Proposal to De-criminalise Recreational Cannabis Use in Australia

In Australia there is a metaphorical ‘war on drugs’ that has failed comprehensively and as a result there is an ever-increasing level of support for the movement for drug reform.[1] There are a plethora of drug offences that relate to cannabis and a variety of statutory doctrines covered by both Commonwealth and State Law which assist in the prosecution of drug offences. The following report includes an overview of drug offences in NSW with a focus on cannabis. As well as an examination of policy issues associated with the criminalisation of recreational cannabis and potential risks and benefits related with alternative legal frameworks, in addition to a recommendation relating to the decriminalisation of cannabis.

Drug Offences:

The drug offences covered under the Drug Misuse and Trafficking Act 1966 (NSW) (DMTA) include use, possession, supply, trafficking, cultivation and manufacturing of prohibited plants and drugs as well as aiding and abetting and taking part in offences involving prohibited drugs and/or plants. These laws apply to cannabis as the substance is a prohibited drug as specified in Schedule 1 of the DMTA and is a prohibited plant as outlined in s 3. Additionally, cannabis is a poisons and can be found under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW), cannabis is a Schedule Nine substance and therefore is a substance which may be misused or abused and the manufacture, possession, sale and/or use is prohibited by law’[2]

Under s 40 of the DMTA the ‘deemed drug’ provision, makes it an offence to attempt to supply or misrepresent a legal substance as an illicit drug e.g. representing parsley as cannabis. The definition of supply in s 3 makes the offence complete upon making the offer contrary to whether supply eventuates or whether there was an intention to supply is irrelevant. Under s 29 of the DMTA where a person is found to be in possession of a certain amount of a prohibited drug it is assumed that they are a drug trafficker, for cannabis leaf this weight is 300grams and the onus falls on the accused to prove otherwise. Traffickable offences also include possession of prohibited plants (s 23) and supply of prohibited drugs (s 25) as outlined in the DMTA and carry fines of 2,000 penalty units and/or 10 years imprisonment. DMTA prohibits the manufacture, supply, possession and/or use of prohibited drugs including cannabis. There are a variety of drug offences in NSW. As outlined in Pt 2 Div 1 of the DMTA including possession (s 10) and self-administration (s 12) which are summary offences and mean that an individual is liable for a fine of 20 penalty units and/or 2 years imprisonment (s 21).[3] Under s 11 of the DMTA it is an offence to be in possession of equipment for administration of prohibited drugs. The Poisons and Therapeutic Goods Act 1996 (NSW) also assists in the prosecution of drug offences as it regulates, controls and prohibits the supply and use of different categories of drugs of which cannabis is classified as a drug of addiction thus a prohibited substance under Schedule 9 of the Poisons Act. The above-mentioned statutory doctrines must also coincide with the elements of criminal offences – mens rea and actus reus before a person is found guilty.

Major policy issues

Statutory doctrines and court decisions created to assist in the prosecution of drug offences have contributed to the over criminalisation of drug-related behaviours. Drug policy in NSW is increasingly concerned with promoting approaches to minimise health risks and other harms caused by the use of cannabis and other legal and prohibited drugs.[4] There are a number of practical and ethical policy issues that are associated with the criminalisation of cannabis. Many policy issues arise regarding harm minimisation through ‘therapeutic’ criminalisation and harm minimisation. This includes the Cannabis Cautioning Scheme (CCS) which was introduced in 2000 and is a formal cautioning of adult offenders detected for minor offences relating to cannabis. As well as the Medicinal Cannabis Compassionate Use Scheme (MCCUS) which allows police to use their discretion as whether or not to caution terminally ill patients.[5]

Other policy issues that arise as a result of criminalisation include a lack of medical supervision inevitably leading to the spread to preventable disease, overdose deaths, adulterated substances, drug related violence, distraction of police resources. ‘Prohibition is counterproductive — it causes significant harms additional to those resulting from drug use’ instead of funding for health and social services funding is diverted to law enforcement, prosecution and incarceration.’[6]  There are concerns as to criminalisation over targeting many low risk offenders such as those dealt with under the CCS.[7] This encroaches on users feelings of personal and financial security as it is often low level offences that are being dealt with pushing users further into poverty.[8] There is a slow movement in Australia to decriminalise cannabis however the CCS is a ‘punishment so disproportionate, because even if you end up having no real penalty you have a charge, the impact on employment opportunities and family can be lifelong.’[9] The purpose of criminalisation is often questioned and policy is concerned as whether there are benefits to criminalisation or whether criminalisation is implemented as it is a highly visible “solution” to real and perceived harms and risks associated with the recreational use of cannabis.[10] The framework is increasingly utilised as it can be enacted quickly, is visible and is often correlated with a strong government. It is a common opinion that the NSW Government are contradicting their actions and intentions between attempting to criminalise cannabis while minimising the harms associated with drug use which is supported by Tadeh Karapetian’s statement ‘the Government’s objective of minimising harm has been undermined by the criminalisation policy, through the stigmatisation of cannabis users, the preservation of the black market, the limitations of diversion schemes and the restriction of medicinal use.’ [11]

