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Legislative Options for Cannabis Use in Australia
Executive summary
This paper is concerned with the legislative options available for cannabis, and the
impact of those options on the community at large and on the law enforcement sector. It
has been prepared by the Australian Institute of Criminology at the request of the
National Task Force on Cannabis; the Task Force plans to use this paper in developing its
recommendations to the National Drug Strategy Committee. This paper, along with other
commissioned Task Force papers, may in future be used to inform the development of a
national policy on cannabis.
Given the importance which is assigned to setting clear goals for any major social
policy, it is surprising how infrequently discussion of drug policy is preceded by a
precise specification of what the policy is intended to achieve. Too often, goals are
either global (e.g. to reduce drug use) or unattainable (e.g. to eliminate drug use), and
as such they allow for many interpretations. Similarly, goals are often stated in such a
way that they could be achieved through a number of quite contradictory strategies and at
vastly differing costs.
This report starts from the proposition that it is important to know what are the
requirements for rational drug policy in general, and what are the objectives of cannabis
policy specifically. In this context, it is important to address the issue of drug policy,
as well as drug legislation. The link between policy, legislation and implementation is
important and must be factored into these considerations. The development of policy and
legislation relating to cannabis should take into account the following issues:
- Arguments that apply to the most appropriate control regime for one drug need not "
and often do not" apply to others.
- Drug policy should be crafted to take account of the different patterns and types of
harms caused by specific drugs.
- The details of control regimes are crucial determinants of their outcomes. Such details
should not be left undefined.
- Any analysis of control regimes should attempt to estimate their effects on both
consumption levels and patterns of use.
- Control regimes should not be considered in isolation from the problems of
implementation and enforcement.
- Arguments about the consequences of drug use should be separated from arguments about
morals.
- Options should be evaluated on the basis of evidence of damage.
- Any policy should recognise the changing nature of the drug problem and be able to
change with it. Additionally, all policies should be reviewed periodically to ensure that
they are still relevant to current circumstances.
- Policy should be made in the light of the costs of control as well as the benefits.
- The goals of drug policy should be realistic.
- Discussion of policy options should include a specification of which harms they are
intended to reduce.
- Discussion of cannabis policy (and drug policy generally) should recognise the existence
of multiple and sometimes contradictory goals.
- Policies to discourage cannabis use should be shown to be effective or be changed.
- The harms caused by the control regimes themselves should not outweigh the harms
prevented by them.
The application of these principles in a given situation should lead to the development
of explicit policy goals relating to cannabis. It is likely that priorities will need to
be assigned between the available goals, as they are frequently inconsistent.
Nevertheless, the explicit specification of the goals which policy and legislation are
intended to achieve is essential if they are to be properly articulated and evaluated.
Cannabis has been used for many thousands of years. It has been used for the production
of material products such as clothing and rope; for its medicinal properties; and for its
psychoactive properties. Cannabis was used medicinally in Australia until the mid-1960s
and is currently used in many parts of the world, in the form of hemp, for the production
of cordage, clothing, etc.
Australian drug laws, like those of many other countries, closely followed the
development of international drug treaties. The influence of the United States of America
in the conception and development of treaties and related international instruments has
been enormous. The 1925 Geneva Convention on Opium and Other Drugs was the first such
convention to cover cannabis. The Convention required the parties to limit the
availability of cannabis to medical and scientific purposes only. This remains the status
of cannabis in the international community.
Numerous enquires into drug use and trafficking have been conducted both in Australia
and overseas. Australian committees have generally been very cautious about recommending
changes to the legal status of drugs. Nevertheless, a number of high level Australian
committees of inquiry have recommended the liberalisation of legislation relating to
cannabis, or at least that such liberalisation be carefully considered. The most recent of
these at the national level was the Parliamentary Joint Committee on the National Crime
Authority which reported in 1989, and at the State/Territory level, the Australian Capital
Territory Legislative Assembly's Select Committee on HIV, Illegal Drugs and Prostitution,
which reported in 1991.
