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Miscellaneous Statements on Drug Policy

Alternative Systems of Cannabis Control in New Zealand

A Discussion Paper

Drug Policy Forum Trust, Wellington

July 1997


Alternative Systems of Cannabis Control in New Zealand

Contents


Alternative Systems of Cannabis Control in New Zealand

Preface

In this discussion paper the Drug Policy Forum summarises the research literature on alternative systems of cannabis control. We analyse the relative advantages and disadvantages of each system, primarily from a New Zealand perspective. However, much of the discussion is relevant to all countries.

The Forum does not recommend a particular alternative system in this discussion paper - beyond rejecting total prohibition, which we regard as unworkable and counterproductive. Based on the submissions we receive concerning this discussion paper and on our broader consultative process the Forum will recommend a specific alternative system of cannabis control for New Zealand early in 1998.

Submissions should be sent to Drug Policy Forum Trust, PO Box 12199, Wellington, and must be received no later than 15 October 1997.


Alternative Systems of Cannabis Control in New Zealand

Foreword

The Drug Policy Forum Trust is a group of scientists and professionals dedicated to elevating the level of debate concerning illicit drug policy in New Zealand. We view drug use as primarily a public health issue.

Like dozens of professional bodies before us, the Forum has concluded that placing legal sanctions on the use of popular psychoactive drugs - cannabis in particular - is counterproductive and indeed harmful (although drug-induced misbehaviour causing harm to others should of course remain illegal). Whatever damage is produced by these agents, both to users and to society, is inevitably magnified by prohibition.

That this conclusion should remain controversial, even today, represents a serious failure of communication. During the past 25 years at least one governmental, academic, or scientific commission per year, on average, has concluded that a policy of total cannabis prohibition cannot be justified on scientific grounds. Most of these reports are available on the World Wide Web (www.druglibrary.org); several are described in this discussion paper.1

We know of no scholarly body to have endorsed cannabis prohibition as the preferred model of cannabis control. This is the case primarily because cannabis prohibition:

  • Creates a lucrative and often violent black market, which preys on young people
  • Impedes effective education and treatment programmes
  • Increases the appeal of cannabis to rebellious young people
  • Creates disrespect for the law
  • Breeds police corruption
  • Marginalises and oppresses young people and racial minorities, including Maori

The principal argument advanced for retaining cannabis prohibition is that repealing legal sanctions on (adult) use would lead to increased cannabis use within society, including increases in

  • the number of people who use cannabis (both adults and teenagers)
  • the length of cannabis-using ‘careers’
  • the intensity of cannabis use during those careers
  • the prevalence of cannabis dependence.

These concerns are certainly worth examining; we do so in Appendix A. Based on available evidence, we conclude that any increase in cannabis use following repeal of total prohibition would be (1) small, (2) largely limited to adults, and (3) have little adverse impact on public health.

Additional arguments commonly advanced in support of total cannabis prohibition are:

  • Cannabis is a dangerous drug, therefore it must be totally prohibited.
  • Removing total cannabis prohibition would increase use of hard drugs.
  • Removing total cannabis prohibition would send the wrong message.
  • We already have enough trouble with alcohol and tobacco, therefore we must keep cannabis totally prohibited.

None of these arguments can withstand even a modicum of scientific or logical scrutiny. Indeed, these "arguments" are little more than slogans. See Appendices A-D for a discussion of these issues.

We hope that the search for an alternative, evidence-based cannabis control policy is widely supported across New Zealand. Even impassioned anti-cannabis campaigners have acknowledged that it makes little sense to criminalise adults who wish to relax in private with cannabis rather than alcohol. The problem has been, and remains, that whereas prohibition is a simple policy - nobody can use cannabis under any circumstances - any other policy inevitably lends itself to shades of grey and requires that difficult lines be drawn.

Thus the challenge, as we see it, is to design a credible, detailed alternative system for cannabis control. To our knowledge, this task has not yet been attempted in New Zealand, nor has the international scientific literature concerning alternative systems been summarised here.

It is this latter summarisation task which we attempt in this discussion paper. The former task, designing a detailed alternative system, will be tackled in association with other professional bodies, based on comments received on the discussion paper and on the results of a broad consultation process, including substantial discussions with Maori.


Alternative Systems of Cannabis Control in New Zealand

Executive Summary

The Drug Policy Forum Trust is a group of scientists and professionals dedicated to elevating the level of debate concerning illicit drug policy in New Zealand. In this discussion paper the Forum summarises the research literature concerning alternative systems of cannabis control. The Forum will recommend a specific alternative system of cannabis control for New Zealand early in 1998.

Systems of Cannabis Control: Terminology and Classification

Several taxonomies of cannabis control systems have been proposed. In this discussion paper we follow the classification developed by the Australian Institute of Criminology:

  • total prohibition without an administrative expediency principle
  • total prohibition with an administrative expediency principle (in which the government agrees not to enforce the law under defined circumstances)
  • prohibition with civil penalties for minor offences
  • partial prohibition
  • regulation
  • free availability.

The terms "legalisation" and "decriminalisation" are avoided because of confusion regarding their meaning. The term "partial prohibition" refers to a system that legalises possession and cultivation of cannabis for personal use, but bans for-profit sale, whereas "regulation" refers to a system roughly equivalent to that used for alcohol.

Analysis of Cannabis Control Policies

We assume that the principal goals to which a national cannabis policy in New Zealand should be directed are (1) to minimise the harmful use of cannabis and (2) to promote public health. In view of these goals, a key attribute of cannabis control policies is the extent to which policies reduce (or produce) harm to individuals and societies.

One major study of alternative policies listed nearly 50 "harms and costs" related to drug use, along with an indication of who bears the harm/cost (e.g. user, society) and the primary source of the harm (e.g., the drug itself, illegality). Harms were divided into four categories: health, social and economic functioning, safety and public order, and criminal justice.

The authors concluded that the substantial majority of harms and costs associated with drug use stem from illegality and/or enforcement of the prohibition laws. However, as noted by the authors, judgment is required to assess the relative weight assigned to the various harms and costs - making it difficult to rank policies definitively according to harm produced or prevented.

The most extensive analysis of the social effects of alternative cannabis control systems was conducted by the Australian Institute of Criminology (AIC) in 1995. This study evaluated each option in the AIC’s six-part taxonomy (above) along several dimensions, including: patterns of cannabis consumption, health and psychological functioning, law enforcement, crime and other legal issues, education and employment, family and community relations, and the social impact on young people. The authors concluded that, although large gaps existed in the research evidence, a policy of total prohibition generally increases harm across each dimension.

These studies imply that a cannabis control policy based on harm reduction requires removal of criminal sanctions on (at least) personal possession, ruling out a policy of total prohibition without an expediency principle (i.e., New Zealand’s current policy).

Total Prohibition with an Expediency Principle

The Netherlands has since 1976 permitted the sale and purchase of small quantities of cannabis through a system of regulated coffeeshops. These activities remain technically illegal, but are tolerated by the legal-judicial system. According to current information obtained from The Netherlands’ official Ministry of Health internet website, the Dutch policy has

protect[ed] young adults who wish to use soft drugs at a certain stage in their lives from the world of hard drugs has also proved to be a realistic one. Only a very small proportion of the young people who use soft drugs make the transition to hard drugs.

The extent to which a Holland-style coffee-shop model of cannabis control would suit New Zealand is an interesting and open question. The problem of "drug tourism", which has troubled Amsterdam and a few other Dutch cities, would likely be substantially less in New Zealand due to its remoteness and lack of shared borders with other countries.

Prohibition with Civil Penalties

In this system possession and use of cannabis are not subject to criminal penalties, but are subject to fines. The major advantage of the civil penalty approach is political in that it has already been implemented in several countries. The basic operational advantage of this approach is that low-level offenders would not be burdened with a criminal record. Another potential advantage lies in reducing the cost of enforcing the cannabis law. However, several years’ experience in South Australia and the Australian Capital Territory has shown that such schemes have saved little or no money for the legal-judicial system, and in fact can substantially increase the number of "cannabis crimes". On the other hand, considerable savings has been demonstrated following institution of this policy in California.

The major drawback of the civil-penalty approach is that simply substituting civil penalties for criminal ones does nothing to reduce the size (and harmfulness) of the black market. The high profits available in illicit cannabis commerce would continue to draw entrepreneurs into that market.

Partial Prohibition

Partial prohibition would permit adults to possess up to a defined amount of cannabis and to cultivate up a certain number of cannabis plants. This system was recommended by the Victorian Premier’s Drugs Advisory Committee in 1996 and by the Australian Institute of Criminology in 1995, primarily on the grounds that it would substantially reduce the black market and associated harms. It is in place in Alaska, Spain and Italy.

The extent to which partial prohibition would affect the black market and its associated harms is an important question. Experience in Alaska suggests that a substantial black market has persisted despite a policy of partial prohibition (i.e., permitting personal-scale cultivation), but the relevance of this experience to New Zealand is uncertain.

The problem of specifying limits on personal-scale cultivation is a difficult one. We discuss this question at some length, concluding that although limits of between five and eight plants under cultivation at one time might seem reasonable. However, there are significant problems related to enforcement and to assuming criminal intent based simply on the number of plants under cultivation.

Regulation

Only a regulated system is highly likely to severely reduce or eliminate the black market in cannabis. By removing this important source of black market income the power of gangs over young people would in all likelihood be substantially reduced.

Additional potential advantages to a regulation approach include:

  • Only via regulation can Government harness the financial power of cannabis commerce, i.e., through taxes.
  • Quality and potency can best be controlled through governmental regulation.
  • Regulation provides Government with substantial control over the terms of sale and related activities.

The differential impact of partial prohibition versus regulation on rural (often Maori) communities is an important, unanswered question. It is important that input be obtained from Maori communities concerning the likely effects of various systems of cannabis control on Maori health and well-being.

The major drawback to a regulated system is likely to be political. No other country has adopted a system in which cannabis is regulated and taxed like alcohol or tobacco, although the Netherlands approach comes close. Partial prohibition, on the other hand, has been tried with success in other countries. In addition, there is some concern that a regulated approach might increase the extent to which children are exposed to cannabis.

International Treaty Considerations

The Single Convention on Narcotic Drugs 1961 is often considered a barrier to the liberalisation of cannabis policies. However, analysis of treaty commentary suggests that treaty proscriptions concerning cannabis are aimed primarily at large-scale (even international) trafficking.

Governmental commissions on cannabis control have arrived at divergent opinions on the question of whether the Single Convention requires signatory nations to ban personal use of cannabis. Most have discerned substantial flexibility in this regard. A 1994 report by the Australian Institute of Criminology took the position that only free availability is ruled out by international treaties, while the Victorian Premier’s Drug Advisory Council took the position that partial prohibition (at least) was permitted under the treaties.

Our reading of this complicated literature, and of the treaties themselves, leads us to conclude that a policy of partial prohibition, as defined above, would almost certainly be considered by most authorities as being in compliance with international treaties. On the other hand, a policy of regulated commerce would find less support among a majority of authorities. Of more basic concern is the extent to which international involvements should be permitted to dictate domestic policy.

Key Issues in Cannabis Control

Outcome Assessment

Specification of a plan for ascertaining the important outcomes of a reformed cannabis policy is an essential part of the system. These outcomes include changes in the extent of use within society of cannabis and other drugs, as well as

  • number and seriousness of crimes committed due to drugs or black market
  • health care costs attributable to drugs (analysed by drug)
  • treatment rates for various drugs
  • performance in schools, including number of suspensions
  • extent of child and spousal abuse
  • road accident rates
  • costs of police and enforcement.

Education Programmes

It is imperative that appropriate and effective education programmes be developed in conjunction with a reformed cannabis control system. As always, specialised programmes would be needed for different target audiences (e.g., adults, school children). The cornerstone of all programmes would be the provision of accurate information. A key goal of drug education programmes would to facilitate the evolution of appropriate public attitudes regarding the responsible use of cannabis.

Treatment Programmes

Relatively little is known about the effectiveness of treatment programmes aimed at rehabilitating cannabis users with problems of dependence or harmful use. The Forum will depend on advice and submissions from experts in this arena to arrive at additional recommendations concerning cannabis treatment programmes in our final report.

Cannabis and Driving

In reviewing the evidence on this topic, we find - somewhat surprisingly - that almost every major study performed in this area has shown that drivers who use cannabis only (i.e., no concomitant alcohol) perform at least as well as "straight" drivers.

However, the combination of alcohol and cannabis appears to be particularly conducive to the production of fatal accidents. Accordingly, one might consider a policy in which the consumption of any alcoholic beverages be prohibited if one also consumes cannabis prior to driving. Such a policy might be difficult to enforce, however.


Alternative Systems of Cannabis Control in New Zealand

In this discussion paper we summarise existing scholarly literature concerning alternative systems of cannabis control. The paper is divided into four sections. Section 1 describes the various systems of cannabis control, including certain issues of terminology and classification. Section 2 explores the relative merits and drawbacks of these systems. Section 3 examines the implications of international treaties for efforts to change cannabis laws and policies. Section 4 discusses several key issues that must be resolved during the development of a sensible system of cannabis control in New Zealand.

Section 1. Systems of Cannabis Control: Terminology and Classification

The problem of cannabis control was first addressed one hundred years ago by the British Indian Hemp Drugs Commission, which issued its seven-volume report in 1893-4. The commission concluded that cannabis prohibition was not practicable, and that the best solution was to tax it to the extent possible. After examining the different regulatory systems in various provinces of India, the Commission recommended the system in Bengal, where cannabis was taxed more rigorously than in other provinces by means of a system of excise fees and vendors’ licenses. (Cannabis possession and consumption remained legal in India until 1989, when these activities were prohibited under terms of the Single Convention Treaty of 1961; see Section 3.)