Recently, the Court of Criminal Appeal in NSW, extended criminal liability for drug offences, fortunately, the High Court prevented on over reaching prosecution attempts to extend criminal liability in drug offences. In the case of Burns v The Queen the High Court found that unlawfully supplying a drug to someone does not ‘by itself, form the basis for unlawful and dangerous act manslaughter’.[12]  However, if supplying a drug did amount to manslaughter, over criminalisation would occur. As a result, users and suppliers would be more reluctant to call authorities for assistance for fear of being penalised and the criminal justice system would be over-exhausted and burdened as a result.[13] 

It is estimated that Australians spend over $7 billion on cannabis annually, this is a concern for the Government as they are losing out on a potential revenue stream by criminalising cannabis use.[14] The National Drug Strategy Household Survey 2013 found that the recent use of cannabis in NSW dropped from 16.7% in 1998 to 9.5% in 2013, this is a concern for policy makers as it cannot be concluded that the ‘data does not support the notion that a criminalisation policy is more effective in preventing cannabis use.’[15] While the current policy criminalises the use of cannabis, policy is gradually de-criminalising cannabis and central to the policy debate is the belief that cannabis is a ‘gateway drug’ that raises concerns as to what other drugs users may be exposed to if cannabis is de-criminalised.[16]

Alternative Legal Frameworks

A national drug policy has been implemented in Australia since 1985 and accepts that the eradication of illegal drug use is not achievable. Instead it aims to minimise harm by reducing demand and supply.[17]There are multiple different legal frameworks the govern the use and supply of drugs:

Depenalisation means drug use and possession carry lighter criminal penalties, whilst drug supply remains a criminal offence.[18] A benefit of this framework is that drug supply is still illegal which may assist in reducing the amount of cannabis that is supplied to users. Another benefit is that users are able to use the drug with a lesser penalty which may deter some users. Conversely, due to the lesser penalty, users may use cannabis rather than a drug that has harsher penalties. This will be detrimental to the government as they will be spending money in order to assist in imposing lighter penalties such as offering drug education and treatment services.[19]

Decriminalisation results in drug use and possession no longer carrying criminal penalties but are replaced with civil penalties. Those who use or possess drugs may still be charged especially if fines are not paid or attending assessments are not complied with.[20] The supply of drugs is still a criminal offence. Many politicians are concerned that the decriminalisation of cannabis would ‘send the wrong message.’[21] Additionally, researches have supported this argument, arguing that ‘removing criminal penalties would lead to increased drug use, with harms falling hardest on the deprived communities that are already the most damaged by drug-related problems.’[22] Conversely, research undertaken in Sweden has shown that ‘as a result of decriminalisation, drug use does not increase among existing or new users, but reduces demand on, and the cost of the criminal justice system.[23] There may be reductions in problematic drug use, drug-related HIV and AIDS, deaths and reduced social costs of responding to drugs.[24] However, the way decriminalisation is implemented may affect the extent of net-widening which is an increase in the number of people arrested or charged.[25]

Legalisation: the use and supply of cannabis is legal.[26] Approximately one in four Australians (26%) believe that the recreational use of cannabis should be legal.[27] The biggest risk is that supplying the drug is legalised. This makes it difficult to control the risks and harms associated with cannabis. Many people may abuse the legalisation of cannabis and treat it as a “gateway drug” to harsher and riskier drugs. It may result in reducing black market and criminal networks associated with cannabis drug trading, shift in responses and funding from the police and the criminal justice system towards heath, treatment and education programs. The taxes raised from the legalisation of cannabis could be used for the benefit of the community. By legalising cannabis there may be a significant increase in drug use, based on the harms and costs associated with legal drugs such as alcohol and tobacco.

Recommendation

It is essential that Governments recognises that they cannot strictly control the behaviour of citizens.[28] In response to the War on Drugs, the government needs to consider ending ‘the criminalization, marginalization and stigmatization of people who use drugs but who do no harm to others’ and ‘Encourage experimentation by governments with models of legal regulation of drugs to undermine the power of organized crime and safeguard the health and security of their citizens.’[29] The civil penalty applicable to minor cannabis offences creates fairness and justice as it is a more proportionate response. As a result, criminal justice resources will be freed up and civil penalties will generate a revenue for the NSW Government.

