread social problem in Australia - rather as contained and containable. The consumption of drugs such as morphine, pethidine, opium and heroin by dependent users was chiefly confined in Australia to those with a dependence that was therapeutic in its origins or to minority groups - for example, very old Chinese members of the community.

In 1960 Australia reported to the Commission on Narcotic Drugs that some Indian hemp use was occurring in the 'theatrical world' (quoted in Manderson 1993, p144). But during the 1960s, the nature and extent of illicit drug use - including the use of cannabis - changed dramatically. It became more widespread, it became matter of choice (rather than 'necessity' through therapeutic dependence), it was embraced by students and youth, and it was associated with changing moral values and practices, alienation, and challenges to societal values and the political order. It brought increasing numbers of otherwise law-abiding Australians into contact with the criminal law, criminal penalties and associated stigmatisation. The use of drugs such as cannabis and heroin came to be regarded both as a symptom of social malaise and a cause of it.

The third phase in the history of Australian drug laws commenced during the 1960s. From that time 'the States began overhauling their drug laws and the Commonwealth became much more actively involved in the field, both by ratifying new conventions and by revising the provisions of the Customs Act' ([50]South Australia 1978, pp35-6). In addition, in response to treaty obligations, the Commonwealth introduced new federal laws on drugs - the Narcotic Drugs Act 1967 was the first of these. At state level, control of recreational drugs was gradually removed from poisons statutes, whose original purpose was to 'regulate and control the supply and distribution of pharmaceuticals and poisons on public health grounds' ([51]Kirby 1992, p315), and placed into special legislation. Drug laws and drug policies from this time onwards can be characterised as follows.

First, a law enforcement approach became firmly entrenched at Commonwealth level with the important role played by Customs, which had no interest in any medical or public health model of drug use or supply.

Second, penalties were increased.

Third, there were changes to basic principles of criminal law - such as reversal of the onus of proof - in order to make convictions easier ([52]Manderson 1993).

Last, there was a shift in legislative emphasis away from drug users to drug traffickers. Both Commonwealth and some State laws distinguished between traffickable quantities of drugs (including cannabis) and amounts deemed as being less than traffickable quantities. For the most part, penalties for cultivation, production and manufacture, possession and use of cannabis, and possession of drug paraphernalia were substantial during the 1960s and 1970s. For example, in South Australia the penalty was $4,000 and/or 10 years imprisonment for knowingly cultivating cannabis (s5(2)(b)) and $2,000 and/or two years imprisonment for knowingly being in possession, using or administering (s5(1)).

Debate about cannabis, research that showed the widespread nature of cannabis use, alarming law enforcement statistics, the work of the early Parliamentary and other inquiries, and difficulties in administering some drug laws, led to the first legislative changes in the middle to late 1970s. These distinguished between simple possession of cannabis and other drugs. The first jurisdiction to change law enforcement practices and then legislation was the Australian Capital Territory. A non-enforcement policy in relation to simple cannabis possession offences was instituted following a number of court cases in which the police failed to secure convictions because the Public Health (Prohibited Drugs) Ordinance did not contain a definition of cannabis.

In 1975, the Ordinance was amended to include a definition of cannabis. At the same time the maximum penalty for possession of less than 25g of cannabis was reduced to $100. Some reforms also occurred in the Northern Territory. Under the Prohibited Drugs Ordinance 1977 (NT), a first offender was liable to a fine of $500; while second or third offences of possession were more heavily penalised, imprisonment was not provided as a sanction. Further legislative change occurred in the 1980s. The Drugs, Poisons and Controlled Substances Act 1981 (Vic) contained slightly less severe penalties for cannabis trafficking than for trafficking in other illicit drugs. The Drugs, Poisons and Controlled Substances (Amendment) Act 1983 set the maximum penalty for possession of less than 50g of cannabis at $500. In addition, s76 of the Act empowered magistrates to award an adjourned bond in certain circumstances in the case of an offence of possession of up to 50g of cannabis. No conviction could be recorded in the case of a first offender. Section 76 applies only to cannabis, not to other drugs, and it does not apply to trafficking offences in respect of any drug.