In the main, cannabis was little known or used in Australia until the 1960s.
Nevertheless, the drugs legislation which was introduced in most of the States and
Territories towards the end of the 1800s and early 1900s (primarily concerned with the
smoking of opium by Chinese people) provided a framework for the prohibition of cannabis.
The first Australian controls on cannabis use were introduced in Victoria in 1928
legislation which penalised the unauthorised use of Indian hemp and resin. This was
followed by corresponding legislation in the other jurisdictions as the years passed. From
the 1960s, however, the Commonwealth has become increasingly involved in legislation
relating to cannabis (particularly with regard to its importation). The penalties relating
to cannabis cultivation, possession and use were generally quite severe during the 1960s
and 1970s but have tended to lessen since then in most jurisdictions, at least with regard
to the minor offences of use and possession of small quantities.
Perhaps the most significant recent legislative changes have been the introduction in
1987 in South Australia and in 1992 in the Australian Capital Territory of expiation
notice schemes. Under these schemes, a person found committing a minor offence relating to
cannabis is given what amounts to an "on-the-spot" notice. If the prescribed
penalty is paid within the prescribed time then no court appearance is required and no
conviction is entered. If the person receiving the expiation notice fails to respond to
it, however, normal court processes follow.
People considering the legal status of drugs and the possibility of legislative change
need to be cognisant of Australia's international treaty obligations. Although some
difference of opinion exists with regard to the range of legislative options for cannabis
which are available to Australia within the scope of the international treaties, it is
clear that the policy of total prohibition currently followed by most States and
Territories is only one of a number of options which are available.
Many legislative options are available for cannabis, and much confusion exists in the
terminology used to describe them. In our view, the South Australian Royal Commission into
the Non-Medical Use of Drugs (the Sackville Commission) which reported in 1978 provided
the most useful categorisation of these options. The language used avoids the terms
'decriminalisation' and 'legalisation' as these expressions have quite different meanings
for different authorities. The five options discussed below capture all the approaches
which people have in mind when they refer to 'decriminalisation' and 'legalisation', as
well as other options which these two words may or may not encompass. The options are
total prohibition (with and without an administrative expediency principle), prohibition
with civil penalties for minor offences, partial prohibition, regulation and free
availability.
Under the system of total prohibition the use, possession, cultivation, importation,
sale and distribution of any amount of cannabis are treated as criminal offences. Total
prohibition can take a number of forms. In the United States, for example, the eradication
of all illicit drug use is a central aim of drug policy and it is thought that total
prohibition is the most effective means of reaching this goal. Cannabis use is seen as
part of a larger drug problem and is dealt with as such. The total prohibition policy, as
implemented in the United States, many other countries and most of the Australian States
and Territories, has clearly not achieved its intended goal of substantially reducing
cannabis consumption. This is despite an increasing amount of resources directed towards
achieving this goal. Both the financial and social costs of law enforcement under an
active policy of total prohibition are high. The policy fails to meet a number of the
crucial criteria for good drugs policy, enunciated above. Cannabis policy has not been
separated from that of other drugs; arguments about the consequences of drug use have not
been separated from arguments about morals; the goals of the 'war on drugs' are
unrealistic; it appears that the harms caused by the control regimes outweigh the harms
caused by the drug itself.
The Netherlands provides an example of a quite different application of the total
prohibition policy from that observed in the United States and elsewhere. In The
Netherlands, legislation makes a clear distinction between 'drugs presenting unacceptable
risks', on the one hand, and 'cannabis products', on the other. In addition, a clause in
The Netherlands Code of Criminal Procedure, known as the 'Expediency Principle', states
that the Prosecution Office may decide whether or not to enforce certain laws, to
prosecute or to initiate criminal investigation on the basis of whether or not such action
would be 'in the public interest'. Using this clause, the Minister of Justice issued
guidelines in 1976 for the enforcement of drug laws and the investigation and prosecution
of breaches of drug laws. Essentially it is these guidelines, rather than the total
prohibition legislation, that determines drug policy in The Netherlands. According to the
guidelines, dealing, possessing or producing small amounts of cannabis do not require
police investigation, arrest or prosecution.