The first detailed analysis of alternative systems of cannabis control was performed by the National Commission on Marihuana and Drug Abuse (NCMDA) in the United States in the early 1970s. The NCMDA considered three basic strategies: total prohibition, "partial prohibition," and regulation, the latter approach entailing legal commerce in cannabis, with restrictions analogous to those placed on the sale and use of alcohol or tobacco.

In its final report,1 the NCMDA rejected the options of total prohibition and regulation, recommending instead the adoption of a system of "partial prohibition" or "decriminalization," terms used interchangeably by the NCMDA to mean the elimination of penalties (criminal or civil) for private possession of small amounts of cannabis, while continuing to regard any cultivation or for-profit sale as criminal activities.

This definition of "decriminalization" was reinforced by the United Nations in 1976, which also introduced the term "depenalization":

By ‘decriminalization’ is meant the legislative process that renders lawful certain acts previously prohibited by criminal law, while ‘depenalisation’ implies the legislative process by which certain criminal offences are converted into matters to be dealt with administratively or by Civil Agencies, thus eliminating or reducing this stigmatizing effect inherent in the criminal law and easing the burdens of the criminal courts.2

During the five years following release of the NCMDA report, eleven States removed criminal penalties for private possession of cannabis, substituting instead civil penalties involving payment of a small fine.3 Sale and cultivation remain felonies, although Alaska permits cultivation of a few plants for personal use.4 Strictly speaking, these policies (except Alaska’s) fit the UN definition of "depenalisation". However, they have almost universally been referred to as "decriminalization", despite not meeting either the NCMDA’s nor the United Nations’ usage of this term. (The Alaskan regime is also typically referred to as "decriminalization", although the tolerance of small-scale cultivation places it within the Australian definition of "partial prohibition", as defined below.) Similarly, the cannabis control regimes in place in South Australia and the Australian Capital Territory, in which civil fines have replaced criminal sanctions for minor cannabis offences (including cultivation), but within which cultivation and sale are still subject to criminal sanctions, are generally referred to as "decriminalisation". The term "depenalisation" appears to have disappeared in the 1970’s.

Because "decriminalisation" has come to mean many different things, contemporary drug policy analysts have generally abandoned the term. For example, in their 1996 paper "Assessing alternative drug control regimes," MacCoun and colleagues described eight alternative systems, ranging from "pure prohibition" to "free market":

The concept of "decriminalization" is conspicuously absent . . . Though the term is often used casually as a synonym for legalization, decriminalization is not a distinct model in our framework, but rather, a form of low-severity prohibition.5

Similarly, in its 1994 report "Legislative options for cannabis use in Australia,"6 the Australian Institute of Criminology (AIC) adopted the following classification:

  • total prohibition without an administrative expediency principle
  • total prohibition with an administrative expediency principle
  • prohibition with civil penalties for minor offences
  • partial prohibition
  • regulation
  • free availability.

The AIC believed that the use of this terminology:

avoids the semantic problems that often cause much confusion in debates about drug policies. In particular, it avoids the terms ‘decriminalisation’ and ‘legalisation’, terms which have different meanings for different authorities. The five options listed 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 taxonomy of cannabis control regimens adopted by the AIC was largely borrowed from the 1978 report of the South Australian Royal Commission into the Non-Medical Use of Drugs (the Sackville Commission)7, although the AIC added the distinction regarding an administrative expediency principle with respect to total prohibition.8

In the present report we also avoid the term "decriminalisation". However, another semantic issue remains to be resolved. Specifically, both the Sackville Commission and AIC use the term "partial prohibition" to mean a system that legalises both personal possession and cultivation of cannabis for adults in small, non-commercial amounts, e.g., up to five plants per household.9 This usage of "partial prohibition" is at odds with the definition adopted by the NCMDA, as described above.10 In its more recent 1995 report The Social Impact of Legislative Options for Cannabis in Australia,11 the AIC continued using both the above taxonomy and the term "partial prohibition" to mean legalisation of (adult) personal-scale cultivation. In its 1996 report, The Victorian Premier’s Drug Advisory Council also adopted the same taxonomy and the same meaning of "partial prohibition."12

Accordingly, in the present report we also adopt the AIC taxonomy (above), including its use of "partial prohibition" to mean the removal of all sanctions from both possession and cultivation of personal amounts, including the non-profit transfer of cannabis among adults.

We have elected to exclude from consideration in this report the various medical and personal licensing options included in the taxonomy suggested by MacCoun et al. (Footnote 5). In our view, these options (together with free availability) are probably not viable for implementation in New Zealand in the near future.


Section 2. Analysis of Cannabis Control Policies

We now consider the various possible systems of cannabis control in light of the principal goals to which a national cannabis policy in New Zealand should reasonably be directed, namely (1) to minimise the harmful use of cannabis and (2) to promote public health.

In view of these goals, a key attribute of cannabis control policies is the extent to which policies reduce (or produce) harm to individuals and societies. In this regard, MacCoun et al. listed nearly 50 "harms and costs" related to drug use, along with an indication of who bears the harm/cost (e.g. user, society) and the primary source of the harm (e.g., the drug itself, illegality).1 Harms were divided into four categories: health, social and economic functioning, safety and public order, and criminal justice.

Ten health-related harms were identified (e.g., health-care costs, suffering due to physical or mental illness, addiction, disease transmission, inhibition of voluntary pursuit of treatment, restriction on medicinal uses of drugs), of which four were caused wholly or in part by the drug’s illegal status or enforcement, while seven stemmed wholly or in part to use of the drug per se. Of twelve harms related to social and economic functioning (e.g., reduced performance in work or school, poor parenting/child abuse, harm to self-esteem, reputation and employability, accruing criminal networks, infringement on personal liberty), eight were related to illegality and enforcement; seven to use (more than one cause was listed for three harms).

Ten harms concerning safety and public order were identified (e.g., accidents at work or on the road, property crime, violence, sense of public disorder, and observably widespread violation of the law) of which eight could be traced to illegality or enforcement, and five to use. Finally, all nineteen harms related to criminal justice (e.g., increased costs for police, courts, and incarceration, policy invasion of personal privacy, corruption and demoralisation of legal authorities, stigma of criminal record) are caused by enforcement and/or illegality alone.

The authors concluded that the substantial majority of harms and costs associated with drug use stem from illegality and/or enforcement of the prohibition laws. However, as noted by the authors, judgment is required to assess the relative weight assigned to the various harms and costs - making it difficult to rank policies definitively according to harm produced or prevented. Nevertheless, methods do exist for assigning utilities (or disutilities) to various outcomes, and relative weights could be assigned to the outcomes by samples drawn from the community, from users, or from "experts". It is also possible that the common metric of cost could be assigned to various outcomes. In either case, a judgement could be made about which policy produced the least possible harm.

The most extensive analysis of the extent to which alternative cannabis control systems reduce harm was conducted by the Australian Institute of Criminology in 1995.2 The main report was accompanied by a series of seven working papers, the first of which, A comparison of the social impacts of the legislative options for cannabis and their enforcement, evaluated each option in the AIC’s six-part taxonomy (above) along each of the following dimensions:3

  • patterns of cannabis consumption
  • health and psychological functioning
  • law enforcement, crime and other legal issues
  • costs of cannabis law enforcement and other economic factors
  • driving behaviour
  • public attitudes
  • education and employment
  • self-identity
  • family and community relations
  • social impact on young people

The authors concluded that, although large gaps existed in the research evidence, a policy of total prohibition generally increases harm across each dimension. For example, with respect to the dimension most of concern to many observers - social impact on young people - the report concluded that removing criminal penalties from personal use of cannabis would produce the following advantages.4

  • Reduce the contact of young cannabis users with black marketeers who are liable to be more criminal than their customers.
  • Separate the cannabis market from other illegal drug trades thereby making it less likely that cannabis users would graduate onto more dangerous drugs
  • Remove the stigma and potentially devastating social harm associated with receiving a criminal record at a young and, in an educational and occupational sense, crucial age.
  • Increase both the opportunity and the finance for developing and implementing successful educational campaigns about drug use.
  • Help demystify and make less attractive the experience of ‘getting stoned’ should there be any truth to the popular belief that young people are attracted to illegal drugs as an expression of rebellion. Indeed, in The Netherlands, it has been claimed that policy succeeded, as the government intended, in ‘making drugs boring’.
  • Reduce tension between young people who use cannabis and the police, improve the reputation and perceived fairness of the law.
  • Aid communication between young people and their parents, many of whom would have been part of the cannabis culture of the 1960’s and ‘70’s, by removing the stigma, and potential drawbacks, attached to admitting to having done something that was, and is, a criminal offence.

Systematic analyses of the harms associated with cannabis control, such as the two reports just cited, strongly support the conclusion that the greatest harm associated with cannabis stems from its illegality and from the resulting involvement of cannabis users with criminality and the legal-judicial system. It thus seems axiomatic that a cannabis control policy based on harm reduction would require the removal of criminal sanctions on (at least) personal possession. That is, these studies rule out a policy of total prohibition without an expediency principle (i.e., without an administrative decision not to enforce the law, as in the Netherlands). This, of course, is New Zealand's present policy.

The question then becomes which of the remaining five options (outlined on the bottom of page 2) is most appropriate. As noted above, we believe that a policy of free availability (e.g., treating cannabis like caffeine) is insufficiently realistic to warrant discussion here.

Total Prohibition with an Expediency Principle

As noted in Footnote 8, Section 1, the Netherlands has since 1976 permitted the sale and purchase of small quantities of cannabis through a system of regulated coffeeshops. These activities remain technically illegal, but are covered under a term that means "illegal but permitted" -- that is, police put the lowest priority on enforcing these laws. Supplies of cannabis are obtained from a "grey market" consisting both of cannabis brought over international borders (illegally) and from quasi-legal sources inside Holland.

According to current information obtained from The Netherlands’ official Ministry of Health internet website, the results of the Dutch policy have been quite positive:5

In recent years [cannabis] use has once again been considerably higher in other countries (including the United States) than in the Netherlands. This is also true as far as use among minors is concerned. The decriminalisation which took place in the 1970s did not lead to an increase in the use of soft drugs among young people then either. The Dutch objective of protecting young adults who wish to use soft drugs at a certain stage in their lives from the world of hard drugs has also proved to be a realistic one. Only a very small proportion of the young people who use soft drugs make the transition to hard drugs. . . . The government regards the results achieved to date as grounds for continuing the principal elements of the pragmatic policy pursued up to now, which has been geared to controlling the damage done to health.

Recently, the Netherlands came under pressure from French president Jacques Chirac to re-institute cannabis prohibition. Although no serious consideration was apparently given to complying with this request, the law was changed to reduce the amount of cannabis one can purchase from a coffeeshop at one time from 28 to five grammes.

The extent to which a Holland-style coffee-shop model of cannabis control would suit New Zealand is an interesting and open question. From a harm-minimisation standpoint such a system would clearly be an improvement over present total prohibition policies. However, the reliance of the Dutch system on grey-market (or frankly illegally obtained) supplies of cannabis is suboptimal and probably not sustainable in the long term.

One substantial advantage of the Dutch system is that is has proved itself successful after more than 20 years of implementation. Moreover, the international community (with a few notable exceptions 18), has generally come to accept the Dutch approach to cannabis control. The problem of "drug tourism", which has troubled Amsterdam and a few other Dutch cities, would likely be substantially less in New Zealand due to its remoteness and lack of shared borders with other countries.

Prohibition with Civil Penalties

A policy of prohibition with civil penalties is technically not "decriminalisation", as that term is still often used in this context. Thus, someone who denies guilt or does not pay their "instant" fine will still have to be prosecuted through the criminal courts (or some analogous body). A civil-fine policy changes the way in which the law is enforced in many or most cases, but does not change the essential character of the prohibition.

Without much doubt the major advantage of a civil-fine approach is political, in that such systems have been in place in Australia, the United States, and Europe for many years. As such, adoption of a civil-fine approach in New Zealand would be relatively non-controversial, and indeed several MPs are on record as supporting a civil-fine approach, including the leader of the Labour Party, Helen Clark.7 It might therefore be argued that a civil-fine approach ought to be implemented initially, if only as a "foot in the door". An alternative system could then be substituted if deemed indicated based on experience with the civil-fine approach.

On the other hand, it might also be argued that New Zealand should learn from - rather than repeat - others' experiences with civil-fine systems, which, as will be described below, have not been especially encouraging. Moreover, if a civil-fine system were implemented after much political turmoil it might take several years before politicians would be willing to revisit the issue (perhaps under the rubic of "We've got to give the 'new' system a chance to work").

The major intrinsic (as opposed to political) advantage of civil-fine approaches is that low-level offenders are not burdened with a criminal record. Such an advantage is substantial, of course, although as observed in footnote 4 the extent to which a record of cannabis crimes burdens New Zealanders is unknown, and probably is not as great as in some other countries. Thus, the advantage to be gained from the civil-fine approach in this regard might be relatively small in New Zealand.

Another potential advantage of civil-fines approaches lies in reducing the cost of enforcing the cannabis law. However, several years’ experience with such schemes in Australia has shown that they do not necessarily save money for the legal-judicial system, 8 and in fact can increase substantially the number of "cannabis crimes" 9 - a phenomenon known as net-widening."

Diversion Schemes

Net-widening probably affects most systems incorportating reduced penalties, including "diversion" schemes in general, 10 where offenders who are charged with (usually) relatively minor crimes are offered an alternative resolution to the charge which does not involve trial or the possiblity of conviction. Such schemes are widely employed in Australia, 11 and have been used in New Zealand since 1989. Diversion programs often aim to obtain treatment for drug offenders; 12 in New Zealand, offenders accepting diversion are typically required to apologise and make reparation to their victims (if any), or to make a "contribution" to a public charity. 13

The practice of diversion does not fit neatly into the taxonomy of cannabis control systems considered in this discussion paper. In particular, the terms under which offenders are discharged from the system vary considerably and do not amount simply to paying a civil fine. As such, diversion schemes differ from "classic" civil-fine systems, such as the Cannabis Expiation Notices system used in South Australia and the Simple Cannabis Offence Notice scheme in the Australian Capital Territory. 14 15

In a sense, diversion schemes are based on administrative expediency principles, and as such could be grouped with The Netherland's approach. Specifically, police exercise administrative discretion over who will be offered diversion and who will be prosecuted, and such discretion is motivated in large part by concerns of expediency.