In South Australia, the Controlled Substances Act was passed in 1984. As originally formulated, the Act distinguished between offences involving cannabis or cannabis resin and offences involving other illicit drugs. The Act proscribed (and still proscribes) the possession, smoking, consumption, administration or self-administration, manufacture, sale or supply of drugs of dependence or prohibited drugs, and the possession of drug paraphernalia. Under the 1984 Act, the penalty for possession, smoking or consumption of small quantities of cannabis or cannabis resin was a maximum of $500. For any other drug of dependence or prohibited drug the maximum penalty was $2,000 and/or two years imprisonment. Similarly, some distinctions were made between cannabis and other drugs in respect of trafficking offences. More significant reforms came in 1986 with the Controlled Substances Act Amendment Act which provided for an expiation notice scheme. The expiation notice scheme commenced operation on 30 April 1987. Section 45a(2) of the Act enables expiation notices to be issued to adults in certain cases - for example, when less than 100g of cannabis or less than 20g of cannabis resin is involved. Notices can be issued in respect of cultivation that is not for commercial purposes, for smoking or consumption of cannabis or cannabis resin except in a public or prescribed place, and for possession of equipment used for the smoking or consumption of cannabis or the preparation of cannabis resin. Payment of the expiation fee before the expiration of 60 days from the date of the notice means that no conviction is recorded against the alleged offender. The fees are $50 for possession of less than 25g of cannabis and $150 for less than 100g of cannabis. In the case of cannabis resin the expiation fees are $50 for possession of less than 5g and $150 for amounts ranging between 5g and less than 20g of resin. Cultivation of 10 plants or less incurs a fine of $150. It should be noted that at the same time that the cannabis expiation notice system was introduced, amendments to the Act also substantially increased penalties for trafficking offences. In addition, amendments to the Controlled Substances Act in 1990 provide severe penalties for offences such as sale, supply and administration of prohibited drugs and drugs of dependence, including cannabis, to a child.

Although some jurisdictions reformed the law relating to personal consumption of cannabis, heavier penalties were introduced for trafficking offences and a scale of trafficking offences was commonly provided - for example, traffickable, indictable and commercial quantities. Manderson (1993) puts it this way:

The emphasis on Mr Big as an evil in his own right allowed a less severe approach to drug users by removing them from the centrality of drug laws. The harsh penalties imposed on marijuana smokers and other users of drugs could be softened without undermining 'the war on drugs' (p185).

The focus on the Mr Bigs of the drug world has also enabled legislatures to enact drug laws which give extensive powers of search and seizure to the police, and which give considerable powers in relation to the use of listening devices and telephone taps. While some reforms were put in place in the 1970s and 1980s, the picture that emerges nationally is an uneven one.

The Drug Misuse and Trafficking Act 1985 (NSW), for example, distinguishes only between cannabis and other drugs in the case of commercial trafficking. In the case of cannabis the maximum penalty that can be imposed is $500,000 or 20 years imprisonment, or both. For commercial trafficking in any other drugs, a life sentence can be imposed. In New South Wales, possession, administration and self-administration of prohibited drugs, including cannabis, are proscribed, as is the possession of equipment for the administration of prohibited drugs. Personal consumption offences (involving less than five plants or less than 25g of cannabis) make an offender liable to a penalty of $2,000 and/or two years imprisonment. Cultivation, manufacture and production, and supply are prosecuted on indictment. The Drugs Misuse Act 1986 (Qld) assigns dangerous drugs to Schedules under the Act. Drugs like heroin and cocaine appear in the First Schedule and cannabis sativa is listed in the Second Schedule. Offences relate to trafficking (s5), supply (s6), production of dangerous drugs (s8), possession (s9), and possession of drug paraphernalia (s10).

In addition, penalties vary in the case of aggravated supply which is defined in s6(2) of the Act as including supply to a minor, an intellectually handicapped person, and supply in an educational or correctional institution. While there are differences in the statutory penalties applicable to First and Second Schedule drugs, they are minor.