A low priority is also given to the investigation and prosecution of retail dealing in
cannabis, and police are only required to confront cannabis dealers when they advertise
publicly or conduct their business in a provocative manner. This is part of a broader
government policy of 'normalisation', under which efforts are made not to marginalise drug
users, but to ensure that the harm related to their drug use is minimised and that they
are able to avail themselves of community services to the optimum extent. Evaluative
studies have shown that cannabis use has not increased in The Netherlands since the
liberalisation of its policy relating to cannabis. Indeed, levels of cannabis consumption
are far lower than those of the United States, where the total prohibition policy is
rigorously enforced. The policy of the separation of the drug markets (i.e. separating
cannabis from other drugs which can have more serious consequences) has apparently been
successful. In a number of ways The Netherlands' drug policy meets many of the criteria
for good drug policy discussed above.
The second policy option is that of prohibition with civil penalties. Under this
option, the penalties for the possession and cultivation of small amounts of cannabis for
personal use are dealt with by civil sanctions such as paying a monetary penalty, rather
than by criminal sanctions such as fines or imprisonment. Criminal sanctions still apply
to the possession, cultivation and distribution of large quantities of cannabis. The South
Australian Cannabis Expiation Notice Scheme, introduced in 1987, and the similar scheme
introduced in the Australian Capital Territory in 1992 are examples of this option in
practice.
As mentioned above, under the South Australian and ACT systems, minor cannabis offences
such as the possession of small quantities, cannabis consumption, or the cultivation of a
small number of plants are expiable offences, i.e. if the prescribed penalty is paid
within the specified period, the offender does not have to appear in court and avoids a
criminal conviction. If the penalty is not paid then the normal court appearance and
possibility of conviction ensues.
The evaluations conducted to date indicate that the cannabis expiation notice schemes
go a long way towards achieving their goals and meeting the criteria for effective drugs
policy discussed above. This option takes account of the different patterns of use and
harms relating to cannabis, compared with other drugs. The policy and legislative
development has been accompanied by attention to the details of implementation, rather
than being expressed in general terms only. It reflects an understanding of the patterns
of harm associated with cannabis, recognising that much of the harm relates to the
patterns of enforcement of cannabis legislation, rather than to the use of the drug
itself. The approach is realistic and the goals attainable, focusing on minimising the
negative impact on users of cannabis-related involvement in the criminal justice system,
along with producing society-wide benefits in terms of lessening the financial costs to
the criminal justice system.
The major concern associated with this approach (at least in South Australia where most
experience has been gained) is that there could be a social class differential in terms of
the application of the policy. In other words, people from lower socioeconomic classes
could be disproportionately represented among those who fail to expiate the offence and,
consequently, obtain criminal records. This concern is balanced by the observation that,
at a society-wide level, it appears that the patterns of cannabis consumption are similar
in South Australia and the ACT to those found in the other jurisdictions which operate
policies of total prohibition.
The third legislative option is partial prohibition. This is an option which seeks to
maintain controls on the production and distribution of cannabis while at the same time
avoiding the costs of criminalising the use of the drug. Under partial prohibition, it
would remain an offence to grow or deal in cannabis in commercial quantities. It would not
be an offence to use cannabis or to possess or grow it in quantities judged appropriate
for personal use. A number of variations are possible within this broad outline. A small
number of countries, for example Spain, have followed this model. Other countries, such as
Italy, have made possession and use unlawful, but not criminally punishable. In none of
these cases does it seem that an increase in cannabis use has resulted from the
establishment of this legislative approach.
