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Legislative Options for Cannabis - Australian Government

Chapter 3.

CANNABIS IN CONTEXT: HISTORY, LAWS AND INTERNATIONAL TREATIES


Overseas legislation

In many European countries, no distinction exists in law between the so-called 'hard' and 'soft' drugs. In a recent study of 12 EC nations, only the following nations distinguished cannabis from other drugs:

  • Spain distinguishes between 'substances which can cause serious damage to health and cannabis and its derivatives' ([54]Leroy 1991, p58);
  • Ireland distinguishes between 'cannabis and other narcotic products' ([55]Leroy 1991, p58);
  • The Netherlands distinguishes between 'substances presenting an unacceptable risk' ([56]Leroy 1991, p58) and cannabis;
  • Italian law distinguishes between 'highly addictive drugs (Schedules I and III) and drugs with lesser addictive properties AND cannabis (Schedules II and IV)' ([57]Leroy 1991, p58); and
  • the United Kingdom Misuse of Drugs Act contains three Schedules in which drugs are placed according to their level of risk. Cannabis, some opiates, barbiturates and some amphetamines are classified as Schedule B drugs.

Drug use (involving both 'hard' and 'soft' drugs) is not proscribed in Spain, Ireland, Italy or The Netherlands. Possession for personal use is prohibited in Spain, Ireland, Italy and The Netherlands, but lesser penalties are provided when possession involves cannabis. In the case of trafficking offences, laws in Spain, Ireland, Italy and The Netherlands impose less severe penalties when trafficking involves cannabis.

In the United States, the federal Controlled Substances Act lists cannabis in Schedule 1 - where drugs with a high dependency potential and no accepted medical use are located. Possession of a controlled drug attracts a lighter penalty than does trafficking. Even so, penalties for possession are substantial - a first offender being liable to up to one year's imprisonment and a fine of between $1,000 and $5,000.

During the 1970s, at State level, 11 States adopted a civil penalty model for possession of small amounts of cannabis for personal use. Oregon was the first State to introduce civil penalty laws in 1973. In general, the maximum penalty for possession of small quantities of cannabis for personal use in the 'decriminalised' states is $100. Exceptions are Mississippi ($250) and Nebraska ($200).

Efforts to recriminalise these activities have been described as 'concerted' ([58]Reuter 1992), with William Bennett, the National Drug Control Director, personally appearing before a number of state legislatures to argue for recriminalisation. In 1990, Alaska reintroduced criminal penalties for possession of small amounts of cannabis.

In Canada, the federal Narcotic Control Act 1961 has remained largely unaltered to this day. There are six basic offences under the Act. These are: simple possession, trafficking, possession for trafficking, cultivation of opium or cannabis, import or export of scheduled drugs, and prescription shopping ([59]Solomon 1988). According to Solomon, apart from the offence of cultivation, the Act does not differentiate between scheduled drugs. Cannabis possession can be tried summarily or on indictment. In the case of simple possession offences, summary conviction of a first offence renders the offender liable to a fine of $1,000 and six months imprisonment. In the case of a subsequent offence, summarily prosecuted, the penalty is $2,000 and one year's jail. On indictment, an offender is liable to seven year's imprisonment.

The Canadian Government did not respond positively to the Le Dain Commission recommendation that possession of cannabis no longer be a criminal offence. However, in 1972 the Criminal Law Amendment Act gave judges a discretion to direct that an offender be discharged absolutely or on probation. It appears that law enforcement officers rarely proceed on indictment in the case of possession offences, and that 'judges rarely impose the maximum sentence or anything close to it in cannabis cases' ([60]Solomon 1988, p126).

In this section, particular attention is devoted to the laws and enforcement practices of The Netherlands and the United Kingdom. Illicit drug laws in both countries have been influenced by existence of international conventions. Initially both countries enacted drug laws in the absence of a domestic drug problem.

In The Netherlands illicit drug laws were first introduced in the Opium Act 1919. Apart from amending legislation in 1928, drug laws remained unchanged until the present Opium Act was passed in 1976. Current Dutch attitudes towards illicit drug use - manifested in the Prosecution Guidelines that govern the enforcement of the Act - are said to arise from a number of factors peculiar to Dutch society and history. First, realism and pragmatism. Second, a belief in social pluralism. Third, an ideology of normalisation in which 'illicit drugs are seen as a limited and manageable social problem rather than an alien threat forced on an otherwise innocent society' ([61]Leuw 1991, p2). Fourth, is the context of the criminal law itself. Dutch writers stress that the criminal law is not perceived as enforcing social morality but rather as 'an instrument of social control, whose results must be assessed from case to case' ([62]Ruter 1988, p6).

