Foreword

1. An excellent summary of several Australian commission reports can be found in McDonald D, et al. Legislative options for cannabis use in Australia. 3. National Drug Strategy Monograph No. 26, AGPS, Canberra, 1994.

Section 1

1. The National Commission on Marihuana and Drug Abuse, Marihuana: A Signal of Misunderstanding. Washington, DC: 1972.
2. United Nations Committee on Crime Prevention and Control at its Fourth Session in Geneva, as reported to the Economic and Social Council of the United Nations in October 1976. Quoted in Smith DM, "International implications of ‘decriminalization’ (depenalization) of marijuana possession.’ Department of Justice, Ottawa, Canada, 23 August 1979.
3. Those states were Alaska, California, Colorado, Maine, Minnesota, Mississippi, Nebraska, North Carolina, Ohio, Oregon, and South Dakota.
4. The Alaskan chronology is complicated. In 1975 the Alaska Supreme Court ruled that the right to privacy enshrined in the Alaskan Constitution allowed adults to use and cultivate a limited number of cannabis plants. In 1990, under pressure from the Bush Administration, a citizens' referendum was passed re-imposing criminal sanctions on cannabis use and cultivation. However, in 1993 a Superior Court judge ruled that the 1990 anti-cannabis law was unconstitutional, and that only a constitutional amendment could re-criminalise the personal use and cultivation of cannabis. See "Judge Rejects Anti-Pot Law", Anchorage Daily News, November 17, 1993, p.1.
5. MacCoun R, Reuter P, Schelling T. Assessing alternative drug control regimes. J Policy Analysis Management 1996; 15: 330-352, at p.332. The systems discussed are total prohibition, available only to health professionals for limited use (e.g., cocaine), available for maintenance of addicts (e.g., methadone), available on prescription (e.g., Valium), available to licensed adults (theoretical system), available to adults who have not violated conditions of eligibility (theoretical system), adult market (e.g., alcohol), and free market (e.g., caffeine). The theoretical systems were drawn from Kleiman M, Neither prohibition nor legalization: grudging toleration in drug control policy. Daedalus 1992: 121: 53-83.
6. McDonald D, Moore R, Norberry J, Wardlaw N, Ballenden N. Legislative options for cannabis use in Australia. National Drug Strategy Monograph No. 26, AGPS, Canberra, 1994.
7. South Australia. Royal Commission into the Non-Medical Use of Drugs. Cannabis: A Discussion Paper. Adelaide, 1978.
8. This addition was made to incorporate The Netherlands’ policy, which since 1976 has formally declined to prosecute cannabis sale and related activities provided they meet strict regulations, and despite these activities remaining illegal (largely to meet international treaty obligations; see Section 3). The New South Wales government recently announced it would no longer jail people for possession of cannabis ( Sydney Morning Herald 12 July 1997), a form of expediency principle.
9. Alaska and Spain have formally adopted this model; Italy has adopted it de facto.
10. NCMDA, supra note 1.
11. McDonald D, Atkinson L, eds. The Social Impact of Legislative Options for Cannabis in Australia. Canberra: Australian Institute of Criminology, 1995.
12. Victoria. Premier’s Drug Advisory Council. Drugs and Our Community. Melbourne, 1996.