The partial prohibition model attempts to use legal restrictions to discourage cannabis
use by concentrating on the prohibition of the commercial cultivation and supply and on
the advertising of the availability of the product. At the same time, the model attempts
to minimise the personal and social costs of the total prohibition policy by allowing the
use and personal possession of cannabis. It assumes, therefore, that the harms associated
with cannabis are sufficiently serious to justify some level of restriction on its
availability and that criminal sanctions remain an appropriate instrument to achieve this
restriction.
Since this model has not been fully implemented and evaluated in any country, no
empirically based information is available as to the likely outcomes of this model.
Nevertheless, it is likely that the main outcome would be to reduce the financial and
social costs of having personal possession and use a criminal offence. The possibility of
an increased level of use of cannabis, under this model, has been suggested as a potential
limitation on its effectiveness. It appears, however, that this fear is unfounded owing to
such factors: as the limited role of deterrents in a situation where only a low
probability of detection occurs; evidence that fear of arrest is not a significant factor
in people's decision not to use cannabis; and evidence that reducing or eliminating
penalties does not generally lead to any increase in cannabis consumption. This option
meets the criteria of effective drugs policy to a greater extent than some of the other
options considered here. It separates cannabis from other (potentially more harmful)
drugs. It seeks to minimise the negative impacts of enforcement regimes. It acknowledges
the contradiction between the goals of limiting cannabis use while minimising the negative
aspects of enforcement. Finally, its goals are realistic and attainable.
The fourth legislative option is regulation. In this approach, the production,
distribution and the sale of cannabis would be controlled to a greater or lesser extent by
government agencies. Trafficking outside the regulated system would continue to be a
criminal offence and attract penalties. Activities associated with personal use, however,
would not be penalised. While no full working model of this option is available, cannabis
control in The Netherlands exhibits some elements of the regulatory option. While the
Dutch Government does not license production, distribution or sale of cannabis, youth
centres and coffee shops selling hemp products operate openly under certain clearly
defined conditions. Examples of regulatory systems for drugs other than cannabis exist
within Australia. For instance, opium poppies are cultivated under government licence in
Tasmania. A regulatory regime applies to the drugs tobacco, alcohol and many
pharmaceutical products.
The two major regulatory models for currently illicit drugs are regulated commercial
sale and government monopoly. The option exists, within this broad approach, for a range
of initiatives to limit the attractiveness of cannabis, including setting high prices
through taxation and limiting the availability of the product. The primary rationale for
the regulatory option is the recognition that the eradication of all cannabis use is an
unrealistic goal and that, since cannabis use will occur, it should occur in the safest
possible environment. It recognises that the gateway theory of drug use (that cannabis
users have an increased likelihood of progression to more dangerous drugs as a direct
result of using cannabis) is not supported by empirical evidence.
The outcomes of a regulatory policy would depend very much on the regulatory framework
established. To achieve its goals, the regime would need to be structured in such a way as
to remove the incentives for the operation of a black market in cannabis. While
considerable financial and social costs could be avoided by the operation of this policy,
it could entail a complex system of licensing and monitoring which could involve high
administrative costs. These implementation details would need to be clearly worked out to
attain a satisfactory balance.
A number of policy goals might be satisfied by a well-designed regulatory system. These
include the separation of drug markets, a separation of arguments about the consequences
of drug use from arguments about morals, the adoption of a realistic approach to drug use
and a reduction in harm. Two important factors must, however, be kept in mind. The first
is the need to mould any policy of regulation to fit the particular drug Ñ in this case
cannabis. Secondly, regulatory policy must take into account not only legislative
frameworks but also appropriate measures of social control, such as appropriate drug
education and prohibitions on advertising, so that the goals of reduction of harm can
continue to be pursued.
The final option discussed here is the free availability of cannabis. Like the total
prohibition option, this is an extreme legislative option. Free availability would mean
the absence of any legislative or regulatory restrictions on the substance's cultivation,
importation, sale, supply by other means, possession or use. This legislative option is
not practised in any countries at the moment but was the approach used in Australia until
the 1920s. It must be noted, however, that very little cannabis use occurred up to this
time.
