Chapter 20 - Public Policy In Other Countries - Australia

Decriminilization in Australia[1][190]

While the National Drug Strategy provides a general framework for responses to drug problems, drug offences and the associated penalties in Australia are a matter of state and territorial jurisdiction. Some Australian states and territories have adopted cannabis decriminilization measures while others have not.

The first Australian jurisdiction to adopt cannabis decriminilization measures was South Australia. The Cannabis Expiation Notice (CEN) scheme came into effect in South Australia on 30 April 1987. Under this scheme, adults coming to the attention of police for "simple cannabis offences" could be issued with an expiation notice. Offenders were able to avoid prosecution by paying the specified fee or fees (ranging from AUD $50 to AUD $150) within 60 days of the issue of the notice. Failure to pay the specified fees within 60 days could lead to prosecution in court, and the possibility of a conviction being recorded. Underlying the CEN scheme is the rationale that a clear distinction should be made between private users of cannabis and those who are involved in dealing, producing or trafficking in cannabis. This distinction was emphasized at the introduction of the CEN scheme by the simultaneous introduction of more severe penalties for offences relating to the manufacture, production, sale or supply of all drugs of dependence and prohibited substances, including offences relating to larger quantities of cannabis.

The CEN scheme was modified by the introduction of the Expiation of Offences Act, 1996 which now provides those served with an expiation notice the option of choosing to be prosecuted in order to contest being given the notice. Previously those served with a notice had to let the payment of expiation fees lapse in order to secure a court appearance to contest the notice. In choosing to be prosecuted, however, people issued a notice have their alleged offence converted from one which can be expiated to one which still carries the possibility of a criminal conviction.

The Australian Capital Territory (in 1992) and the Northern Territory (in 1996) introduced similar expiation schemes. Victoria implemented a system of cautions for minor cannabis offenders in 1998 and Western Australia has followed with a similar scheme.

In all cases, cannabis possession remains a criminal offence. By their nature, these provisions reduce, as necessary, the prison term in which the possession of small quantities of cannabis for personal use would previously have resulted.[2][191]

Various evaluation studies since conducted have revealed significant savings and reduced negative social impact on persons convicted of minor cannabis offences. None of the studies upon levels and patterns of cannabis use in South Australia[3][192] have found an increase in cannabis use which is attributable to the introduction of the CEN scheme. Cannabis use did increase in South Australia over the period from 1985 to 1995 but this was so throughout Australia, including in jurisdictions with a total prohibition approach to cannabis. In fact, the largest increase in the rate of weekly cannabis use across all Australian jurisdictions occurred in Tasmania, a prohibitionist state.[4][193]

A comparative study of minor cannabis offenders in South Australia and Western Australia concluded that both the CEN scheme and the more punitive prohibition approach had little deterrent effect upon cannabis users. Offenders from both jurisdictions reported that an expiation notice or conviction had little or no impact upon subsequent cannabis and other drug use. However, the adverse social consequences of a cannabis conviction far outweighed those of receiving an expiation notice. A significantly higher proportion of those apprehended for cannabis use in Western Australia reported problems with employment, further involvement with the criminal justice system, as well as accommodation and relationship problems.[5][194]

In the law enforcement and criminal justice areas, the number of offences for which cannabis expiation notices were issued in South Australia increased from around 6,000 in 1987/88 to approximately 17,000 in 1993/94 and subsequent years. This appears to reflect the greater ease with which police can process minor cannabis offences and a shift away from the use of police discretion in giving offenders informal cautions to a process of formally recording all minor offences. Substantial numbers of offenders still received convictions due to their failure to pay expiation fees on time. This was due in large part to a poor understanding by cannabis users of the legal consequences of not clearing expiation offences and due to financial difficulties. Most CENs are issued for less than 25g of cannabis and half of all CENs issued were received by people in the 18- to 24- year-old age group.[6][195]

The scheme has proven to be relatively cost-effective and more cost-effective than prohibition would have been. The total costs associated with the CEN scheme in 1995/96 were estimated to be around AUD $1.24 million while total revenue from fees and fines was estimated to be around AUD $1.68 million. Had a prohibition approach been in place, it is estimated that the total cost would have been around AUD $2.01 million, with revenue from fines of around $1 million.[7][196]

A report on the CEN scheme[8][197] noted that it appeared to have numerous benefits for the community, not the least of which were cost savings for the community as a whole, reduced negative social impacts for offenders, and greater efficiency and ease in having minor cannabis offences dealt with, associated with less negative views of police held by offenders. Yet the rate of expiation of notices has remained low, compared with other types of infringement notices, at around 45%.