However, this same discretion, while potentially useful when skillfully and impartially applied, can also be a source of unfairness if applied on a discriminatory or ad hoc basis. Consider the New Zealand Crown Law Office Prosecution Guidelines, in which it is noted that "It is of great importance that decisions to commence and to continue prosecutions be made on a principled and publicly known basis." 16 However, it is unclear whether any such "principles" have been made publicly known. Indeed, it appears that decisions about whom to offer diversion are made on a case-by-case basis. 17 This situation differs substantially from the administrative expediency principle operating in The Netherlands, where the rules regarding non-prosecution are relatively clear and uniformly applied. For this reason, and because diversion resembles civil-fine approaches in aiming to avoid exposure to the criminal justice system, it seems appropriate to classify diversion schemes with civil-fine systems.

Little is known about the outcomes of diversion schemes, including New Zealand's, with respect to the costs and time required of police and magistrates, satisfaction with the process of all involved parties, level of re-offending, and characteristics of offenders offered diversion. In particular, the possibility of differential application of civil-fine and diversion schemes is real and worrisome. As noted in the 1995 AIC report, almost half of those charged with minor cannabis crimes in South Australia failed to pay their fines,

therefore ending up in the criminal justice system anyway. Correspondingly, early results suggested that non-payers were more likely to be individuals of lower socio-economic status suggesting that the scheme is discriminatory with regards to some groups.18

Also,

      On the basis of police data for 1993 and 1993/94, expiable offences appeared to comprise about 83% of cannabis offences; however, only about 45% of CENs were expiated. . . . It seems probable that poverty - inablity to pay - is one reason for the low expiation rate. 19

Probably the major drawback of both civil-penalty and diversion systems is that simply substituting civil or other penalties for criminal ones does nothing to reduce the size and harmfulness of the black market. The high profits available in illicit cannabis commerce would continue to draw entrepreneurs into that market. This is significant because many of the harms to young people associated with cannabis use stem directly from the presence of a black market.

It was primarily for this reason that the Victorian Premier’s Drugs Advisory Council (DAC) rejected civil-fine approaches to cannabis control, recommending insyead a system of partial prohibition. 20

Partial Prohibition

As discussed above, a policy of partial prohibition would permit adults to possess up to a certain amount of cannabis and to cultivate up to some number of cannabis plants. Non-profit distribution amongst friends would be permitted, but sale for profit would remain banned.

The DAC appeared to consider partial prohibition as essentially equivalent to "partial regulation":

Council believes that strategies to reduce use and misuse are most likely to be effective if use of cannabis is no longer a criminal offence but is regulated in a number of important respects. Education and treatment will be facilitated by this change and respect for the law may also increase [emphasis supplied].

Recommendation 7.1 Use and possession of a small quantity of marijuana should no longer be an offence. ‘Small quantity’ should be defined as no more than 25 grams (half the amount currently specified in the Act). (Section 3.8).

Recommendation 7.2 Cultivation of up to five cannabis plants per household for personal use should no longer be an offence. ‘Household’ should be defined to exclude everything other than private residences. (Section 3.8) 21

Recommendation 7.3 Sale of marijuana should remain an offence.

Recommendation 7.4 Provision for the Summary Offences Act 1966 should be reviewed to ensure offensive behaviour under the influence of marijuana can be dealt with by police. Similarly, local government should establish bylaws that restrict consumption in public places. Such bylaws would reflect current restrictions on alcohol consumption. (Section 3.8).

Recommendation 7.5 Legislation should be introduced to expunge all recorded convictions for possession and use of small quantities of marijuana. (Section 3.8). 22

Like the DAC, the AIC appeared to favour a policy of partial prohibition in its 1995 report:

Many of the drawbacks associated with any legislation against personal use of cannabis would diminish under a partial prohibition regime. This move would save considerable law enforcement and criminal justice resources. It would avoid confusion about the legal standing of cannabis for personal use and avoid bringing the law into disrepute as a result of being flouted by so many. It would also remove a stigma of criminal (or even civil) convictions by otherwise law-abiding users; it would reduce their contact with criminals; and it would avoid possible discrimination during enforcement of legislation. However, it is likely that a significant proportion of users would continue to buy cannabis on the black market, which may be easier than cultivating their own or simply because they are familiar with doing so. But, this situation might be expected to lessen with the passage of time. In addition, this option would permit educational messages to be more easily communicated, both about the harms associated with use and about ways in which potential harm might be minimised. 23

The extent to which partial prohibition would affect the black market and its associated harms is an important question. Limited data are available concerning the proportion of cannabis users who would elect to "grow their own" or who would procure their supply in the form of non-profit transactions among friends, if such were legal. Experience in Alaska suggests that a substantial black market has persisted despite a policy of partial prohibition. 24 The extent to which this experience is relevant to New Zealand is uncertain. Growing conditions are substantially superior in New Zealand compared to Alaska, and a greater degree of networking might be available for sharing "home-grown" cannabis than in sparsely populated Alaska.

A related concern with respect to the effect of policy changes on the cannabis black market must be raised at this point. The "shadow of illegality" hanging over many rural communities, including (and especially) Maori communities, almost certainly detracts from the well-being of those communities and of the individuals who live in them. Ironically, however, any decrease in the black market produced by home-growing throughout New Zealand might reduce income to communities currently dependent on black-market cannabis commerce. The potential impact on rural income of a regulated approach to cannabis control is discussed in the next section.

One theoretical disadvantage to permitting home cultivation while banning regulated sales could be that some users would be encouraged to consume more cannabis than under a regulated system. This could occur if people who want to try cannabis were to invest considerable time and effort into cultivating a crop, thereby making a larger commitment to that crop and ending up with a much larger supply than they'd have purchased -- possibly for years to come. Admittedly this concern is quite speculative, and it is likely that the AIC is correct in saying (quoted previous page) that many or most users would continue obtaining their supply through the black market.

Limits on Personal Cultivation

Recent governmental reports recommending policies of partial prohibition, including the Victorian Premier’s Drug Advisory Council 25 have advocated limits of five cannabis plants under cultivation and possession of 25 grammes of finished product at a given time.

At the time of this writing (July 1997), the Australian federal government is developing an Australian Model Criminal Code to reconcile substantial differences in criminal law provisions among the nine State and Territorial jurisdictions. As part of this process, the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General has prepared a substantial (411 page) discussion paper 26 which deals primarily with large-scale drug cultivation and trafficking. The Committee is currently seeking submission concerning, among many other issues, the problem of how to define "traffickable quantities" of cannabis.

In preparing to address this issue in a submission on the discussion paper, the Australian Drug Law Reform Foundation (ADLRF) sought input from knowledgeable individuals on the internet concerning this question. This request produced several responses, from which the following three have been selected for quotation: 27

#1. Peter Watney wrote:

> We are hoping that some of you will be able to advise us on quantities of cannabis plants it would be reasonable for a moderate recreational user or a medical user to have in cultivation who cultivated plants purely for his or her own personal use.<

Unfortunately, it's sometimes hard to make such a distinction based solely on the number of plants. For example, some people I know grow 3 or 4 plants in a closet for personal use, letting them get quite big so they produce in total about 1/4 pound. However, others I know that also grow for personal use prefer to grow more plants and keep them smaller; they may grow 20 small plants in a closet, and still end up with around 1/4 pound each time.

If it must be quantified, perhaps 10 or 12 plants would suffice. Most commercial growers plant at least several dozen plants, but usually several hundred or even several thousand.

#2. This is a more difficult question than one might suppose due to all the variables involved. I smoke pot daily for medical reasons and have used recreationally for about 20 years. Because I use medically and recreationally, the line is blurred in my case. Without going into all the variables, something I would be glad to do if it is helpful, 5 plants a year, grown outside, would be a great plenty for me as long as a freezer were available for storage. If grown indoors, 10-15 plants, twice a year, would produce about the same amount of pot. I use 1 to 3 ounces per month, depending on the plant potency and whether I smoke it or make brownies or cookies.

For law enforcement purposes, in a one size fits all bureaucratic model, 5 plants under cultivation at any one time, should work fine and would factor in the growing season. You could get one crop per year outside and 3-4 crops a year inside. The total annual yield would be close to the same in terms of total weight.

#3 I have written two best selling cannabis culture books in Canada, Grow Your Own Stone 1973, and A Treasury of Hashish 1976, as well as acting as director of research and public policy at the Hemp Futures Study Group, established 1978 to help introduce Industrial Hemp into the legal farm menu here in Canada. My ideas are frequently if nefarically sought after by Government and private sector groups hoping to advance Canadian Drug Policies or reform legislation already in place.

In Grow Your Own Stone I prepared and included a mock licence application to obtain a cultivation permit from the Dept. of Health. This was taken very seriously, and thousands of requests arrived at the Health Canada offices. The main point in my application agenda was the idea of a maximum of 8 growing mature female plants....This number is the informal limit that the Canadian police subsequently now use to establish intent when they raid growing marijuana plants and seek convictions for personal cultivation as distinguished from clearly commercial intentions.

I calculated the threshold of 8 plants based upon the reasonable expectation of harvesting about 100 grams of smokable material per plant, for a total of 800 grams....more than enough for a private smoker and their circle of friends, yet not enough to generate a surplus for trafficking. Curiously, a skilled hand can coax more than 800 grams of material, and many people find it more suitable to devote time and space to cultivate about 4 specimen plants, but to do them better service to create somewhat less material, but it is of a more satisfactory quality.

Not everyone is a skilled agronomist, and this model may be considered..

A) A permit holder may purchase, at a registered Government green house up to a maximum of 8 plants grown under secure conditions, from certified varieties of psychoactive strains of Cannabis sativa. These plants may be sold for up to $25 each.... this high initial cost separates the sincere private citizen from the opportunist. Each plant will be affixed with an Identification tag that must not be removed during the time of active growth, and must be retained after harvest for inspection if required.

C) It will remain, strictly forbidden....

- to sell any licenced marijuana

- to provide any licenced marijuana to minors

- to export any licenced marijuana outside the country

- to obtain a permit under false pretences

- to fail to comply to specified standards

- to divert any licenced cannabis material for oily concentrate

- to make clones from licenced plants for illicit propagation.

D. The sale of tagged certified cannabis plants from Government inspected greenhouses will likely generate sufficient revenues to pay for the entire permit programme as well as providing funds to research horticultural and health studies pertaining to the recreational use of the Cannabis plant. Top quality, high yielding potent strains of cannabis, offered by certified government agronomists will soon crowd out the contraband gardens that will not be able to compete with the legal offerings. The rather high initial prices for tagged Govt. specimen plants are necessary to ensure success of the program. As time passes, and the prices can justifiably held at these levels, illicit cultivation will wane as the legal offerings become established as the best buy for the money.... with the added bonus of directing funds to the tax coffers that would otherwise be absorbed by the criminal element.

Despite the apparent consensus among governmental commissions and policy analysts in favour of establishing limits on personal cultivation, potentially serious logistical and philosophical problems would complicate such a policy. Most obviously, how should whatever limits are selected be monitored and enforced? Without resorting to intrusive police tactics, it is likely that the only feasible approach to enforcement would be to foster an ethic in the cannabis-consuming community to the effect that the reformed system of cannabis control deserves loyalty and respect - recognising that the alternative is continued (or re-instated) prohibition. The system would presumably foster the "dobbing in" of cheaters by offended citizens, just as tax cheats might be. Whether such a system of self-enforcement would be effective is uncertain, at best.

In addition, it is not difficult to conceive of problematic situations. For example, an individual who harvested a cannabis crop on behalf of himself and friends might well temporarily possess more than the stipulated limit until s/he distributed the crop amongst the friends. There is also the problem of determining how many plants under cultivation will in fact yield useable cannabis. Only the female plants are generally considered useable, and of these some will fail to mature for a variety of reasons. How many plants in total are needed to ensure five (or whatever number) mature female plants? There are no easy answers to such questions.

A further problem with imposing limits on personal cultivation concerns a fundamental tenet of law involving sale of goods. Uniformly, the passage of goods and the passage of some return value must be proved: A provided 20 widgets to B and B paid A $20 in return. On the other hand, a cannabis law might say that because A has 6 cannabis plants, A intends to sell them for a profit. There is no need to identify or produce B, nor to prove the passage of the goods, payment for the goods, whether there was a profit from the sale, or even that there is an intention to sell. All of these factors are "proven" by the mere existence of (say) 6 plants. This seems problematic. At the least, additional evidence of intent to sell (for profit) would seem necessary before charges would be laid. On the other hand, there is surely some number of plants above which the intent to sell for profit can reasonably be inferred.

It can be seen that the problem of specifying limits on personal cultivation is a significant one for systems of partial prohibition. Similar difficulties arise in the context of a regulated system where personal cultivation is also allowed.

Regulation

As noted above, a regulated system would treat cannabis much like alcohol or tobacco. Growers would be licensed by a cannabis control board, which would also be responsible for taxing, labeling, purity/potency checks, and administering the system. A distribution system similar to cigarettes would carry cannabis into licensed outlets, such as pubs 28
or in adults-only coffeeshops, as in Holland. Advertising would presumably be banned and health warnings placed on the package labels.

The potential of a regulated approach to harness the financial power of cannabis commerce, i.e., through taxes, is an attractive feature. Informal estimates of the value of New Zealand’s cannabis crop exceed $1 billion NZD annually. Although this estimate is probably substantially inflated (especially taking into account the price drops that would result from removal of black market incentives), potential tax revenues would still likely be in the range of tens of millions of dollars per year (assuming a 10-20 percent tax rate). A tax rate would need to be selected that balanced the need to undercut the black market (by keeping taxes relatively low) against society's interest in discouraging excessive cannabis use (by keeping taxes relatively high).29

An example of a regulated system was contained in a recent bill, sponsored by State Leader of the Australian Democrats, Mr Mike Elliott, which was narrowly defeated 11 - 8 on a conscience vote by the Legislative Council in South Australia;

"The cannabis would have been grown under licence, with strict government control. Advertising, pormotion and consumption in ppublic places and its sale to minors would have been banned and purchasers would have been given health information about the drug.