Although a strong lobby exists for the liberalisation of cannabis legislation in
Australia, few lobbyists advocate totally free availability. Perhaps for pragmatic
reasons, at least some form of regulation is generally deemed acceptable. This reflects
concerns about the quality of cannabis (e.g. the presence of health-impairing pesticide
residues), driving or operating machinery while intoxicated by the drug, its use by
children, etc. Those who advocate totally free availability do so on the basis of an
extreme libertarian position.
It is difficult to imagine the free availability option ever being fully implemented,
particularly in Australia. To do so would require governments to abrogate all
responsibility in the area of consumer protection, to forego taxation revenue and to take
no action to protect particularly vulnerable groups.
Considering the position of other drugs in Australian society, it is difficult to
maintain an argument for the free availability legislative option. This is because
governments have both the right and the responsibility to act to mitigate sources of harm
to society. The culture shift in most Western nations to minimise the harm caused by
currently licit drugs, especially tobacco and alcohol, means that the free availability of
cannabis is not a viable contemporary option.
The terms of reference for this study include a review of diversion and compulsory
treatment as they relate to cannabis users. Diversion of cannabis users can take a number
of forms, including pre-arrest diversion, pre-court diversion, pre-sentence diversion or
post-conviction diversion. Compulsory treatment may or may not be a feature of
diversionary process, that is, compulsory treatment is sometimes mandated as a condition
of the diversion of an offender or an alleged offender from the criminal justice system,
but sometimes operates independently of that system.
Pre-arrest diversion is essentially the discretion exercised by police at the point of
contact with an alleged offender. In addition to this form of diversion, a variety of more
or less formal diversionary programs are in place in Australia and overseas. As indicated
above, they operate at a range of points in the processing of alleged and convicted
offenders and take a wide variety of forms. In the Australian Capital Territory, for
example, legislation provides, as a sentencing option, that anyone found guilty of an
offence may being sent for assessment as to whether the person is drug dependent and
suitable for referral to treatment. In these instances, an offender may be referred to a
treatment assessment panel consisting of a legal practitioner and two others with
extensive knowledge of alcohol and other drug treatment. In conjunction with the offender
and relevant treatment agency, the panel makes a recommendation to the court which will
determine the length of time the person should spend at the treatment centre and the
pattern of periodic reviews. If the person consistently fails to appear for review or
fails to undertake the treatment program, a summons may be issued and the person dealt
with by the court in the normal way. Diversionary programs mandated by legislation also
exist in South Australia, New South Wales, Victoria and Western Australia. The method of
operation of the diversionary programs differs from case-to-case. Diversionary systems in
other countries illustrate a further variety of options.
Although only a tiny minority of cannabis users report problems with the drug serious
enough to require treatment, it is widely accepted that a prison sentence is an
unsatisfactory option for many offenders with drug problems, and diversion for the purpose
of treatment is a widely used alternative, one welcomed by judges and magistrates.
Criminal justice system involvement is seen as providing an opportunity to intervene in
drug users' lives in order to confront them with their drug problems and to bring them
into contact with treatment agencies. In some cases, merely attending for assessment is
sufficient to bring about a change in a person's attitude. While some dispute exists about
the value of coercion, the fact that involuntary clients tend to spend longer in treatment
programs than do voluntary clients frequently contributes to their exhibiting more
successful treatment outcomes. It should be noted, however, that few cannabis users need
treatment for dependence on cannabis as such. Rather, their needs are more likely to
centre around their lifestyles and psychological needs generally.
A number of countries, and within Australia the State of Victoria, have legislative
provisions relating to civil commitment for the compulsory treatment of drug users,
generally people deemed to be drug dependent. In Victoria, for example, a person who is
dependent on alcohol and/or other drugs and who is considered suitable for treatment may
be committed for treatment for a period of seven days, and at the discretion of the
medical officer in charge of the assessment centre, for a second seven days. Civil
commitment is widely used for drug users in the United States. It is generally applied to
people who come to the attention of the criminal justice or the health systems, and who
refuse to enter treatment voluntarily. The individual is referred for medical examination
and, on the basis of that examination, may be committed to compulsory treatment.
