Chapter 3.

CANNABIS IN CONTEXT: HISTORY, LAWS AND INTERNATIONAL TREATIES

Inquiries into drug use and trafficking

The number of inquiries into drug use and trafficking have been legion - both in Australia and overseas. Three common features are seen in many of them. First, many question the alleged ill effects of cannabis use. Second, some make recommendations for law reform. Third, most inquiries have had little impact on public policy or legislative change in relation to cannabis use.

In Australia, for example, governments have generally preferred to rely on law enforcement, treatment and education in their quest to reduce drug use [27](Hartland et al. 1992). They have been far less ready to embrace a philosophical shift in policy towards minimising the harm resulting from drug use or to tackle politically sensitive issues such as cannabis law reform. As mentioned earlier, the first inquiry relating to cannabis dates from 1893 when the British administration in India established the Indian Hemp Drugs Commission. The Commission heard nearly 1,200 submissions, both oral and written. It had a wide mandate, including the effects of cannabis use on 'the moral and social life of the people of India' [28](Abel 1980, p127). While the Commission found that excessive use of cannabis could lead to mental disorders, immorality and susceptibility to disease, it concluded that the evidence demonstrated 'most clearly how little injury society has hitherto sustained from hemp drugs' [29](quoted in Abel 1980, p131). In particular, the Commission reported that moderate use had no appreciable physical or mental effects, did not induce immoral behaviour and had little connection with crime.

Other major overseas inquiries that failed to discover any dependence-producing properties in cannabis, harm as a consequence of moderate use, a strong link with crime or a progressive effect leading inexorably to use of drugs such as heroin, cocaine or morphine were:

• the Panama Canal Zone Military Investigations (1916-1929);
• the La Guardia Committee Report 1944 - United States;
• the Report of the Hallucinogens Sub-Committee of the United Kingdom Advisory Committee on Drug Dependence 1968 (Wootton Report);
• the report of the Commission of Inquiry into the Non-Medical Use of Drugs 1972 (Le Dain Commission) - Canada; and
• the report of the National Commission on Marihuana and Drug Abuse 1972 (Shafer Commission) - United States.

In addition, both the Le Dain and Shafer reports contained proposals for law reform. The Shafer report recommended decriminalisation of:

• possession of marijuana for personal use in private; and
• casual distribution in private of small amounts of marijuana for no or insignificant remuneration ([30]United States 1972, pp152-4).
• It also recommended that possession in public of an ounce or less of marijuana should not be an offence but should be subject to seizure [31](United States 1972, pp152-4).
• The Le Dain Commission recommended that simple possession offences be repealed.

Other overseas investigations which failed to uncover unequivocal evidence about the harmful effects of cannabis were a study of the United States Institute of Mental Health entitled Ganja in Jamaica (1975), and a United States government study on Costa Rica (1975). It should not be surmised, however, that overseas investigations have all concluded that cannabis use presented no risks to drug users. United Nations reports published between 1973 and 1974 found that cannabis use was likely to lead to dependence, and resulted in public health and social problems. A 1974 US Senate report on Marihuana-Hashish Epidemic and its Impact on US Security reported that cannabis use resulted in brain damage, amotivational syndrome, and genetic and reproductive defects.

In Australia, there have been a large number of Parliamentary inquiries and Royal Commissions into drug use and drug trafficking. In 1971 the Senate Select Committee on Drug Trafficking and Drug Abuse (the Marriott Committee) was established. Its brief included investigation into the incidence, distribution and causes of drug use, and the adequacy of legislation and educational programs. It concluded that penalties for drug use should be commensurate with the different degrees of harm presented by different drugs, that young, first offenders should be treated leniently and that penalties for trafficking should be severe. However, its recommendations were cautious: that, pending further sociological and medical research, 'present restrictions on the use of cannabis drugs should be retained in Australia' (Australia 1971, p91).

The Marriott Committee report was followed in 1977 by one of the most significant Australian inquiries into drugs. In that year, the Senate Standing Committee on Social Welfare (the Baume Committee) produced its report Drug Problems in Australia - an Intoxicated Society? which looked at the use of licit and illicit drugs in Australia. Like other reports, before and since, it recognised differing harms produced by different drugs and concluded that drug use was more a social/medical problem than a legal one. It also considered the social and personal harms flowing from the illegal status of some drugs and recommended that:

• 'legal controls [should] not [be] of such a nature as to inhibit rehabilitation of the user or to cause more social damage than use of the drug causes' (Australia 1977, p164);
• cannabis legislation should be enacted that 'recognises the significant differences between opiate narcotics and cannabis in their health effects and in the criminal impact on users and the community' (Australia 1977, p164);
• possession of marijuana for personal use should no longer be a criminal offence and should attract only a fine;
• penalties for possession of hashish, hashish oil and purified THC should remain at their present levels because of the potency of these drugs.

Commonwealth Government response to the Baume Committee report was both tardy and hostile. [32]Hartland (1991) quotes Senator Baume's view of that response:

The Prime Minister of the day, rather than come and say I was a fink, did something cleverer. He appointed a learned conservative Judge to head up a Royal Commission into Drugs with terms of reference which virtually made it inevitable that the learned Judge would bring out a report which said we need more social control, heavier penalties, more enforcement authorities, and don't change the laws (p63).