Section 2

1. MacCoun R, Reuter P, Schelling T. Assessing alternative drug control regimes. J Policy Analysis Management 1996; 15: 330-352, at p.332.
2. McDonald D, Atkinson L, eds The Social Impact of Legislative Options for Cannabis in Australia. Canberra: Australian Institute of Criminology, 1995.
3. Morrison S, McDonald D. A comparison of the social impacts of the legislative options for cannabis and their enforcement: an overview of the literature. (Working Paper No. 1 of "The social impact of legislative options for cannabis in Australia"; supra note 11, Section 1). Canberra: Australian Institute of Criminology, 1995.
4. Ibid, pp 24-25. Indented material is quoted but abridged. Note that the extent to which the first two dot points apply in New Zealand is uncertain because (1) probably most cannabis is obtained from friends and (2) convictions for simple possession of cannabis are not known to have "devastating" effects on educational or occupational opportunities in New Zealand.
5. http://www.minvws.nl/drugnota/0/index.htm
6. In addition to French president Jacque Chirac, officials in the United States and Germany have also complained about the Dutch system.
7. "Clark Gives Marijuana View" The Dominion (Wellington): 19 Sept 1996, p.2. The final paragraph of this story provides an example of the confusion regarding the term "decriminalisation", as discussed in Section 1: "She said she did not support full decriminalisation, but thought a system of it being a civil offence might be appropriate."
8. In California, by contrast, considerable savings was demonstrated following substitution of a civil-penalty system in 1976. (Aldrich MR, Mikuriya T. Savings in California marijuana law enforcement costs attributable to the Moscone Act of 1976: A Summary. J Psychoactive Drugs 1988; 20: 75-81.) The reason for this discrepancy is not known.
9. McDonald & Atkinson, supra note 2.
10. "Net widening involves offenders and others who would not normally come to the attention of the courts being referred to programs established to provide interventions for offenders. Police and others see the potential benefits of the diversion program and are more inclined to refer to the program than they are to charging offenders. In this way the "net" cast by the system as a whole is widened and the system ends up dealing with higher numbers than before the diversion program was available." Quoted from The Alcohol and other Drugs Council of Australia. Best Practice in the Diversion of Alcohol and other Drug Offender: Proceedings of the ADCA Diversion Forum, Canberra, Oct 1996, at p.20.
11. Ibid.
12. Ibid. See also The Alcohol and other Drugs Council of Australia. Case Studies in the Diversion of Alcohol and Other Drug Offenders: A Preliminary Report. Canberra, 1996. The six case studies included the William Booth Institute (Salavation Army, NSW) and the Northern Territory Sobering Up Shelter.
13. New Zealand Police. Pre-Trial Diversion, 27 Sept 1994.
14. McDonald D, Atkinson L, supra note 2.
15. Near-equivalent systems, less often cited as examples of "decriminalisation" than are South Australia and ACT's systems, are used in Victoria and the Northern Territory. As noted in the 1994 AIC report (supra note 6): "The [Victorian] Drugs, Poisons and Controlled Substances (Amendment) Act 1983 set the maximum penalty for possession of less than 50g of cannabis at $500. In addition, s76 of the Act empowered magistrates to award an adjourned bond in certain circumstances in the case of an offence of possession of up to 50g of cannabis. No conviction could be recorded in the case of a first offender. Section 76 applies only to cannabis, not to other drugs, and it does not apply to trafficking offences in respect of any drug." In the Northern Territory, police issue "infringement notices" for 1 or 2 cannabis plants or up to 50g of plant material. Offenders are charge $200, which if unpaid does not result in a court appearance, but rather is regarded as simply an unpaid det to the state, recoverable in the normal ways. See NT Misuse of Drugs Act at the AustLII web site: www.austlii.edu.au, under Part IIB Infringement Notices and Schedule 3.
16. Crown Law Office: Prosecution Guidelines for Crown Solicitors, Dec 1992, para 1.6., quoted in supra note 13.
17. For example, "No hard and fast rules on particular categories can be set. Each case must be examined individually and considered on its merits. There will be cases when, the legal description of the offence, or the penalty for the offence may appear relatively serious but when taken in the context of their facts they are not serious." Supra note 22, at 3.1.c., "Offence Not Serious." Underlining in original.
18. Morrison S, McDonald D, supra note 3; p.12. 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 - inability to pay - is one reason for the low expiation rate." Quoted from McDonald and Atkinson, supra note 2, at p.16.
19. McDonald and Atkinson, supra note 2, at p.16.
20. Victorian Drug Advisory Council, Drugs and Our Community. Melbourne, 1996..
21. Section references are to the Drugs Poisons and Controlled Substances Act 1981, which the Council recommended be amended.
22. Victoria Drug Advisory Council report, supra note 20, pp. 130-1.
23. Morrison & McDonald, supra note 3, p. 13.
24. Gieringer D. Economics of Cannabis Legalization. Washington DC: National Organization for Reform of Marijuana Laws, 1994.
25. Victoria Drug Advisory Council, supra note 20.
26. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General . Model Criminal Code, Chapter 6, Serious Drug Offences, Discussion Paper, June 1997. Canberra.
27. Provided by Peter Watney, ADLRF treasurer.
28. Anecdotally we understand that a substantial cannabis trade takes place amongst clientele at pubs; pub-owners would likely welcome being able to bring that trade "behind [rather than in fromt of] the counter." However, the principle of separating cannabis and alcohol consumption discussed in Section 3 would mitigate against pubs as an outlet.
29. It was recently revealed that the Canadian government has discussed taxating cannabis under a legal market. - "Health officials discussed taxing legal marijuana", The Ottawa Citizen,9 Jul 1997.
30. Elliott's pot push vow" The Advertiser (South Australia), 11 July 1997, p.6.
31. However, less formal methods appear to have achieved this goal in the Netherlands.
32. This latter point was dramatically illustrated recently by negotiations between the tobacco industry and the United States Government, in which the industry agreed to accept substantial restraints on sale (e.g., no vending machines) and on advertising, as well as paying hundreds of billions of dollars toward health care costs produced by tobacco smoking. Imagine such negotiations taking place between governments and gangs concerning the rules of cannabis commerce!
33. Morrison and Atkinson Supra note 2, p.7.
34. Based on limited anecdotal data available to the Forum, we estimate that the farmer is paid about half the street value of cannabis. The "risk premium" charged by black market distributors is substantially higher than what a legitimate distributor would charge.
35. Decreases are more likely to the extent rural cannabis growers currently receive income support¾ which would often be discontinued if legal income from cannabis cultivation were permitted.
36. Gieringer, supra note 24.