They further report that the criminal law has a minor role in The Netherlands. Until the introduction of the Opium Act 1976, drug offences in The Netherlands appear to have been actively prosecuted and severely sanctioned. According to [63]van de Wijngaart (1991), cannabis appeared in The Netherlands in the 1950s; harsh sentences were handed down, for example - 12 months imprisonment for minor cannabis offences; and media coverage was sensationalist.

However, despite sentencing practices, an increase in cannabis use was reported, especially among Dutch youth. During the 1960s pressure for law reform increased and culminated in 1976 with new opium legislation. The present Opium Act distinguishes between drugs posing unacceptable risks such as heroin, cocaine, LSD and cannabis oil, and hemp products - marijuana and cannabis resin.2 It also decreased penalties for possession of drugs for personal use, but increased penalties for trafficking in hard drugs. Overlying the offences and penalties in the Opium Act are police and prosecution guidelines which have produced a situation that some commentators have described as de facto decriminalisation. These guidelines relate to the 'intensity of police custody and preventive detention, prosecutorial alternatives (dismissal, fine, or prosecution) and penalties involving violations of the Opium Act, and were established by the Procurators-General in 1976' (Marshall et al. 1990, p395). The guidelines are made possible by the Expediency Principle set out in Articles 167 and 242 of the Code of Criminal Procedure. This principle operates where the public good is served by refraining from prosecution. It can operate for both individual offenders and categories of offence. In the case of the Opium Act, a number of activities are designated as 'not for prosecution, detection or arrest'. These include:

  • the sale of less than 30g of hemp products; and
  • dealing in, possessing or cultivating up to 30g of cannabis.

High priority is given under the guidelines to the detection and prosecution of traffickers. In Britain, like Australia and The Netherlands, drug laws were in existence long before the existence of a widespread domestic drug problem. During World War I concerns about drug taking by soldiers led to the issuing of Army Council orders forbidding the supply of cocaine, heroin, Indian hemp, morphine, and other substances to soldiers except by medical practitioners.

The existence of international conventions resulted in the enactment of the Dangerous Drugs Act 1920 - as a signatory of the Treaty of Versailles, Britain undertook to incorporate the 1912 Hague Convention into domestic law. Even at this early stage penalties were severe. Illegal possession of listed drugs could result in a 200 fine or six months imprisonment, or both. Penalties were higher for repeat offenders. The Dangerous Drugs Amendment Act 1923 raised these penalties. However, '... at most the total annual convictions and known addicts numbered only a few hundred until the second half of the twentieth century' ([64]Howitt 1990-91, p357).

The present Misuse of Drugs Act 1971 creates different classes of drugs according to their potential for harm and penalises activities such as possession and cultivation. Cannabis and cannabis resin are Class B drugs and, while subject to lesser penalties than Class A drugs, still carry substantial penalties. For example, summary prosecution for an offence of possession of a Class B drug can result in three months imprisonment and/or a 500 fine. If the offender is convicted on indictment the maximum penalty is five years jail or a fine, or both. Cultivation of a Class A, B or C drug exposes the offender to a penalty of six months incarceration and/or a 2000 fine on summary conviction, and up to 14 years imprisonment or a fine, or both, if convicted on indictment ([65]Fortson 1992). Like The Netherlands and Australia, the most substantial penalties are available for drug trafficking. While imprisonment is available as a sanction for cannabis possession in Great Britain, it appears that custodial sentences are not imposed for possession of cannabis for personal use. In addition, enforcement of the Misuse of Drugs Act may vary considerably throughout the nation, especially where cannabis is involved: In an urban area if a policeman finds a young person in possession of a few grammes of cannabis he may deal with the matter informally or offer a caution, and no official record will be made. In a country town possession of exactly the same quantity of the drug might lead to prosecution, a fine, and headlines in the local newspaper' ([66]Royal College of Psychiatrists 1987, p125).

As in Australia, drug law reform continues to be an issue in Europe. Some reforms to European drug laws have been foreshadowed. [67]Wodak (1993) reports that: the lead has come from municipal authorities. Thirteen cities in Europe have signed a document known as the Frankfort [sic] Declaration which commits these municipal authorities to a programme of drug policy reform. Thirty-three other cities have signed an expression of interest and are considering their position. In November, this Declaration will be signed by the Mayor of Baltimore in the United States (p7).

In Italy, voters were asked in a referendum held on 18 April 1993 whether drug users should be imprisoned. The referendum was the result of changes to drug laws in 1990 which enabled courts to imprison drug users found guilty of possession of more than the 'average daily dose' of a drug (dose media giornaliera) (UNICRI, pers comm). As a consequence of the referendum, such drug users are now liable only to administrative sanctions such as a fine or the confiscation of their driver's licence. Drug traffickers are still liable to imprisonment.


 

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