In 1978 the New South Wales Joint Parliamentary Committee upon Drugs handed down its Report into Drug Abuses. Its mandate was to examine the effects, use and supply of drugs of dependence together with policy issues. Alcohol and tobacco were not included in the Committee's terms of reference. The Committee expressed concern about 'the growing social stress that must be arising from the fact that a great many young adults, by indulging in a drug which they see as less damaging than alcohol, run the risk not only of involvement with the criminal law, but also have the prospect of ruined careers' [33](New South Wales 1978, p76). The report and the Committee's earlier Memorandum to the New South Wales Parliament recommended that:

• personal use of cannabis no longer be a criminal offence;
• first offenders be given bonds and probation and on successful completion of these, all records be expunged; and
• penalties for trafficking in cannabis be severe.

The next major inquiry was the Australian Royal Commission of Inquiry into Drugs (Williams Royal Commission). Its multi-volume report was released in 1979. Rather than considering the degree of harm produced by different drugs, the Williams Royal Commission took the view that cannabis was not a harmless drug because it produced an intoxicating effect. It concluded that removal of prohibitions against cannabis would depart from the intention and spirit of the Single Convention on Narcotic Drugs, have a 'domino effect' in that it would stimulate calls for the relaxation of prohibitions on other drugs, and send a signal to the community that drug use was acceptable.

The Williams Royal Commission recommended that consideration of relaxation of prohibitions on cannabis not occur for 10 years, during which time information about the drug and its use would be collected by National and State Drug Information Centres. Although the Commonwealth government set up a National Drug Information Centre, the State and Territory centres were not established - making the review recommended by Williams impossible.

Like the Baume Committee report that preceded it, the report of the South Australian Royal Commission into the Non-Medical Use of Drugs (the Sackville Royal Commission) prompted little government response to its recommendations. In relation to cannabis, the Commission dismissed the progression theory and remarked that where cannabis users also consumed other illicit drugs, this was due to the illegal status of cannabis itself.

The Committee made wide-ranging recommendations, including the repeal of the offence of use or administration of drugs, and the establishment of drug assessment and aid panels. Some of its most radical proposals related to cannabis and cannabis resin. It recommended that 'cultivation [of cannabis] for personal use, use in private and small-scale gratuitous distribution in private to adults ...[should] not be a criminal offence ... No distinction ... [should] be made between cannabis and cannabis resin, but cannabis oil ... [should] remain subject to a policy of total prohibition' ([34]South Australia 1979, p375).

The Commission found no evidence to 'support the view that cannabis [was] associated with a tendency towards aggression and violent crime' ([35]South Australia 1979, p51). In addition, the Commission questioned some of the psychological and physiological ill effects attributed to cannabis, such as amotivational syndrome and psychosis (though it concluded that there was some small risk of brain damage). In general, it did not dramatise the possible adverse effects of cannabis use, recognising the existence of equivocal research findings and insufficient data.

The next major Australian inquiry which touched on cannabis was the investigation by the Parliamentary Joint Committee on the National Crime Authority which reported in 1989. Its terms of reference included the scope and nature of the trade in illegal drugs, the efficacy of law enforcement, and the costs and efficacy of prohibition. It concluded that: 'If the aim of the policy [of prohibition] was to reduce the use of prohibited substances, or even to minimise access to them, it has clearly failed' (Australia 1989, p92), And it concluded that 'should the latest initiatives fail to make any significant inroads on the market then it would be appropriate to consider some relaxation of the present prohibitionism as an alternative policy' (p123). Before concluding this section, a number of recent inquiries into drugs should be mentioned.

In 1991 the ACT Legislative Assembly Select Committee on HIV, Illegal Drugs and Prostitution tabled its report on Marijuana and Other Illegal Drugs. The focus of the report was on the 'effectiveness of the current legal and social controls on drug taking, with particular reference to marijuana' [36](Australian Capital Territory 1991, p1). Proceeding from a belief in harm minimisation and the view that drug use can never be completely eliminated, the Committee recommended that:

• possession of up to 25g of cannabis no longer be an offence;
• possession of more than 25g of cannabis and less than 100g of cannabis attract a fine of $150;
• possession of more than 100g of cannabis should incur a penalty of $5,000 or two years imprisonment, or both;
• cultivation of five cannabis plants should no longer be an offence; and
• there should be no offence of self-administration in respect to cannabis.

Another recent inquiry into illicit drugs was undertaken by the New South Wales Legislative Council's Standing Committee on Social Issues. However, at the date of writing, the Committee's report had not been completed and there have been suggestions that it will not be (Symonds 1992). In South Australia, a Legislative Council Select Committee on the Control and Illegal Use of Drugs of Dependence has been established. Among other things it has been charged with reporting on the effectiveness of current drug laws in controlling drug trafficking, the costs of enforcing anti-trafficking laws and the social impacts of criminal activity flowing from illicit drug use and trafficking. In Queensland, an Advisory Committee on Illicit drugs was established in the aftermath of the Fitzgerald Committee of Inquiry into Possible Illegal Activities and Associated Police Misconduct. The Committee made cannabis the subject of its first discussion paper for a number of reasons. Among these were the fact that cannabis is the most widely used illicit drug and the illicit drug having the greatest impact on the criminal justice system. The Committee is now seeking submissions on 'preferred legislative, enforcement and social responses to the issues of cannabis use and production' [37](Queensland 1993, p3).