Naturally, this raises serious issues regarding the civil rights of the individuals
involved, as decisions are made about their liberty without referral to a court. The
relevance of such programs to legislative options for cannabis in Australia are limited,
owing to the fact that very few cannabis users have problems with dependence on the drug,
and there is little evidence that treatment, as it is generally understood, has much to
offer cannabis users.
The principle of evaluating new policy and legislation is widely accepted but is less
frequently observed in practice. In Australia and most other Western nations, insufficient
has been done, especially by government agencies, to monitor and evaluate their national
drug policies. This is the case in instances where drugs legislation has been developed
incrementally, and also where new approaches have been implemented following detailed
policy reviews. Too often evaluation is considered relevant only after a policy has been
in place for some time and changes are being considered. To be of most value, new
initiatives should be designed and implemented with an explicit and adequately resourced
monitoring and evaluation component built into the initiative from the outset. Policy
evaluation is a different process from program evaluation, having different goals and
research techniques.
Australia's National Drug Strategic Plan 1993-97 provides the framework within which we
base our recommendations relating to monitoring and evaluation. The plan points out that
'the overall mission of the National Drug Strategy is to minimise the harmful effects of
drugs and drug use in Australian society'. Policies and programs in specific areas,
including cannabis, should be evaluated in a manner consistent with this national goal.
Decision-making relating to legislative options for cannabis in Australia can be
conducted in an ad hoc manner, but clearly the application of more systematic policy
choice models is preferable. Two groups of such decision-making models are available to
governments, the 'rational' and the 'incremental' approaches. A rational decision-making
model is one which goes through logical steps to clarify the context of the legislative
initiative, its goals, the rationales for the goals and the likely impacts on key
stakeholders. It includes a careful analysis of the data available to evaluate the
proposed approach. The process would end in making judgments regarding the appropriateness
of the goal or goals, how achievable the goals are and, if the goals are judged to be
achievable, how effective, efficient and appropriate are the implementation options
available. This systematic, rational approach to policy evaluation is not often enough
seen in the development of drugs policy. Nevertheless, the National Drug Strategic Plan
provides a clear framework for engaging in this type of analysis. The information
presented in this report, along with the research reports prepared by other groups for the
National Task Force on Cannabis, provides a firm base for the making of rational policy
choices.
Australia's National Drug Strategy provides a policy framework within which new
legislative approaches may be developed. Both existing and newer approaches have the
possibility of both enhancing and detracting from the achievement of the mission of the
National Drug Strategy, that of minimising the harmful effects of drugs and drug use in
Australian society.
No best single option for cannabis legislation exists. What is most appropriate will
depend upon what goals both policy makers and the community are seeking to achieve. Our
review suggests that two of the five legislative options discussed above are inappropriate
in contemporary Australian circumstances. They are the options which we have characterised
as total prohibition and free availability. Australia experiences more harm, we conclude,
from maintaining the cannabis prohibition policy than it experiences from the use of the
drug. We also reject the legislative option of the free availability of cannabis. Our
society is one that accepts that governments and others have both the right and the
responsibility to intervene in diverse ways to protect people from harm and to advance the
common good. It would be unreasonable, therefore, to argue that cannabis should be
available in an uncontrolled manner.
We conclude that cannabis law reform is required in this country. Many options for
policy, legislation and implementation processes exist within the broad categories of
prohibition with an administrative decision that it is inexpedient to prosecute people for
minor cannabis offences, prohibition with civil penalties, partial prohibition and
regulated availability. We believe, on the available evidence, that widely accepted social
goals, well attuned to the needs of contemporary Australian society, will be attained
through the adoption and implementation of policies which lie within these options.
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