Section 3

1. So named because it incorporated and replaced several previous treaties.
2. A third treaty, the Convention on Psychotropic Substances 1971, is not directly relevant as it deals with synthetic THC, the major psychoactive ingredient in cannabis, while deferring consideration of cannabis to the Single Convention.
3. Interestingly, the Single Convention excludes cannabis leaves and seeds from the provisions of the treaty, defining cannabis as the "flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops" (Art 1, s -para 1(b)). This exclusion may have been in deference to the use of cannabis leaves in medicinal preparations in certain countries, such as India.
4. Article 36, s-para 1(a)..
5. Smith DM, "International implications of 'decriminalization' (depenalization) of marijuana possession.' Department of Justice, Ottawa, Canada, 23 August 1979.
6. Lande A. 1973, p.128, cited in Smith, supra note 5, p.A-5.
7. Office of the UN Secretary General, Commentary on the Single Convention on Narcotic Drugs 1961. Geneva, 1973, p.112.
8. Noll, 1977, p.44, cited in note 2.
9. Ibid, pp.44-45.
10. Smith, supra note 5, p.A-5. "The Third Draft of the Single Convention, which served as the working document for the 1961 Plenipotentiary Conference, contained a paragraph identical to that which now appears as article 36, subparagraph 1(a). This paragraph was included in a Section entitled "Measures Against Illicit Traffickers," but the format by which the Third Draft was divided into Sections was not transferred to the Single Convention, and this, apparently, is the sole reason why this Section heading, along with all others, was deleted. (See United Nations, 1973;112) Article 36 is still located in that part of the Convention concerned with the illicit trade, sandwiched between article 35 ("Action Against the Illicit Traffic") and article 37 ("Seizure and Confiscation")."
11. Australian Royal Commission of Inquiry into Drugs (Williams Royal Commission). 1980 Report, Book C, AGPS, Canberra.
12. Final report. Commission of Inquiry into the Non-medical Use of Drugs (Gerald LeDain, Chairman), 1972.
13. South Australia. Royal Commission into the Non-Medical Use of Drugs. Cannabis: A Discussion Paper. Adelaide, 1978.
14. The National Commission on Marihuana and Drug Abuse, Marihuana: A Signal of Misunderstanding. Washington, DC: 1972.
15. Ibid.
16. UN Commentary, supra note 7.
17. McDonald D, Moore R, Norberry J, Wardlaw N, Ballenden N. Legislative options for cannabis use in Australia. National Drug Strategy Monograph No. 26, AGPS, Canberra, 1994.
    65-20 Victoria Drug Advisory Council, Drugs and Our Community. Melbourne, 1996.
18. As noted above, Italy and Spain have actually adopted partial prohibition regimes, including legal small-scale cultivation.
19. Victoria Drug Advisory Council, Drugs and Our Community. Melbourne, 1996 at p. 111.
20. Note the inconsistency of this provision (with its focus on cannabis leaves) with the definition of cannabis in Article 1A; supra note 3.
21. As noted by Smith, supra note 5, "The [UN] Economic and Social Council then decides whether the proposed amendment is to be considered at a special conference or circulated to the parties for their acceptance and comments. If the latter route is chosen, the amendment comes into force eighteen months after its circulation, so long as no party has rejected it. If it is rejected by any party, the Council, in light of comments received from the parties, may still decide to call a conference to consider the proposed amendment. (See art. 47.)"
22. McDonald et al., supra note 17.
23. Victoria Drug Advisory Council, supra note 19, p.29.