"Mr Elliot said the bill was not about the legalisation of cannabis but its regulated availability. The proposed legislation was in line with recommendations made last July by the Legislative Council's Select Committee on the control and Illegal use of Drugs of Dependence." 30

Probably the greatest advantage of a regulated system is that only via regulation is the black market in cannabis likely to be severely reduced or eliminated. As is often noted, schools are rarely troubled by black marketeers attempting to sell alcohol or tobacco at (or near) schools. This is not to say that gangs and other forms of organised crime would simply disappear, of course, and indeed they would likely turn to other forms of criminal activities to replace the lost revenue in trafficking in cannabis. Nevertheless, young people would in all likelihood be substantially reduced.

A further argument in favour of a regulated approach is that quality and potency can best be controlled through governmental regulation. 31 Moreover, regulation provides Government with substantial control over terms of sale and related activities. 32

Regarding drawbacks to a regulated approach, the 1995 AIC report cautioned that under a regulated system "greater visibility of the drug in retail outlets may act as an effective form of advertising, exposing more people (in particular, more young people) to the temptation to experiment." 33 However, if the sale of cannabis were restricted to adults-only venues (e.g., designated coffee shops) this problem would probably be manageable. Moreover, cannabis is already widely available in schools. It seems unlikely that the availability of cannabis to adults in adult-only venues would substantially increase young people’s propensity to experiment (which is more often due to peer pressure and a desire to demonstrate rebelliousness). 

What impact would a regulated approach have on rural (often Maori) communities? In the previous section it was argued that partial prohibition might reduce income to these communities by virtue of reducing the black market. A regulated system, in contrast, could benefit rural communities insofar as it would cut out much of the profits currently taken by urban distributors, who buy from the farmers in large quantities and sell in the towns and cities in small quantities. 34 A regulated approach might therefore return proportionally more income to the communities. However, if cannabis prices fell substantially below current black-market prices, total community income could remain stable or even drop. 35

There is therefore considerable uncertainty surrounding the question of what impact either partial prohibition or regulation would have on Maori and other rural communities. What is certain is that in a regulated environment these communities would be free of the stigma of criminality associated with a principal farming commodity, and would be able to compete in (what would become) a "white market". Also, the impact on Maori communities of moving away from a policy of total cannabis prohibition depends on much more than economics. In this regard, it is vital that input be obtained from Maori communities concerning the likely effects of various systems of cannabis control on Maori health and well-being. 

The major drawback to a regulated system is likely to be political. No other country has adopted a system in which cannabis is regulated and taxed like alcohol or tobacco; the Netherlands' approach comes closest. Partial prohibition, on the other hand, has been tried with success in other countries. Whether New Zealand’s propensity for social innovation and pragmatism could permit trialing a regulated system of cannabis control as part of a "social experiment" is perhaps unlikely in view its basic conservatism on drug issues.

Personal Cultivation in a Regulated System

If a reglulated system were adopted, should personal-scale cultivation also be permitted? Continued small-scale growing could be viewed as equivalent to"home brew" beer or small-scale wine making. Dale Gieringer has studied this question:

    Experience shows that it is no easy task to track down and regulate marijuana growers. More so than alcohol or tobacco, marijuana lends itself easily to small-scale home cultivation and production. The problem therefore arises as to how to treat home cultivation in the legal market. Clearly, the [for-profit] sale of untaxed home marijuana must be banned. In theory, home cultivation could also be taxed and licensed in order to maintain high prices. However, it seems unlikely that such requirements could be enforced in a world of legalized marijuana. The policing of home growers would appear to require many of the most odious and objectionable techniques of current marijuana enforcement, such as helicopter surveillance, snooping on homes and spying on garden stores. 36

From a practical perspective it is likely that the best approach would be to permit a certain level of personal level cultivation by adults. This raises the question of what limits might be placed on the number of plants one would be permitted to grow, as discussed above.

 


Section 3. International Treaty Considerations

Two international treaties are relevant to the discussion of cannabis policy: the Single Convention on Narcotic Drugs 1961 1 as amended in 1972, and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention).2 As the name of the latter treaty suggests, the Vienna Convention is primarily concerned with international trafficking, whereas the Single Convention restricts the domestic cannabis policy of signatory nations. As such, the Single Convention (to which New Zealand is a signatory) is the primary potential obstacle to changes in domestic cannabis policy.

Article 36 of the Single Convention requires signatory nations to make possession and use of cannabis, 3 "cannabis resin (hashish), and "extracts and tinctures of cannabis" (among other drugs) an offence:

. . . each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally. 4

Use and commerce in drugs covered under the Single Convention are to be restricted to "scientific and medical purposes".

Although this particular clause seems rather black-and-white, the treaty as a whole provides considerable room for varying interpretations. As noted by a 1979 Canadian Department of Justice report

The deliberate vagueness of some critical treaty provisions and the discretion permitted each party allow for a considerable variety of cannabis control regimes. As one official of the United Nations Division of Narcotic Drugs has recently written: "the treaties are much more subtle and flexible than sometimes interpreted." (Noll, 1977:44).5

One major question to be addressed is whether the provisions of the Single Convention concerning cannabis possession are aimed at small-scale personal use or, alternatively, large-scale (even international) trafficking. No less an authority than Adolf Lande, who served as secretary of the UN Permanent Central Narcotics Board and the UN Drug Supervisory Body, and who was also one of the main drafters of the 1961 Convention, wrote that

the term ‘possession’ used in the penal provisions of the Single Convention means only possession for the purpose of illicit traffic. Consequently, unauthorized possession and purchase of narcotic drugs including cannabis for personal consumption need not be treated as punishable offences or as serious offences". 6 

Similarly, the official Commentary on the Single Convention on Narcotic Drugs 1961, prepared by the Office of the UN Secretary General, states that whether personal use of drugs requires imposition of penal sanctions "is a question which may be answered differently in different countries." 7 The same commentary proceeds to note that those nations that do interpret Article 36 as requiring a legal approach to personal use

may undoubtedly choose not to provide for imprisonment of persons found in possession, but to impose only minor penalties such as fines or even censure [since p]ossession of a small quantity of drugs for personal consumption may be held not to be a "serious" offence under article 36 . . . and only a "serious" offence is liable to "adequate punishment particularly by imprisonment or other penalties of deprivation of liberty. 

Further, as noted by Noll, a senior legal officer of the United Nations Division of Narcotic Drugs, the requirement that Parties limit the use of drugs to medical and scientific purposes does not require them to "attain that goal by providing penal sanctions for unauthorized ‘use’ or ‘personal consumption’ of drugs." 8 Noll also points out that the "whole international drug control system envisages in its penal provisions the illicit traffic in drugs; this also holds true for the 1972 Protocol." 9 (Emphasis in original.)

An explanation for the apparent contradiction between these interpretations and the language found in Article 36 (s-para 1-A) is provided by Smith. 10

Governmental commissions on cannabis control have arrived at divergent opinions on the question of whether the Single Convention requires signatory nations to ban personal use of cannabis. The Williams Royal Commission 11 concluded in the affirmative, as did the Canadian LeDain Commission. 12 However, the 1978 Sackville Commission report concluded that

the Convention does not require signatories to make either use or possession for personal use punishable offences, although the creation or retention of such offences would be consistent with the treaty. This is because ‘use’ is not specifically covered by Article 36 and the term ‘possession’ in that Article and elsewhere can be read as confined to possession for the purpose of dealing. 13

Similarly, the U.S. National Commission on Marihuana and Drug Abuse took the view that "the word ‘possession’ in Article 36 refers not to possession for personal use but to possession as a link in illicit trafficking." 14 The Commission concluded that measures such as "an educational program and similar approaches designed to discourage use" could be employed to meet treaty obligations.15

The 1972 Protocol added a second subparagraph (s-para 1(b)) to Article 36, paragraph 1. This provision reads:

Notwithstanding the preceding subparagraph [quote above], when abusers of drugs have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social reintegration. . . . 

The official Commentary emphasises that these alternatives to punishment for the offences listed in Article 36 s-para 1A can be instituted "no matter how serious that offence may be." 16 This provision reinforces the more permissive interpretations of the treaties described above.

The authors of 1994 AIC report appear to take the position that only free availability is ruled out by international treaties,17 permitting both a policy of partial prohibition and a regulated approach. The Victorian Premier’s Drug Advisory Council took the position that partial prohibition was permitted under the treaties, but recommend further study of the matter.

While there are diverging legal opinions about what the conventions require, the Queensland Criminal Justice Commission concluded that legalising possession of cannabis for personal use would be outside convention terms (Criminal Justice Commission, 1994). . . . Another view is that the combined effect of the conventions preclude only one option: legalisation or total deregulation of drugs (Woltring, 1990). . . . Internationally, parties to the conventions have a variety of approaches for dealing with cannabis ranging from 'administrative' decriminalisation in the Netherlands, to decriminalisation at different times in Italy and Spain. 18 Council is not aware that any action has been taken against these regimes. 19

A few other provisions of the Single Convention have received attention in the cannabis policy debate, including paragraph 3 of Article 28, which states that "The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant." 20 Similarly, Article 22 of the Single Convention reads as follows:

In all cases in which, in light of the circumstances prevailing in the country or area of a Party, prohibition of the cultivation of the poppy plant, coca plant or cannabis plant is, in the view of that Party, the most appropriate measure for protecting public health and welfare and to prevent the narcotic substances from finding their way to illicit trafficking, the Party involved can prohibit cultivation.

A reasonable interpretation of these clauses is that if a country decides that a system other than prohibition is most appropriate for protecting public health and welfare and for deterring illicit trafficking, that country is not obligated by virtue of the Single Convention to maintain a prohibition policy. It is for this reason that the Oregon Cannabis Tax Act, a citizen referendum slated for a vote in 1998, makes frequent reference to the fact that the proposed new system of cannabis control (regulated, taxed, and sold through state-run liquor stores) is being put in place for the express purpose of "preventing the misuse of, and illicit traffic in" cannabis. In addition, the text of the Act amply details why prohibition increases both misuse and (almost by definition) illicit traffic.

Along similar lines, Article 2(5) requires that:

(a) A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and

(b) A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials herewith to be conducted under or subject to the direct supervision of the Party.

As noted by the 1994 AIC report, "It must be emphasised, however, that Article 2(5) is not mandatory. Rather, special measures of control can be imposed if, in the opinion of the Party, they are ‘necessary’ or ‘appropriate’."

Our reading of this complicated literature, and of the treaties themselves, leads us to conclude that a policy of partial prohibition, as defined above, would certainly be considered by most authorities as being in compliance with international treaties. On the other hand, a policy of regulated commerce would find less support among a majority of authorities. However, the authoritative interpretations of the Single Convention described above would appear to permit a system of regulation and control.

In particular, if New Zealand were to notify the United Nations that, after careful study, it had determined that a regulated system of cannabis control were necessary to reduce both public harm and illicit trafficking, it seems unlikely that such an announcement would be condemned (except, perhaps, by the United States). To clarify matters, and as permitted by the Single Convention, New Zealand could propose an amendment to the treaty, 21 perhaps along the lines of "Notwithstanding any other provision, a regulated system of domestic cannabis control shall not be deemed impermissible, provided due care is taken to prevent international trafficking."

As described earlier, only regulated commerce in cannabis is likely to substantially reduce or eliminate the black market. Moreover, rural (and perhaps particularly Maori communities) would likely be disadvantaged by partial prohibition. It seems inappropriate for countries to be forced by international treaty to foster black markets within their borders, especially if doing so serves to disadvantage native populations.

Such concerns have been raised increasingly, including by the AIC:

An important question to be answered is whether Australian drug laws, so long dominated and directed by influences beyond our shores, and so little attuned to Australia's own circumstances, should continue to be determined externally. As cautious an inquiry as the Williams Royal Commission commented, in relation to the Single Convention, that the spirit and intention of the treaty was 'a secondary matter in the sense that Australia must first decide what is the correct domestic policy and then shape its international course accordingly' (1980, pC263). 22

Similarly, the Victorian Drugs Advisory Council discussed with concern the restrictions imposed by international treaty restrictions, particularly with respect to cannabis:

In Australia and other countries, there is concern about the impact of the treaties on policy flexibility. The debate on the legal status of cannabis and the most effective way to reduce its use and misuse is perhaps the most visible focus of concern.23

Analogous concerns could be raised in the New Zealand environment. International involvements should not dictate domestic policy.


 

Section 4 Key Issues in Cannabis Control

In this Section we address certain key issues with respect to alternative systems of cannabis control, the ones being (1) specification of a plan for ascertaining the outcomes of a reformed cannabis policy, (2) development of appropriate drug education and of (3) treatment programmes for use within a reformed cannabis policy. These issues are of such substantial complexity that we defer detailed consideration of them here. To a large extent the Drug Policy Forum will depend on recommendations it receives from advisors and submissions in addressing these issues in its final report.

Nevertheless, a few observations can be offered concerning each of these items  

Outcome Assessment

It seems self-evident that any substantial revision in the system of cannabis control should be accompanied by an assessment of important outcomes. These include changes in the extent of use within society of cannabis and other drugs, including cocaine, heroin, tobacco and alcohol. As discussed in Appendix A, there is reason to believe that increased cannabis use could lead to decreased use of these other drugs.