Under the Drugs Misuse Act Amendment Act 1990, the penalty for unlawful trafficking in cannabis carries a penalty of 20 years imprisonment, while for First Schedule drugs the penalty is 25 years (s5). Possession of cannabis carries a penalty of 15 years imprisonment, or 20 years imprisonment if the quantity equals or exceeds 500g or 100 plants (s9). The penalty for possession of drug paraphernalia is imprisonment for two years. Offenders may be fined in addition to or instead of being imprisoned (s54) and may be prosecuted summarily for minor offences (s13).

In 1989 the Australian Capital Territory remodelled its drug control legislation, and the Drugs of Dependence Ordinance was introduced with the idea of it being used as a model for all other jurisdictions. The Act establishes two classes of drug:

• prohibited drugs which are subject to special treatment. (According to the Act's Explanatory Statement, prohibited drugs have no medical use and are harmful for recreational purposes); and
• drugs of dependence, which are distinguished from prohibited drugs in the Explanatory Statement, in that they are said to have a medical use.

The Act defines cannabis, cannabis fibre, cannabis oil, cannabis plants and cannabis resin. Schedule 2 to the Act lists cannabis, cannabis oil and cannabis resin as prohibited drugs and defines commercial and traffickable quantities of the drug. In addition, cannabis is listed in Schedule 5 as a prohibited plant.1

The Act makes clear distinctions between personal use activities and trafficking. It reserves extremely harsh penalties for the latter and contains deeming provisions. It also makes distinctions in penalties between cannabis and other prohibited drugs. Cultivation of prohibited plants, including cannabis, is an offence (s162(2)), as is cultivation for the purposes of sale or supply (s162(3)), sale or supply, or possession for sale or supply (s165(1)). Possession, self-administration and administration of cannabis are offences under s171.

The harshest penalties are reserved for sale or supply of commercial quantities of cannabis - life imprisonment (s165), and cultivation of more than 1,000 plants - life imprisonment (s162(3)).

In the Northern Territory, the Misuse of Drugs Act 1990 prescribes a penalty of $2,000 or two years imprisonment for administering cannabis. Possession of less than a traffickable quantity 'attracts penalties ranging from a $10,000 fine to imprisonment for 14 years; possession of a commercial quantity attracts penalties ranging from 14 to 25 years imprisonment. The penalties for cultivation offences also depend on the quantity cultivated; commercial quantities carry a 25-year prison term; traffickable quantities carry a seven-year prison term; and other cases attract a penalty of a fine of $5,000 or imprisonment for two years' (Australian Capital Territory 1991, p35).

Like Queensland, Northern Territory legislation creates separate offences and penalties in respect of supplying illicit drugs to children. In the Northern Territory, the penalty is 25 years or imprisonment for life (s5). Offences and penalties relating to illicit drugs are covered by the Poisons Act 1971 and the Criminal Code in Tasmania, and in Western Australia by the Misuse of Drugs Act 1981.

In the Australian Capital Territory, changes to the law on cannabis were introduced by the Drugs of Dependence (Amendment) Act 1992. These amendments were by no means as far-reaching as those envisaged by the Legislative Assembly's Select Committee on HIV, Illegal Drugs and Prostitution (outlined earlier) which recommended the removal of personal possession offences involving small amounts of cannabis. However, the amendments do introduce an expiation notice scheme that applies to both adults and juveniles (s171A). Under the amendments, a simple cannabis offence is defined as: * an offence under s162(2) of cultivating or participating in the cultivation of not more than five cannabis plants; * an offence under s171(1) of possessing not more than 25g of cannabis. A police officer is empowered to serve an offence notice on a person believed to have committed a simple cannabis offence. If the prescribed penalty of $100 is paid within 60 days, then the offence is discharged and no conviction is recorded. The prescribed penalty of $100 is the same as that previously applying under the Act for possession of small amounts of cannabis.

Drug law reform is still an active issue for some Australians. In 1993, interest in drug laws and social policy resulted in the establishment of an Australian Parliamentary Group on Drug Law Reform - a group whose membership includes current and former politicians from different political parties and a range of jurisdictions, medical practitioners, researchers and members of the legal profession. Among the short-term goals being considered by the Committee are the rejection of criminal sanctions for personal use of drugs and the nationwide adoption of an expiation scheme model for personal use of cannabis ([53]Van Raay 1993).