Section 4

1. Ringwalt CL, et al. Past and Future Directions of the D.A.R.E. Program: An Evaluation Review. Research Triangle Institute, September 1994. Prepared for the U.S. National Institute of Justice, Office of Justice Programs, U.S. Department of Justice.
2. Hansen, W.B. School-based substance abuse prevention: A review of the state of the art in curriculum, 1980-1990. Health Education Research 1992; 7: 403-430.
3. Davey J, Dawes G. What is deviant: A comparison of marijuana usage within Aboriginal & Torres Strait Islander & white Australian youth subcultures', Youth Studies Australia 1994; 13(1):49-52.
4. Morrison S, McDonald D. A comparison of the social impacts of the legislative options for cannabis and thier enforcement: an overview of the literature. (Working Paper No. 1 of "The social impact of legislative options for cnnabis in Australia). Canberra: Australian Institute of Criminology, 1995, at pp.18-19.
5. U.S. Department of Transportation, National Highway Traffic Safety Administration. Marijuana and Actual Driving Performance". DOT HS 808 078, Final Report, November 1993, p.107.
6. U.S. Department of Transportation, National Highway Traffic Safety Administration. Incidence and Role of Drugs in Fatally Injured Drivers. Final report, October 1992.
7. Ibid, pp. 99-100. *Williams AF, Peat MA, Crouch DJ, et al. Drugs in fatally injured young male drivers. Public Health Reports 1985; 100: 19-25.
8. Logan BK. Drug and Alcohol Use in Fatally Injured Drivers in Washington State. Seattle: WA: Washington State Toxicology Laboratory, Department of Laboratory Medicine, University of Washington, 1994.
9. Soderstrom CA, Triffilis AL, Shankar BS, Clark WE, Cowley RA. Marijuana and alcohol use among 1023 trauma patients. Arch Surg 1988; 123: 733-737.
10. Mason AP, McBay AJ. Ethanol, marijuana and other drug use in 600 drivers killed in single-vehicle crashes in North Carolina 1978-1981. J Forensic Sci 1984; 29: 987-1026.
11. Gieringer, DH. Marijuana, driving, and accident safety. J Psychoactive Drugs 1988; 20: 93-101.
12. Drummer O. Drugs in Drivers Killed in Australian Road Accidents: The Use of Responsibility Analysis to Investigate the Contribution of Drugs to Fatal Accidents. Victorian Inst. Of Forensic Pathology, Monash Univ., Melbourne, 1994.
13. Alcohol and other Drugs Council of Australia. Cannabis Discussion Paper 1993: An Analysis of Responses. ADCA, Canberra, 1993.
14. Morrison & McDonald, supra note 4, p.17.
15. Tests for cannabis can remain positive for several weeks after last use.
16. The Transport Act 1962 makes it an offence to operate a vehicle while being under the influence of any drug (including over-the-counter and prescription drugs) to such an extent as to be incapable of exerting proper control over the vehicle.
17. Experience has reportedly shown that the preferred forms of cannabis contain about 8 percent THC.
18. Which may explain why no black market has developed for dronabinol, the synthetic form of THC prescribed in some countries (including the United States!) for various medical problems.
19. Which in any case have come into the picture primarily as a result of prohibition policies, which always produce a market for more concentrated and dangerous forms of drugs, e.g., crack cocaine.