Additional outcome measures would include:

  • number and seriousness of crimes committed due to drugs or black market
  • health care costs attributable to drugs (analysed by drug)
  • treatment rates for various drugs
  • performance in schools, including number of suspensions
  • extent of child and spousal abuse
  • road accident rates
  • costs of police and enforcement

Data concerning these outcomes are likely to be relatively accessible and should be of generally high quality. The scope and methods required for a suitable assessment program are well within the capabilities of contemporary New Zealand researchers. Nevertheless, a considerable effort will be required to obtain these data and considerable care must be devoted to the always challenging process of deriving sound causal inferences. Such an effort should be carefully planned using the combined efforts and resources of several relevant research and governmental bodies.

Education Programmes

It is imperative that appropriate and effective education programmes be developed in conjunction with a reformed cannabis control system. As always, specialised programmes would be needed for different target audiences (e.g., adults, school children). The cornerstone of all programmes would be the provision of accurate information. School-based drug education programs based on harm exaggeration have been shown either to have no effect or to produce a "boomerang effect" by increasing drug use rates in children exposed to these programs compared to those not so exposed. 1 2

Effective education programmes would likely require acknowledgement of the fact that among other innate appetites, people from childhood on seek to alter their normal state of waking consciousness from time to time, and that like all appetites, this one is neither good nor bad, but can be indulged in more or less productive and more or less harmful ways. Drug use is, therefore, a fact of life - although accepting this particular fact and communicating it to children is difficult for many adults. Indeed, the situation is similar to the problems faced when communicating sexual information to children. 

Moving from a "just say no" or a "just be careful" approach to drug education will be seen by many as encouraging youthful drug use. However, a more realistic and honest approach to the whole issue of drug use deserves a try, and is probably essential within the context of a reformed cannabis policy. Such an approach would emphasise the importance of delaying psychoactive drug use until well along in the psychological maturation process, as well as the key tenets of safe and responsible drug use. 

Another key goal of drug education programmes would to facilitate the evolution of appropriate public attitudes regarding the responsible use of cannabis. The 1995 Australian Institute of Criminology report addressed this issue: 

Secondly, society not only defines which substances are illegal, but it also determines in which social situations it is acceptable to partake, how much should be taken, and even the nature of the drug experience itself (that is, the effects on individuals and their behaviour). Thus, new legislation may alter societal definitions of appropriate marijuana use. It may be hypothesised that increased marijuana use in public places, at work, or while driving, may antagonise societal attitudes. Public disapproval of certain types of behaviour may aid the development of safe patterns of use. 

Evidence for the instrumental effect of public values upon marijuana use has been presented in a number of studies. One study found that excessive use of cannabis was regarded among most young people to be unproductive and those who over-indulged were branded ‘druggies’ and ‘vegos’. The consequence of this appeared to be that young cannabis users, who were sensitised to the perceptions of their peers, restricted their levels of use in order to avoid receiving these derogatory labels (Davey 1990, cited in Davey & Dawes 1994). 3 Rather than the commonly perceived notion that drug use among young people is a defiant, non-conformist response to the dominant adult power structure, it would appear that adolescent drug use can be guided and restrained by peers. . . . [R]ealistic information (not scare tactics) about the risks associated with drug use, when communicated by a credible source, can play an important part in reducing demand and, ultimately, in reducing drug use. 4

Thus, the importance of credible and (therefore) effective drug programs is difficult to overstate in the context of a reformed cannabis control system. 

Treatment Programmes

Relatively little is known about the effectiveness of treatment programmes aimed at rehabilitating cannabis users with problems of dependence or harmful use. Certainly effectiveness will depend on voluntary presentation for treatment, as is the case also for alcohol and other drug treatment programmes. Also, treatment programs are likely to be both better attended and more effective outside a prohibition context, as the problematic behaviour is then no longer subject to criminal sanctions or to such substantial stigmatisation. 

The Forum will depend on advice and submissions from experts in this arena to arrive at additional recommendations concerning cannabis treatment programmes in our final report. 

Cannabis and Driving 

Like all other provisions of a cannabis control policy, any restrictions placed on driving after the use of cannabis should be based on evidence. In reviewing the evidence on this topic, we find - somewhat surprisingly - that almost every major study performed in this area has shown that drivers who use cannabis only (i.e., no concomitant alcohol) perform as well or better than "straight" drivers.

In the only study of drivers under actual driving conditions (conducted in Holland), the U.S. Department of Transportation, National Highway Traffic Safety Administration, concluded that:

This program of research has shown that marijuana, when taken alone, produces a moderate degree of driving impairment which is related to the consumed THC dose. The impairment manifests itself mainly in the ability to maintain a steady lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol. Drivers under the influence of marijuana retain insight in their performance and will compensate, where they can, for example, by slowing down or increasing effort. As a consequence, THC's adverse effects on driving performance appear relatively small . . . .Of the many psychotropic drugs, licit and illicit, that are available and used by people who subsequently drive, marijuana may well be among the least harmful. 5

This study represents the "gold standard" study of cannabis effects on driving. All other studies must be based on indirect evidence, including (and especially) determining whether victims of fatal traffic accidents had cannabis in their system. For example, another study by DOT/NHTSA, published in 1992, 6 examined blood samples taken from 1882 drivers killed in car, truck and motorcycle accidents in seven states during 1990-91. Importantly, this was one of the few studies to make a substantial effort to determine whether fatally injured drivers were responsible for the accident. (Studies that fail to do this are of questionable validity.)  

In this study, alcohol was found in 51.5% of the specimens. Just 17.8% showed traces of other drugs; marijuana was a distant second to alcohol at 6.7%, followed by cocaine (5.3%), benzodiazepine tranquilizers (2.9%) and amphetamine (1.9%). Two-thirds of marijuana- and other-drug-using drivers were also positive for alcohol.

The report concluded that alcohol was by far the "dominant problem" in drug-related accidents. A responsibility analysis showed that alcohol-using drivers were conspicuously culpable in fatal accidents, especially at high blood concentrations or in combination with other drugs, including marijuana. However, those who used marijuana alone were found to be if anything less culpable than non-drug-users. The report concluded, "there was no indication that marijuana by itself was a cause of fatal accidents."  

Quoting from the report: 

Evidence of causal contributions of the drugs to the crashes was very limited. . . . In the absence of alcohol, no drug or drug group evidenced a driver responsibility rate significantly different from the drugfree control group. When drugs were combined with alcohol, no drug or drug group exhibited a responsibility rate significantly different from alcohol itself. . . .The THC-only drivers had a responsibility rate below that of the drugfree drivers, as was found previously by Williams and colleagues (1985). While the difference was not statistically significant, there was no indication that cannabis by itself was a cause of fatal crashes. However, the responsibility rate for the alcohol-plus-THC combination was 95%, and the normalized relative risk for the combination was higher than alcohol by itself in the intoxication range. Again, the small numbers of cases and lack of statistical significance justify only the conclusion that the possibility of a cannabis-alcohol additive effect is suggested by the data and it merits further discussion. 7

A similar conclusion was reached in Australia, as reported by the Alcohol and Other Drugs Council in its internet "news of the day" feature: 

The Sydney Morning Herald, 10 May 1996, p3 "Marijuana: it doesn't make a hash of driving"

The Daily Telegraph (Sydney), 10 May 1996, p19 "Safe driving, with cannabis"

Herald Sun (Melbourne), 10 May 1996, p21 "Dope link to road deaths"

 The first two of the above articles both report that forensic scientist, Prof Olaf Drummer, claimed that the combination of drugs and alcohol provided the greatest risk to drivers, but cannabis alone could even be good for driving because, where alcohol tends to make people take more risks on the road, cannabis tends to make people slow down and drive more carefully.

The second and third articles each focused on one of two recent studies examining the issue: a VicRoads study which revealed that cannabis users tended to be aware of the problems the drug caused and to compensate for them and a study of 1000 drivers involved in major road traumas which revealed that drugs could be linked to about 13% of fatal road accidents but that drugs, including marijuana and amphetamines , directly caused only 5% of road deaths and that 9% of drivers were affected by a cocktail of drugs and alcohol. Both these articles also quote suggestions (from AMA federal vice-president, Dr Keith Woollard and from Prof. Drummer) that to be safe it would be better not to use drugs and drive.

 A study performed by the State of Washington 8 found that only about 6 percent of drivers killed in automobile crashes tested positive for marijuana and not also alcohol. This study was conducted for one year from September '92 through August '93. This study is open to varying interpretations depending on one’s estimate of the prevalence of cannabis-positivity in the driving population (and recalling that cannabis can be detected for days or weeks after last use). Based on available statistics, cannabis use among young males who are at highest risk of involvement in automobile crashes is on the order of 30-35 percent, 9 again indicating that cannabis-only drivers were under-represented in this group. In addition, it is highly unlikely that all of the cannabis-positive victims were "high" at the time of the crash.

 Finally, Mason and McBay assessed a series of 600 drivers killed in single-vehicle accidents. 10 These investigators estimated that at most one driver was significantly impaired by cannabis, compared to between 9 and 28 drivers impaired by alcohol and cannabis, and 476 drivers who had blood alcohol concentrations over 0.10 mg/100cc.

 The 1995 AIC report describes additional studies on cannabis and driving, most of which reached similar conclusions:

One study found that some 9 to 16 percent of all fatal accidents involved both THC and alcohol, while only two to four percent showed THC alone, leading to the conclusion that marijuana use by itself was a minor or negligible risk factor in fatal accidents (Gieringer 1988 11). Another study of over one thousand drivers killed in road accidents between 1990 and 1993 in New South Wales, Victoria and Western Australia found that the drivers whose bodies tested positive for cannabis were, in fact, less culpable for the accidents that killed them than those who were drug free (Drummer 1994 12). Other studies, however, have concluded that marijuana does cause a significant increase in fatal accidents, although they also concede that alcohol poses far higher risks (Robertson 1991; cited in ADCA, 1993b 13). 

One possibility of these findings is that, should decriminalisation of cannabis result in the substitution of cannabis for alcohol among those who persist in driving while intoxicated (which could happen given the common - and accurate - perception that alcohol can be readily detected while cannabis cannot), the level of motor vehicle crashes and fatalities may, in fact, decrease, a result consistent with the Australian National Drug Strategy’s objective of harm minimisation. Clearly, the current extent of driving while intoxicated with marijuana and the frequency of related crashes needs to be determined and present campaigns (and public attitudes) directed toward reducing the incidence of drink-driving should be extended to include all psychoactive substances (whether decriminalisation occurs or not). 14

The strength and consistency of this body of evidence is surprising, to say the least. Indeed, on the basis of these studies one could conceivably recommend, as the AIC appears to do, that drivers consider using cannabis (only) as a means to reduce the accident rate! 

Although we certainly do not make such a recommendation, we must nonetheless take account of the evidence. One important conclusion emerging from this evidence, as noted in the 1992 DOT/NHTSA study, the combination of alcohol and cannabis appears to be particularly conducive to the production of fatal accidents. This effect was also observed in, among others, the studies by Gieringer, Williams et al., and Mason and McBay, cited above.  

Accordingly, one might consider a policy in which the consumption of any alcoholic beverages be prohibited if one also consumes cannabis prior to driving. Such a policy might be difficult to enforce, however, in the absence of a test for recent cannabis use. 15 More important and effective would be public education campaigns designed to foster an ethic of "no drinking if you’re toking and driving" (or some such motto). Driving after consuming cannabis alone would be legal, except insofar as impairment is produced. 

In this regard, we believe that laws should address impairment in driving ability per se, rather than chemical tests of body fluids. Such tests of functional impairment are commonly applied by police (although more so in countries other than New Zealand, apparently). Penalties for driving while impaired (regardless of the cause) are already substantial. 16 As such, probably no change is required in the law on this point. 

Other Issues  

A range of additional issues will require clarification, some of which are listed below, including only sketchy suggestions about how they might be addressed.  

Should the policy cover hashish and cannabis oil?  

Experience in The Netherlands has shown that an open market in cannabis products resulted in minimal use of cannabis oil (which is messy and offers no real advantage over medium-high potency cannabis 17). People generally do not wish to "overdo" the cannabis experience.18 These considerations, together with problems of enforcement, lead us to recommend that the revised cannabis law include all forms of cannabis products. An educational campaign would aim to produce a culture that disapproved of the use of more potent forms.19 Like all others, this provision would be revisited after an assessment of the impact of the law change. 

Age limit? 18 for cultivation and use. Make consistent with alcohol laws. 

Where can be smoked? Private homes and adults-only premises where permitted by establishment, e.g. pubs, bars, designated coffee-shops. 

Penalties for unauthorised cultivation, possession, or sale? Sales to minors by adults would be heavily penalised, as would for-profit sale of cannabis outside the regulated system. More minor infringements, such as exceeding the five-plant limit by a plant or two would presumably be treated as a minor offence.  


Appendix A Public Health Impacts of Repeal of Cannabis Prohibition 

As noted in Section 2, one of the principal goals of a reformed cannabis policy is to promote public health. The impact of implementing an alternative policy will depend in substantial part on the extent to which (1) cannabis use is increased, (2) this increased use produces harms, and (3) increased use leads to decreases in the use of (and harms resulting from) alcohol and tobacco.

Considering first the extent to which repeal of prohibition might lead to the increased use of cannabis throughout New Zealand society, it seems likely that at least some people who would not try cannabis while it was illegal would do so it were legal. Of these, some proportion will continue to use over a more or less lengthy period of time, and some further proportion of these users will develop psychological dependence. 1 Further, some people who already use cannabis will use more and for longer periods if legal sanctions on such use were reduced.

So much seems commonsensical, yet evidence in support of these assumptions is hard to find. One of the most complete reviews of the relevant evidence was conducted by the Australian Institute of Criminology in its 1995 report on alternative systems of cannabis control.2

In The Netherlands, where total prohibition is encased in an administrative expediency principle, no significant increases in drug use or changes in patterns of use have been identified (Engelsman 1989;3 van Vliet 1990;4 Wijingaart 1988a, cited in Wardlaw 1992 5), and there may even have been a decline in cannabis use (Reuter 1988 [sic] 6). This option may also lead to users adopting safer methods of consuming cannabis (van Vliet 1990 7; Cohen 1988 8). For instance, when restrictions are removed from the sale of water pipes, fewer users consume cannabis in cigarette papers, which is the form of consumption most damaging to the lungs (Kleiman & Saiger 1989-90 9; Reuter 1987 10). . . . 

In South Australia, where possession and cultivation of small quantities of cannabis for personal use are dealt with by civil sanctions rather than criminal ones, the data do not indicate increases in cannabis use (Sarre, Sutton & Pulsford 1989 11; Christie 1991 12; Donnelly, Hall & Christie in press). NCADA Australian household drug use survey data covering the period 1985 to 1993 indicate that, although there have been increases in self-reported cannabis use in South Australia, similar increases occurred in other states where there have been no changes in the legal status of personal cannabis use. Thus, increases in cannabis use in South Australia cannot be attributed to the effects of the legislative changes there. . . . 

In the United States, where eleven states decriminalised the use of marijuana during the 1970s, either no significant increases in marijuana use were detected after decriminalisation (Oregon: Carr 1975 13; Nebraska: Suggs 1981 14) or, where increases did occur, they were no greater than those which arose in states in which no changes in cannabis legislation had taken place (Johnston et al. 1981 15; Vallance 1993 16). Thus, any increases in marijuana use rates that did occur could not be attributed to the change in the law. . . . 

Australian survey results. . . reveal that many people, in the states where expiation notice schemes have been introduced, erroneously believed that the laws on cannabis had been revoked completely. For example, McGeorge (1994) 17 found that 31 per cent of ACT university students sampled incorrectly believe that it is not an offence to possess cannabis in the ACT, compared with five per cent of the Melbourne students sampled. Bowman & Sanson-Fisher (1994) 18 made similar observations in their national overview. 

A similar situation arose in California in the 1970s after the relaxing of that state's laws towards marijuana. Despite a media campaign to inform the public that the drug had not been legalised, more than one in four respondents believed that legalisation had taken place (Budman 1977) 19. If there is a widespread misunderstanding surrounding the legal status of cannabis, it is remarkably encouraging that the extent of cannabis use has remained relatively constant. . . . 

The important point is that cannabis legislation does not seem to impact upon cannabis consumption in any noticeable way. A survey of drug use trends in Europe revealed that cannabis use has been declining since the early to mid-1970s, and seems unrelated to the type of control regime in place in specific countries (Reuband 1991). 20 North American research also demonstrates fairly conclusively that legal sanctions do not deter or inhibit future illegal drug usage (Walters 1994).21 In Canada, a study of first-time offenders who were awaiting hearings for cannabis possession revealed that 89 per cent expected to continue using marijuana despite the legal trouble they were facing (Erickson 1980).22 

Thus, the international literature does not support the claim that repeal of cannabis prohibition will substantially increase cannabis use in New Zealand.  

What about the impact of cannabis law liberalisation on use by teenagers, in particular?  

The AIC discussed the possible impact of normalising adult cannabis use on encouraging use among young people: 

As mentioned previously, controls against the use of cannabis by young people may be implemented (with or without decriminalisation) but they are unlikely to be able to prevent children's access to these substances completely. Should decriminalisation occur, it is also possible that accessibility to cannabis by young people would increase. In addition to this, it is possible that decriminalisation would result in a greater risk of children being exposed to cannabis use through adult role models (Kleiman & Saiger 1989-90) 23. Currently, it seems reasonable to assume that marijuana smoking is a fairly clandestine activity, not normally witnessed by children. But should changes to legislation make it more acceptable, the act of using marijuana may become less taboo and no longer be concealed from younger family members. 24

On the other hand, what actual evidence exists is encouraging. As noted in Section 2 of the discussion paper, The Netherlands’ government has addressed this issue: 25 

In recent years [cannabis] use has once again been considerably higher in other countries (including the United States) than in the Netherlands. This is also true as far as use among minors is concerned. The decriminalisation which took place in the 1970s did not lead to an increase in the use of soft drugs among young people then either. The Dutch objective of protecting young adults who wish to use soft drugs at a certain stage in their lives from the world of hard drugs has also proved to be a realistic one. Only a very small proportion of the young people who use soft drugs make the transition to hard drugs.

Further, according to Dr John Morgan and Professor Lynn Zimmer,  

Despite easy availability, marijuana prevalence among 12 to 18 year olds in Holland is only 13.6 percent -- well below the 38 percent use-rate for American high school seniors. . . . Whereas approximately 16 percent of youthful marijuana users in the U.S. have tried cocaine, the comparable figure for Dutch youth is 1.8 percent. Indeed, Holland's policy of allowing marijuana to be purchased openly in government-regulated "coffee shops" was designed specifically to separate young marijuana users from illegal markets where heroin and cocaine are sold. 26

This latter observation also provides evidence against the claim that cannabis use in itself tends to promote the subsequent use of heroin or cocaine. 

Another reason why teenage use of cannabis is unlikely to increase substantially following repeal of total prohibition is that, unlike many adults, young people typically have ready access to cannabis at schools. Thus, it is likely that teenagers who wish to use are already using. Because any change in the cannabis law would pertain only adults (supplying cannabis to minors would remain an offence), it seems unlikely that teen use would increase under such a system. Moreover, removing the aura of total prohibition will reduce the glamourous appeal of cannabis to young people.27 

This substantial body of evidence notwithstanding, let us assume that cannabis use were to rise substantially following repeal of prohibition. What health effects might follow?  

Health Effects 

The scientific literature on the health effects of cannabis is enormous, and cannot be reviewed here in any detail. Instead, we again cite from the 1995 Australian Institute of Criminology report, 28 which in turn refers to a report prepared by the National Centre for Drug and Alcohol Research (NDARC) at the University of New South Wales: 

The health consequences of cannabis use have been extensively studied. A contemporary review was conducted for the National Task Force on Cannabis;29 this review is now accepted internationally as the most credible summary of current knowledge. . . . A central conclusion which may be drawn from the review is that, although adverse impacts on health and psychological functioning certainly result from cannabis consumption, those impacts are not so serious as to justify (on their own) the total prohibition of the drug. 

A recent report on cannabis prepared by the New Zealand Ministry of Health also relied heavily on the NDARC report in assessing health effects. The report concluded:

      Overall, the current public health risks of cannabis use are small to moderate in size, and are significantly less than the public health risks of tobacco and alcohol. However . . . if there were a significant increase in the number of long-term cannabis users . . . the assessment of the public health importance of cannabis use would increase. 30

Our reading of the literature on cannabis and health leads us to conclude that cannabis appears to be relatively harmless for about 90 percent of the people who use it (including young people, most of whom use only transiently). The remaining 10 percent of users will experience a variety of mostly (but not entirely) reversible problems with short-term memory, worsening of pre-existing psychological problems, compulsive use, or respiratory difficulties due to smoking.31 For the most part, those people who experience substantial problems of dependence and excessive use probably have difficulty with impulse control in general.  

It is widely accepted in the research community that the adverse health effects of cannabis, while real, are substantially less severe than those associated with excessive alcohol and tobacco.32 Two recent studies tend to confirm this view. In the first of these, conducted by the National Drug and Alcohol Research Centre at the University of New South Wales, investigators interviewed 268 cannabis smokers and 31 non-using partners and family members. The researchers concluded that the health of long-term marijuana users is virtually no different from that of the general population. 33

A much larger American study examining ten years of mortality data for over 65,000 men and women found no statistically significant association between marijuana smoking and death.34 The study's statistical methodology controlled for the use of tobacco and alcohol so that deaths from marijuana smoking could be clearly identified. 

The above research evidence notwithstanding, the Forum trustees understand that many people, and young people in particular, have been harmed by excessive or harmful cannabis use. We do not believe that cannabis is completely safe, of course - far from it. In the final analysis, however, the health effects of cannabis - however one might view them - are largely irrelevant to the problem of deciding which cannabis control policy to adopt. Indeed, the more harmful we judge cannabis to be, the more important it is to exercise control over its distribution. Such control cannot be exercised in a prohibition environment, which in effect abdicates control to the black market.  

Alcohol/Tobacco Substitution Effects 

Finally, the public health impact of increased cannabis use cannot be considered in isolation from the effect such an increase would have on the associated use rates of (and harm from) other drugs, particularly alcohol and tobacco. In fact, there is evidence that cannabis can serve as a substitute for both of these latter drugs. 

With respect to alcohol, a consistent finding in field research of cannabis use is the tendency of many cannabis users to decrease their alcohol intake when cannabis is available, and to increase alcohol use when cannabis is unavailable. This was a significant finding of Rev McFerran’s during his extensive field work in New Zealand during the early 1970’s.

      When the observer first entered into the marihuana social networks in the auckland area, he found that among those whom he initially contacted this was the case. There were actually users of marihuana who had ceased using alcohol at that time. One heard alcohol being described as an aggressive, sordid and unpleasant drug and used only to acquire an ego trip. However, as the study progressed it became apparent that the use of alcohol and marihuana are not necessarily exclusive although a marked change in attitude by marihuana users to alcohol developed.

      When enquiry was made regarding the informants' attitude to alcohol, none were strongly favourable to ists use, either before or after the commencement of marihuana use. Yet there was an extreme shift in attitude away from alcohol . . .

      The study shows that slightly less than half of those who were formerly favourable to alcohol use moved to an unfavourable attitude after using marihuana. Half of those who had been uncertain decided either for or against. More than four times as many informants became favourable and twice as many became strongly unfavourable in the attitude held about alcohol prior to using marihuana. -The comments of informants followed the theme that marihuana was preferable to alcohol. 35

Alcohol was still used by many cannabis users, but to a more restrained and controlled extent:

      There is a decided move away from alcohol use as the general or necessary social lubricant, but with most users it still has its place. Of the 160 informants 153 (96%) of them had used alcohol prior to marihuana . . . 36 Asked how they rated their personal use of alcohol, not one of the informants felt that they presently had a problem associated with alcohol . . . Alcohol for some marihuana users is the alternative drug when marihuana supplies become limited. 37

Similar observations were made in a more recent study of cannabis use in Maori communities in the far north. The report notes that many Maori use cannabis to decrease their alcohol intake, and that this substitution is considered desirable:  

Many people prefer to smoke a couple of joints before going out to the pub so they need only have one or two drinks, making it a cheaper option than buying alcohol all night. . . .  

Many people surveyed felt strongly that alcohol was more dangerous than marijuana, ‘I think alcohol has killed and hurt more people than marijuana, that it is responsible for road deaths, behavioural changes, domestic violence, depression and aggression. Many users justified their use of cannabis alone, believing that it has no harmful effects to either their health or their behaviour. ‘I get totally out of control on alcohol whereas smoking makes me passive. . .’ 

Although many reports about cannabis use discuss the detrimental effects cannabis has on drivers, 38 this report could uncover no anecdotal or written evidence to substantiate this. This may be due to a further lack of understanding regarding such dangers. Certainly many people in the survey cited alcohol as being a ‘killer on the roads’, while no one identified cannabis as having the same risk. 39

There is additional research evidence for a cannabis-alcohol substitution effect.40 41 For example, researcher Karyn Model examined the impact of substituting civil penalties for criminal sanctions for cannabis possession on hospital emergency room admissions for drug abuse in the mid-1970's. 42 As the substitution hypothesis would suggest, emergency room episodes related to drugs other than cannabis were 12 percent lower in the states that had decriminalized. Lowering the effective "price" of cannabis appeared to reduce the harmful use of other substances. The data did not permit the isolation of alcohol emergencies from those caused by the use of heroin, cocaine or prescription drugs. But based on previous research Model concluded that alcohol was far and away the most likely drug replaced by cannabis.  

This finding was reported in the New York Times:43

Drug policy is grounded on the premise that illicit drugs are birds of a feather -- that reducing the availability of one decreases the consumption of others. But economists who measure the demand for illicit substances . . . challenge this conventional wisdom. Their identification of a strong substitution effect between marijuana and alcohol suggests that the full court press against the weed is partly responsible for stubbornly high levels of binge drinking by teenagers. . . . 

To those who focus on the risk of accidental injury and other medical crises, heavy drinking seems a more serious worry than marijuana. Ms. Model found that other factors equal, states decriminalizing marijuana reported lower overall rates of drug- and alcohol-related emergencies. 

And while both substances have been implicated in auto accidents, Frank Chaloupka, an economist at the Chicago campus of the University of Illinois, believes that substitution toward marijuana is, on balance, a life saver. In a statistical analysis that parallels Ms. Model’s, he found that states without criminal sanctions against marijuana possession suffered fewer auto fatalities. 

This latter finding is congruent with most of the studies cited in Section 4 concerning cannabis and driving. Finally, it has been reported anecdotally that cannabis can be used therapeutically to assist alcoholics in reducing or eliminating alcohol intake. 44 

The substitution of cannabis for alcohol would be particularly beneficial from the perspective of violence and violent crime. As noted by the U.S. National Commission on Marihuana and Drug Abuse in its report, Marihuana: A Signal of Misunderstanding45

In sum, the weight of the evidence is that marihuana does not cause violent or aggressive behavior, if anything, marihuana generally serves to inhibit the expression of such behavior. Marihuana-induced relaxation of inhibitions is not ordinarily accompanied by an exaggeration of aggressive tendencies. no evidence exists that marihuana use will cause or lead to the commission of violent or aggressive behavior by the large majority of psychologically and socially mature individuals in the general population. 