Appendix A

1. Physical withdrawal symptoms are not seen with cannabis, probably because certain components of cannabis remain in the body for days to weeks after last use.
2. McDonald D, Atkinson L, eds. The Social Impact of Legislative Options for Cannabis in Australia. Canberra: Australian Institute of Criminology, 1995.
3. Engelsman, E.L. (1989), 'Dutch Policy of the Management of Drug-Related Problems', British Journal of Addiction 84:211-218
4. van Vliet, H.J. (1990), 'The Uneasy Decriminalisation: A Perspective on Dutch Drug Policy', Hofstra Law Review 18(1989-90):717-750.
5. Wardlaw, G. (1992), 'Discussion' in M. Bull, D. McDowell, J. Norberry, H. Strang & G. Wardlaw, Comparative Analysis of Drug Strategy, NCADA Monograph Series No. 18, AGPS, Canberra.
6. Reuter, P. (1987), 'What impasse? A Skeptical View', Nova Law Review 11(3):1025-1040.
7. van Vliet, supra note 4.
8. Cohen, P. (1988), 'Building Upon the Successes of Dutch Drug Policy', The International Journal on Drug Policy 2(2):22-24.
9. Kleiman, M.A.R. & Saiger, A.J. (1989-90), 'Drug Legalisation: The Importance of Asking the Right Question', Hofstra Law Review 18:527-565.
10. Reuter, supra note 6.
11. Sarre, R., Sutton, A. & Pulsford, T. (1989), Cannabis: The Expiation Notice Approach, Report Series C, No. 4, June, Office of Crime Statistics, South Australian Attorney General's Department, Adelaide.
12. Christie, P. (1991), The Effects of Cannabis Legislation in South Australia on Levels of Cannabis Use, Monitoring Evaluation and Research Unit, South Australian Drug and Alcohol Services Council, Adelaide.
13. Carr, R.R. (1975) 'Oregon's Marijuana Decriminalisation: One Year Later', Intellect, December, p. 235-236.
14. Suggs, D.L. (1981), 'A Qualitative and Quantitative Analysis of the Impact of Nebraska's Decriminalisation of Marijuana', Law and Human Behaviour 5(1):45-71.
15. Johnston, L, O'Malley, P. & Bachman, J. (1981), Marijuana Decriminalisation: The Impact on Youth 1975-1980, Institute for Social Research, Univ of Michigan, Ann Arbor.
16. Vallance, T.R. (1993), Prohibition's Second Failure Praeger, Westport, CT.
17. McGeorge, J. (1994), The Effects of the Decriminalisation of Cannabis on Patterns of Use Among University Students, Thesis, Dept of Criminology, Univ. of Melbourne, Melbourne.
18. Bowman, J. & Sanson-Fisher, R. (1994), Public Perceptions of Cannabis Legislation, National Drug Strategy Monograph No. 28, AGPS, Canberra.
19. Budman, K.B. (1977), A First Report of the Impact of California's New Marijuana Law, State Office of Narcotics and Drug Abuse, Sacramento.
20. Reuband, K.H. (1991), Drug Use in Germany and National Policy: A Review of Empirical Evidence, paper presented at the RAND Corporation Conference on American and European Drug Policies: Comparative Perspectives, Washington, DC, 6-7 May.
21. Walters, G.D. (1994), Drugs and Crime in Lifestyle Perspective Sage, California.
22. Erickson, P.G. (1980), Cannabis Criminals: The Social Effects of Punishment on Drug Users, ARF Books, Toronto.
23. Kleiman and Saiger, supra note 9.
24. McDonald and Atkinson, supra note 2, at p24.
25. http://www.minvws.nl/drugnota/0/index.htm
26. Morgan J, Zimmer L. Exposing Marijuana Myths: A Review of the Scientific Evidence (The Lindesmith Center) http://www.soros.org/lindesmith/exposing/index.html