More recently, the 1994 NDARC report concluded that cannabis "appears to play little role in injuries caused by violence." 46

The mainstream scientific community has long accepted that of all drugs, only alcohol has a consistent causal role in producing violent behaviour. For example,  

Of all psychoactive substances alcohol is the only one whose consumption has been shown to commonly increase aggression. After large doses of amphetamines, cocaine, LSD, and PCP, certain individuals may experience violent outbursts, probably because of preexisting psychosis. 47

With respect to a possible salutary effect of cannabis use on tobacco use and related harm, two recent studies from the UCLA School of Medicine are of interest. Both studies were headed by Dr. Donald Tashkin, one of America's foremost experts on marijuana smoking and lung function. In the first, 48 a total of 394 young men and women participated in the study. Researchers classified 131 of the participants as heavy cannabis smokers who did not smoke tobacco cigarettes, while 112 smoked both tobacco and cannabis. An additional 65 men regularly smoked tobacco only and the remaining 86 participants were non-smokers. All participants were screened for pre-existing chronic chest diseases and found to be healthy upon entering the study. 

Each participant underwent pulmonary function testing at the start of the study, and again on multiple occasions over the course of the next eight years. During that interval, a number of patients were lost to follow up, but 255 participants (65 percent) completed the study and were tested again at up to six additional sessions.  

The authors concluded:  

Findings from the present long-term, follow-up study of heavy, habitual marijuana smokers argue against the concept that continuing heavy use of marijuana is a significant risk factor for the development of [chronic lung disease]. Neither the continuing nor the intermittent marijuana smokers exhibited any significantly different rates of decline in [lung function] as compared with those individuals who never smoked marijuana. . . . No differences were noted between even quite heavy marijuana smoking and non-smoking of marijuana.  

These findings were in stark contrast to those experienced by tobacco-only smokers, who suffered a significant rate of decline in lung function. The study also found that people who smoked both cannabis and tobacco did not suffer any faster rate of decline in lung function than individuals who smoked cannabis alone. This is finding implies that cannabis might actually protect against some of the detrimental effects of tobacco smoking. 

This latter conclusion was reinforced by the second, more recent UCLA study,49 which showed that people who smoke both tobacco and cannabis consume 50 percent less tobacco over their lifetime and fifty percent less on a daily basis than tobacco-only smokers. Note, however, that in analysing these studies it is important to consider possible alternative causal explanations for the observed findings. For example, if say cannabis smokers are on average better-educated, and if better-educated tobacco smokers tend to smoke less tobacco, then one would find a measurable, but spurious, negative correlation between cannabis and tobacco. The UCLA results show that tobacco smokers who also smoke cannabis smoke less tobacco than tobacco smokers who don't smoke cannabis. But this doesn’t show that, e.g., inducing a tobacco smoker to start smoking cannabis will reduce that person's tobacco consumption. 50

This caveat notwithstanding, the findings summarised above indicate that any increased use of cannabis as a result of liberalising cannabis laws is likely to produce off-setting benefits in terms of reduced use of (and harm from) the more intrinsically harmful substances, alcohol and tobacco. 

In summary, the substantial weight of evidence indicates that the repeal of cannabis prohibition (1) would likely result in only a minor increase in use, (2) that such increased use would be largely concentrated among adults and (3) would not have significant negative health effects, in part because cannabis is intrinsically a relatively benign substance for most people, and in part because any increase in cannabis use would likely be accompanied by a concomitant decrease in alcohol and tobacco use. The net effect of this scenario on public health would, if anything, be mildly positive.


Appendix B Toward a Smarter Policy 

As an American physician who has lived and worked in Wellington for three years, I have come to appreciate the common sense and maturity of New Zealand society. The United States often falls short in comparison, I’m afraid. 

A striking example of this disparity is that Kiwis are permitted to buy codeine-containing medicines without a doctor’s prescription, even though codeine is a narcotic - chemically related to heroin and carrying similar risks, including the possibility of addiction. These risks are communicated to adult users, who are credited with sufficient good judgement to use the drug safely. The fact that a few people purposely abuse codeine (as by making ‘homebake’) is not considered sufficient reason to keep this useful drug away from the rest of us. 

Such a policy would not be acceptable in the United States, where codeine is available only on prescription. Indeed, anyone suggesting codeine be sold over the counter would be labeled ‘soft on drugs’. I can hear it now: "What?! Make codeine more available?! But that would send the wrong message to America’s youth - that it’s all right to take drugs. We can’t have that!" 

Fortunately, New Zealanders are far too sensible for such foolishness. 

But now we are faced with a riddle. Why would a society mature enough to buy and sell codeine over the counter embrace American-style prohibition policies towards cannabis? 

Consider the following facts: 

  • According to a recent University of Otago study, more than half of all 21-year-olds use cannabis, exposing at a glance the futility and hypocrisy of prohibition. 
  • Based on an extensive medical literature (and on my own experience as an emergency room physician), cannabis is far less hazardous than alcohol or tobacco - or codeine. True, a small proportion of users will experience problems, including psychological dependence, but often these are the same people who have trouble with alcohol and with self-control in general. 
  • The lucrative black market created by prohibition guarantees that cannabis will be more available to school children than even alcohol or tobacco. Prohibition abdicates control of supply and distribution to criminals, gangs - and teenagers. 
  • By transforming drug-taking into criminal behaviour, prohibition discourages personal responsibility and impedes the prevention and treatment of drug-related problems. 
  • Police search-and-destroy operations cannot substantially affect cannabis supplies, as acknowledged by police commissioner Peter Doone shortly after the recent big bust near Wanganui. 
  • Cannabis law enforcement has been responsible for hundreds of cases of police perjury since 1976 (Dominion 31.5.96), staining an otherwise remarkably pristine force. 

In view of these facts, why would a pragmatic and sensible society cling to such a counterproductive policy? 

Part of the explanation lies, I believe, in New Zealand’s geographical isolation, which makes it vulnerable to parochialism when international events are not fully reported by news media. 

For example, most Kiwis are probably unfamiliar with the following recent events: 

  • Luxembourg's parliament adopted a motion urging the Government to open talks with Belgium and the Netherlands on a three-nation Benelux zone where cannabis can be smoked freely. 
  • In Spain, where adults are already permitted to smoke cannabis, a high-level court ruled they may also cultivate cannabis for personal use. 
  • California and Arizona legalised cannabis for medical purposes, and South Australia is actively considering such a move (Advertiser 15.3.97). 
  • The Victorian Premier’s Drug Advisory Council recommended that adults be permitted to cultivate up to five cannabis plants (to order to reduce or eliminate the black market). 
  • The new police commissioner of New South Wales, Peter Ryan, recommended legalising cannabis (Daily Telegraph 22.2.97). The NSW director of public prosecution, Nicholas Cowdrey QC, supported Ryan’s call, saying, "I think that when a regime is shown not to be working we should examine it very carefully and work out whether or not there is a better regime that should be in place." 

These items (and others like them) have not been widely reported in New Zealand. As a result, Kiwis are largely unaware of the world-wide trend toward smarter cannabis policies - including regulation and taxation. 

International experience also serves to allay two widely held fears concerning liberalisation of cannabis policy. First, evidence from Australia, Europe, and the U.S. has shown that making cannabis more available does not necessarily result in increased use. Indeed, teenage use tends to decline when cannabis loses its ‘forbidden fruit’ or ‘rebel’ status. 

Second, use of cannabis does not lead to hard drugs. In fact, when access to cannabis is relaxed, use of hard drugs is reduced. This has been shown most clearly in Holland, where cannabis is available to anyone aged 16 and older. Use of hard drugs in Holland is among the lowest in Europe (much lower than in zero-tolerance France). 

A second explanation for New Zealand’s counterproductive cannabis policy is that the issue has been captured by self-styled (but often unqualified) ‘experts’, who are quick to disparage those who would promote debate. Too often, anyone brave (or foolish) enough to suggest a re-think on cannabis policy is condemned - even branded a drug user. 

For this reason, most scientists and (real) experts have excused themselves from the debate, ensuring perpetuation of policies based solely on emotionalism and rhetoric. As such, New Zealand’s cannabis policy stands as a major exception to the widely accepted principle of evidence-based policy making. 

Albert Einstein once observed that insanity consists of doing the same thing over and over and expecting a different result. It’s time to abandon failed prohibition policies and adopt something sensible that can actually work. 

A society that can handle codeine over the counter can learn to live with cannabis. 

David Hadorn, MD

Originally published in The Dominion (Wellington) 17 April 1997, p.9.


Appendix C Why Cannabis Laws Should Be Relaxed

The Liquor Review Advisory Committee recently recommended relaxing the rules on when and where alcoholic beverages can be sold, and to whom. These recommendations have been generally embraced by MPs and are likely to be implemented next year. 

Although few commentators have been indelicate enough to say so, the central arguments advanced for relaxing restrictions on alcohol apply equally well to cannabis. 

For example, one common argument is that increased availability does not generally lead to increased consumption. In the case of alcohol, the marked liberalisation of availability entailed by the Sale of Liquor Act 1989 has been followed by a decline in total alcohol consumption. 

Similarly, when cannabis laws have been relaxed in the United States, Holland, and Australia, consumption has remained steady--or, in the case of teenage use, declined. 

It is argued that harm is minimised when adult use is treated as normal. As stated by Hamish Riach, chief of the Beer, Wine and Spirits Council, the "mature attitude" toward alcohol use entails "treating alcohol as normal and not trying to create a mystique and specialness . . . Rather than preach ‘though shalt not’, the harm minimisation approach focuses on reducing the harms that may result from drinking, not on whether drinking is right or wrong." Clearly the same message can be applied to cannabis. 

A further argument is that widespread disobedience of the law creates disrespect for all laws. The near ubiquity and general acceptance of 18-year-olds drinking alcohol mocks the current law. Similarly, a recent University of Otago survey found that more than half of 21-year-olds use cannabis. Clearly the cannabis law is also widely flouted. 

We are told that we should concentrate on the abuser of alcohol, not the user. Rather than making life difficult for the majority of consumers who use alcohol responsibly, we should focus our attention on those who endanger society as a result of misuse. Again, the same reasoning can be applied to cannabis. 

Shouldn’t what’s sauce for the goose be sauce for the gander? 

It might be argued that alcohol is too much a part of our culture to prohibit, whereas cannabis is not. But the personal and social use of cannabis has been ingrained in New Zealand society since at least the 1960’s. We must accept this is not going to change. 

Alternatively, one could deny a link between alcohol and cannabis policy by claiming "we already have enough trouble with alcohol; we mustn’t legalise cannabis". But legal or not, cannabis is already here. 

Moreover, and as with alcohol, most people who want to use cannabis are likely already doing so, including teenagers. The prohibition law doesn’t deter use--it just gets in the way of educational and public health attempts to reduce harm. 

Finally, it is sometimes claimed that legalising cannabis would "send the wrong message--that cannabis is OK". But society doesn’t endorse alcohol or tobacco by declining to prohibit their use. Rather, we recognise that the harm caused by black markets and by driving use underground would exceed the harm produced by the substances themselves. 

And we accept that public attitudes, education and public health measures are more effective than the criminal justice system in dealing with harmful drug use. This is why cigarette smoking has declined. Thus, the message conveyed by normalising cannabis would simply be that we value consistent and pragmatic policies, and reject those that have proved futile and counterproductive. 

Note that none of the arguments for liberalising cannabis policy depend on the extent of any damaging health effects produced by cannabis. Indeed, the more damaging we judge cannabis to be, the more important it is to control and regulate the stuff--rather than abdicating its control to criminals and gangs, as we have done. 

In view of the above considerations, the Government should be prodded into changing the cannabis law next year at the same time it modifies the alcohol law. This is a splendid opportunity for MPs to exercise consistency and rationality and a little courage. 

The fact that next year is the middle year of Parliament’s three-year term helps; politicians are braver when not facing first-year scrutiny or re-election. 

What should a new cannabis law look like? Several alternative models of regulation and control have been developed around the world. In Holland, cannabis has been sold through a licensed ‘coffee shops’ since 1976. Regulated systems of cultivation and distribution are emerging in California following that State’s legalisation of cannabis as medicine last November. 

The Victorian Premier’s Drug Advisory Council recommended in March 1996 that adult households be permitted to grow a few cannabis plants for personal use. Critically, each of these approaches substantially reduces or eliminates the black market in cannabis, unlike simple ‘decriminalisation’ approaches (such as instant fines). 

A workable system of cannabis regulation and control can surely be identified for New Zealand. Such a system would need to take into account the likely effects of law changes on Maori communities, the ease with which cannabis can be grown almost anywhere in the country, and other New Zealand-specific considerations. In addition, programmes to reduce harmful use and to evaluate the impact of the law change should be built into the system. 

Over the next several months the Drug Policy Forum will consult a wide range of individuals and organisations in an attempt to design a rational and evidence-based system of cannabis regulation and control that makes sense for New Zealand. 

We will work with both national and international experts, and submit our initial findings to peer review and public scrutiny before submitting a final report early next year. 

David Hadorn, MD

Originally published in the New Zealand Herald, 8 May 1997, p.A17.

Publixhed with permission.


Appendix D Drugs and the Law in New Zealand

 Drugs and the law in New Zealand-1

Up to the 1940s it was easy to describe the drug scene in New Zealand because hardly any drugs apart from alcohol and tobacco were then being taken for non-medical reasons.

Some which have since become notorious had yet to be discovered and most of the others would have been almost unobtainable by anyone outside the health professions.

Over quite a long period the number of New Zealanders known to be dependent on opiates was not much above a hundred, most of them being doctors and nurses. There were few legal measures to restrict the misuse of drugs. Up to 1910 even opium could be lawfully purchased and smoked. However controls were tightened substantially by the Dangerous Drugs Act 1927.

The situation changed after World War 2 so much so that in 1968 the Minister of Health (Mr D N. McKay) had a committee set up to inquire into and report on drug dependency and drug abuse in New Zealand. This Board of Health committee is often referred to as the Blake-Palmer Committee because it was chaired by Dr Geoffrey Blake-Palmer deputy director-general of health. I was put on it to represent the Otago Medical School.

We produced an interim report in 1970 and our major report in 1973. Almost all our recommendations were adopted. For instance we brought about the placing of controlled drugs into schedules which broadly indicate their potential for harm.