27. The New Zealand Government recently decided against a proposal to make it an offence for people under 18 to buy cigarettes, "saying the proposal could increase peer pressure to start smoking. Associate Health Minister Neil Kirton told Parliament the Government was instead focusing on using education to discourage smoking." (The Dominion [Wellington] 11 July 1997, p.2.) Mr Kirton did not explain why the same logic should not be applied to cannabis.
28. McDonald and Atkinson, supra note 2.
29. Hall, W., Solowij, N. & Lemon, J. The Health and Psychological Consequences of Cannabis Use, National Drug Strategy Monograph No. 25, AGPS, Canberra, 1994.
30. Ministry of Health. Cannabis: The Public Health Issues 1995-1996. Wellington: 1996, at p. 4.
31. Unfortunately, politicians and the media tend to focus on the experiences of this 10 percent subgroup. So much is natural, no doubt, but the prevalence of argumentation based on anecdote in the cannabis arena is nonetheless disheartening.
32. Ministry of Health, supra note 30.
33. Didcott P, Rile D, Scott W, Hall W. Long-Term Cannabis Users. National Drug Strategy Monograph No. 30, AGPS, Canberra, 1997.
34. Sidney S, Tekawa IS, Quesenberry CP, Friedman G. Marijuana use and mortality, Am J Public Health 1997;
35. McFerran LM. Marihuana use in New Zealand; A Microsociological Study. Medical Research Council of New Zealand, 1973, at pp.21-22.
36. Thus alcohol could be considered a "gateway" to cannabis! But the whole "gateway" concept was thoroughly discredited long ago.
37. McFerran, supra note 35, at p.22.
38. Note this is a misleading summary of the evidence; see Section 4 of discussion paper.
39. Te Rananga o Te Rarawa. Cannabis Project Report. June 1995, at pp.22;26.
40. Thies CF, Register CA, Decriminalization of marijuana and the demand for alcohol, marijuana, and cocaine. Soc Sci J 1993; 30: 385-399.
41. DiNardo J, Lemieux T. Alcohol, Marijuana, and American Youth: The Unintended Consequence of Government Regulation," National Bureau of Economic Research Working Paper No. 4212, 1993.
42. Model K, The effects of marijuana decriminalization on hospital emergency room drug episodes 1975-1978. J Am Stat Assoc 1993; 88: 737-747.
43. Passell P. Economic Scene; Less Marijuana, More Alcohol? The New York Times. June 17, 1992, Section D; p. 2.
44. Country singer Willie Nelson recently stated on the television program 60 Minutes, aired in New Zealand, that he would be dead from alcoholism if not for cannabis.
45. The National Commission on Marihuana and Drug Abuse, Marihuana: A Signal of Misunderstanding. Washington, DC: 1972.
46. Hall et al., supra note 29, at p.18.
47. Roth J, Psychoactive Substances and Violence, U.S. Justice Information Center, http://www.ncjrs.org/txtfiles/psycho.txt
48. Tashkin DP. Am J Resp Crit Care Med 1997; 155.
49. Simmons MS, Tashkin DP. The relationship of tobacco and marihuana smoking characteristics. Life Sciences 1997; 56: 2185-2195.
50. Take the extreme case of someone whose only use of tobacco is in combination with occasional cannabis use: that person is a smoker of tobacco only because of cannabis, and his low level of tobacco use makes it appear that cannabis use tends to reduce tobacco use; but if he ever stops the cannabis his tobacco use will go to zero.