That enabled judges to deal more leniently with possession and use of cannabis than had been possible with a Narcotics Act which made no distinction between marijuana and heroin. Nevertheless the legal situation still needs some substantial reforms.

ANOMALIES IN THE LAW

My concern with the basis of legislation intended to curtail drug abuse was rekindled when I was engaged as an expert witness in several cases in which the accused was charged with taking LSD. It disturbed me that the verdict depended upon whether the drug which had produced the intoxication was scheduled. Why should behaviour be treated as heinous if caused by LSD yet have to be exonerated if caused by datura or some other unscheduled drug?

Glue sniffing raises similar problems. Like other members of the Toxic Substances Board, I have found it impossible to suggest reasonable regulations for dealing with the situation at least so long as they are aimed chiefly against possession of specified substances.

There is a simple reason for this: some of the substances used by sniffers are important articles of commerce e.g. petrol. Here too it would help if the basic defence were one which did not have to involve taking something listed in a set of regulations

There is one obvious reason for the imperfect state of the law. Anyone who studies the history of legislation on drug abuse is bound to note a recurring theme: a new drug is introduced; its potential for harm is at first sorely under-estimated (as with heroin cocaine LSD the amphetamines the diazepines); then there is widespread trouble, perhaps a panic, and attempts to deal with a situation which seems to be getting out of control.

For instance this led for a period in New Zealand to such drugs as cocaine and mescaline being declared to be narcotics so that persons who took them could be subject to the legal sanctions imposed by the Narcotics Act 1965 and its amendments. Since it is much easier to modify an existing Act than to create a new one such procedures can be justified at least in the short term. Unfortunately. the situation has been exacerbated by the misconceptions of many of those who influence the law-making process.

ROLE OF THE DRUG

Even today many people over-estimate the importance of particular drugs in the development of drug abuse and drug dependence. Drugs are the proximate cause of drug abuse just as motor vehicles are the proximate cause of accidents on the highway. However dealing with drug abuse by concentrating attention on particular drugs is hardly more commendable than trying to reduce the road toll mainly by outlawing the use of some sorts of motor vehicle.

That is not to suggest that we should dispense with warrants of fitness. What I am asserting rather is that the roadworthiness of motor vehicles is but one of the many factors which we must take into account when trying to reduce the carnage on our highways. Drug abuse provides a similar complex situation.

What happens depends not only upon the properties of a drug which may be subject to abuse but also upon such factors as the personality and social environment of the potential user. For example we do not all become smokers and alcoholics despite the availability and addictiveness of tobacco and alcohol.

But how about heroin? During the Vietnam War several observers were appalled to discover the high incidence of heroin usage by American servicemen. They feared that the situation in the United States would become far worse when the troops returned. Yet this did not happen. Presumably some of the factors responsible for high heroin usage during the war were less important subsequently.

A related misconception is that alcohol and tobacco produce much less serious harm than do such drugs as heroin and cocaine. Many people do not even think of them as drugs. Yet alcohol and tobacco produce far more harm in New Zealand than do all other drugs of abuse put together.

Until recently few persons other than the victims appreciated the addictiveness of tobacco. I can recall friends, some of them physicians who were well informed about the harmful effects of tobacco, paying with their lives for their dependence on it.

LEGAL SANCTIONS

Another important misconception is that legal measures produce the best means of dealing with drug abuse and drug dependency. Among the disadvantages of using the criminal law to help control the non-medical use of drugs are the high costs associated with detecting trying and punishing offenders. There is the cost to the serious offender of a partly ruined life. There may also be a cost to the law itself if particular laws fail to command the respect of many reasonable people, especially if it becomes obvious that these laws are not being uniformly enforced.

NON-LEGAL SANCTIONS

By the time we wrote our final report all members of the Board of Health committee were firmly committed to the view that the law should be regarded not as the first line of defence against harm, but rather as the last resort setting the limits within which other and preferably positive sanctions should be brought into play.

Our recommendations for action in the fields of control, treatment and research were based upon the belief that these measures would not eliminate - and might not even substantially reduce-the incidence of drug dependency and drug abuse unless they were accompanied on the one hand by appropriate action to alleviate as far as possible the conditions which lead some people to misuse drugs and on the other by a well-planned and active programme of drug education.

Although that may have seemed unrealistic 20 odd years ago our trust in the power of non-legal measures has been clearly vindicated in the case of tobacco. From a legal viewpoint little has changed other than by way of restrictions on advertising. Yet there has been a huge swing in public opinion leading to a substantial decline in tobacco smoking, presumably because of acceptance of the belief that this habit is both self-destructive and anti-social.

PROHIBITION

Despite the fact that tobacco has provided far worse health problems in New Zealand than any other drug taken for non-medical reasons, I am opposed to the legal banning of tobacco. Consider what happened in the US during the prohibition era. Contrary to what is often asserted there was a considerable fall in the consumption of alcohol and in such related ills as cirrhosis of the liver. However this was more than offset by undesirable consequences. Organised crime was given a powerful boost. Moreover, drinking was glamorised because of the risk associated with a pleasurable but illegal activity.

One good reason for not banning tobacco is providing the right motivation for not smoking it. If tobacco use comes to be widely regarded in much the same light as spitting or defecating in public, then its rapid decline will be all the more assured.

There is a range of options between prohibition and open slather. The best may involve inter alia restricting the availability of a drug by permitting its legal supply under conditions which heavily discourage its use. I shall pursue this notion later

Drugs and the law in New Zealand-2

If our laws dealing with drug abuse were reasonably effective the only commendable changes would be ones dealing with anomalies like those which I mentioned previously.

As the Americans say, If It ain't broke don't fix it. Unfortunately the present situation does need a lot of fixing. For example there is now a criminal cannabis industry comparable to that established by bootleggers during the prohibition era in the United States.

In these circumstances it is only to be expected that many New Zealanders favour a get tough attitude So do I, provided that it is based on knowledge and not on ignorance and humbug. We do have much of the requisite knowledge because the drugs which cause the most trouble have long been with us.

It Is highly Important to take account of alcohol and tobacco in any discussion of drug abuse. The very fact that we know so much about these two should help us keep our feet on the ground when we consider what should be done about the drug problem .

Thus, mankind's long experience of the use and abuse of alcohol has provided several useful lessons including the futility of having laws which are not well supported by public opinion.

LEGISLATION ON ALCOHOL

The use of alcohol in New Zealand is subject to many regulations as can be seen by glancing through the Sale Of Liquor Act 1989, its amendments and regulations. And that is but one of the relevant Acts. However the situation becomes simpler when you seek the intent of all this legislation.

It amounts to curtailing the following: (I) reprehensible behaviour resulting from acute intoxication (2) alcoholism; (3) impaired control over motor vehicles and other potentially dangerous contrivances and (4) the supply of alcohol, especially to minors.

Possessing alcohol is not an offence per se. Nor is it an offence to become deeply intoxicated in your own home so long as you do not seriously disturb the neighbours. What can get you in trouble is being drunk and disorderly. You can get drunk every night without legal penalty provided that no one else suffers in consequence. Likewise you can have quite a few drinks at a pub so long as you do not become drunk and disorderly or attempt to drive a motor vehicle.

One very important means of preventing the excessive consumption of alcohol is imposing various controls over its availability. There are major restrictions on where you can purchase alcoholic drinks and much of the price you pay is tax. This added cost puts a fairly effective brake on consumption. Some of the penalties for trying to avoid taxation are severe. Thus to quote an eminent Judge. Making water in public is an offence, but making whisky in private is a crime .

A COMPREHENSIVE ACT

We could do far worse than base a comprehensive Act on these principles. For the sake of argument I shall suppose that the chief aims of the Act would be to provide legal sanctions against (1) various unacceptable forms of drug-induced behaviour (2) the unlawful importation, manufacture, possession and/or sale of particular substances: and (3) the supply of scheduled substances to minors.

Since many of the substances which may be taken for non-medical reasons have no other uses, it is tempting to suppose that the best way of dealing with drug abuse is to ban the possession and sale of substances which can cause it.

One limitation of a prohibitionist policy is that some of the substances which may give rise to drug abuse do have valid uses. For example, it would be quite impracticable to ban the use of petrol and most of the other agents used by sniffers. Such drugs as morphine have important therapeutic uses

Another limitation is that a strong demand for a banned article can usually be met illegally. As Milton Friedman has pointed out, banning the possession of wanted drugs not only creates obscene profits that finance the murderous activities of the drug lords but also "monopolises the efforts of honest law forces so that they are starved of the resources to fight the simpler crimes of robbery, theft and assault.

Apart from depriving gangsters of a major source of income and influence the repeal of the National Prohibition Act in the US helped to fill the public coffers both by way of taxation and through the savings which became possible when there was no longer a need for the various resources which had been used for enforcement of the Act.

PROTECTION OF MINORS

Another way of combating drug traffickers is to provide truly severe penalties for supplying drugs to minors. Even such an ardent libertarian as John Stuart Mill conceded that those who are still in a state to require being taken care of by others must be protected against their own actions as well as against external injury.

Surely one of the great worries of parents nowadays is that their children may be experimenting with drugs before they have much understanding of the risks such as that of drug abuse leading to drug dependency. This is an area in which tougher action is clearly justified.

DRUG-INDUCED MISBEHAVIOUR

As I have already indicated, it would be much easier for the policy to deal with persons who experiment with such substances as datura and petrol if the offence with which they could be charged was something like obnoxious behaviour resulting from deliberately induced intoxication.

There is a good precedent for being concerned with the various forms of drug-induced misbehaviour as distinct from particular drugs which may give rise to it.

The Transport Act 1962 made it an offence for a person to drive, attempt to drive or be in charge of a motor vehicle while being under the influence of a drug to such an extent as to be incapable or exerting proper control over the vehicle. The drug does not have to be one which has been listed in some schedule. Even if it were one which was unknown when the Act was promulgated you could still be found guilty if you took the new drug knowing that it might impair your driving ability.

CANNABIS VIS-A-VIS ALCOHOL

One quite simple way of bringing about a reduction in alcohol related offences would be to raise substantially the cost of alcoholic drinks. Now I know of course that such a move could well prove to be politically disastrous for the minister who brought it about.

But does not that indicate an underlying problem, namely the unwillingness of the public at large to deal firmly with the gross abuse of alcohol? It is too easily available, especially to minors. With alcohol our Legal sanctions work poorly for lack or support. New Zealanders are far too tolerant of drunken motorists and of drunken louts.

On the other hand we punish adults who smoke marijuana even though violence is far less likely to erupt at a pot party than at a good old boozaroo.

Would it not increase respect for the law if the only offences arising out of the use (as distinct from the sale and possession) of marijuana were those in which-as with alcohol-obnoxious behaviour results? We should not be like those Puritans who in Samuel Butler's words

Compound for sins they are inclined to.

By damning those they have no mind to.

I am opposed to the use of such cannabis products as marijuana for such reasons as those recently given in the Public Health Commission's publication, Cannabis And Health. The more that can be done to deter its use (especially by minors) the happier I shall be. But I doubt whether we are using the right tactics.

Judging from what has happened elsewhere. it seems that the best way of dealing with the abuse of a notorious drug is to permit its legal supply under conditions which heavily discourage its use. For example one of the merits of treating opium addicts with lawfully prescribed methadone is that it spares the community the spate of robberies which would otherwise be carried out to pay for the exorbitant prices or drug traffickers.

Back in the 1960s I thought that it might still be possible in New Zealand to control the cannabis situation by measures aimed mainly at totally prohibiting its use.

That policy has failed both here and elsewhere. Cannabis preparations have become freely available under conditions which glamorise their use and maximise the chances of their misuse.

I leave the last words to the editor of the British Medical Journal, Richard Smith, who declared recently Policies that allow some decriminalisation and legalisation are much more likely than prohibition to succeed in achieving everybody's aim of minimising the harm from drug abuse.

Fred Fastier, emeritus professor pharmacology, Otago University

Originally published in the Otago Times-Daily 15-16 February 1996

Published with permission.


Appendix E NZ Drug Policy Forum Trust

 

[From the Constitution]

2. The objects for which the Trust is formed are: -

(a) To create a forum for physicians, professionals and other interested parties to encourage responsible debate about sensible drug policies in New Zealand.

(b) To assemble and to analyse scientifically valid information concerning the health effects, both physical and psychological, of currently illegal drugs.

(c) To perform sophisticated policy analysis concerning the likely social effects and practical implications of possible drug reform strategies, taking into account New Zealand's special character and circumstances, and current legislation in New Zealand relating to controlled drugs, controlled drug analogues and prohibited plants.

(d) To prepare, from time to time, formal reports concerning the Trustees' findings with respect to the above topics.

(e) To communicate the Trustees' findings to interested parties, including politicians and policymakers, through whatever means considered by the Trustees to be necessary and appropriate.

(f) To provide a link in New Zealand with physicians, professionals and other interested parties outside New Zealand who are involved in debating or formulating policies relating to drugs.

(g) To carry out scientific research ancillary or incidental to the aforesaid objects and to publish or otherwise disseminate the findings of such research.

 

Current Trustees:

Druis Barrett, president, Maori Women’s Welfare League
Dr Robin Briant, senior physician, Auckland Hospital
Dr Peter Crampton, research fellow, VUW Health Services Research Centre
Prof Fred Fastier, U of Otago, emeritus, pharmacology
Dr David Hadorn, physician and health researcher (Forum director)
Amster Reedy, Maori scholar and statesman
Prof Norman Sharpe, head, department of medicine, U of Auckland Medical School
Helen Shaw, educationalist
Prof Warren Young, professor of law and ass't vice chancellor of research, VUW 

Current Board of Advisors

Prof Andrew Hornblow, dean, Christchurch School of Medicine
Dr Graeme Sutherland, forensic scientist
Dr Elisabeth Wells, senior research fellow, Christchurch School of Medicine


The Drug Policy Forum is calling for submissions on this discussion paper and will recommend a specific alternative system of cannabis control for New Zealand early in 1998.

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