‘The only way to achieve goals of rational drug policy is to replace black market for drugs with form of legal availability under highly regulated system’, this means that the NSW government should adopt the non-commercial model which is popular in Uruguay, and allows the government to retain control over the production and sale of cannabis.[30] There should be a minimum age purchase such as 21 in the case of Colorado or 18 in Uruguay.[31] The drug should be purchased through pharmacies, with there being a limit on how much can be purchased per month as well as the purity, what forms it can be sold, the training and responsibilities of suppliers, education about the drug and much more.[32]

Conclusion

As a result of the ineffective ‘war on drugs’, there has been a global movement for drug law reform.[33] Former Victorian police commissioner Ken Lay, has explained that ‘you can’t arrest your way out of this problem’, showing the need for the NSW Government to reconsider the drug policy in regards to the recreational use of cannabis.[34] The key drug offences and major policy issues associated with the recreational use of cannabis is over criminalising and as a result placing strain on law enforcement and users. The government needs to be more concerned with harm minimisation rather than prohibition because ‘drug law enforcement has had little impact on the Australian drug market.’[35] In conclusion, with the application of sensible and reasonably strict criteria the decriminalisation of cannabis for recreational cannabis would benefit the NSW justice system, users and the community.

Bibliography

A Articles/Books/Reports

Australian Institute of Health and Welfare, Australian Government, Alcohol & other drug treatment services (2018) <https://www.aihw.gov.au/alcohol-and-other-drugs/ndshs>

Caitlin Hughes and Alison Ritter, A Summary of Diversion Programs for Drug and Drug-Related Offenders in Australia (2008) National Drug and Alcohol Research Centre <https://ndarc.med.unsw.edu.au/sites/default/files/ndarc/resources/16%20A%20summary%20of%20diversion%20programs.pdf>

Cannabis legalisation: what model for regulation? (7 December 2017) Alcohol and Drug Foundation <https://adf.org.au/insights/cannabis-legalisation/>

Centre for Medicinal Cannabis Research and Innovation, Review of the Medicinal Cannabis Compassionate Use Scheme (2016) NSW Government <https://www.medicinalcannabis.nsw.gov.au/patient-access/medicinal-cannabis-compassionate-use-scheme/review>

Conrad, Chris, Hemp for Health: The Medicinal and Nutritional Uses of Cannabis Sativa (Healing Arts Press, Rochester, 1997)

Drug Programs and Initiatives (2018) NSW Government <https://www.police.nsw.gov.au/crime/drugs_and_alcohol/drugs/drug_pages/drug_programs_and_initiatives>

Featherston, James, Simon Lenton, Effects of the Western Australian Cannabis Infringement Notice Scheme on Public Attitudes, Knowledge and Use: Comparison of Pre- and Post-Change Data (2007) National Drug Research Institute Curtin and Curtin University of Technology

Hari, Johann, About Drug Policy Australia (2018) Drug Policy Australia <https://www.drugpolicy.org.au/>

Hall, Wayne, Pacula Liccardo, Rosalie, Cannabis Use and Dependence: Public Health and Public Policy (The Press Syndicate of the University of Cambridge, 2003)

Hughes, Caitlyn, Alex Stevens, ‘What Can We Learn From The Portuguese Decriminalization of Illicit Drugs?’ (21 July 2010) The British Journal of Criminology

Gettman, Jon, Top 10 Marijuana Policy Issues For 2018 (2 January 2018) High Times <https://hightimes.com/culture/marijuana-policy-issues-2018/>

Gotsis, Tom, Chris Angus and Lenny Roth, Illegal Drug Use and Possession: Current Policy and Debates (Briefing Paper No 4, NSW Parliamentary Research Services, 2016)

Featherston, James, Simon Lenton, Effects of the Western Australian Cannabis Infringement Notice Scheme on Public Attitudes, Knowledge and Use: Comparison of Pre- and Post-Change Data (2007) National Drug Research Institute Curtin and Curtin University of Technology

Lee, Nicole, Alison Ritter, Australia’s Recreational Drug Policies Aren’t Working, so What are the Options for Reform? (2 March 2016) The Conversation <https://theconversation.com/australias-recreational-drug-policies-arent-working-so-what-are-the-options-for-reform-55493>

Mostyn, Ben, Helen Gibbon and Nicholas Cowdery, The Criminalisation of Drugs and the Search for Alternative Approaches  ‘24(2)’ Criminal Justice

State Library New South Wales, Drug Laws in NSW (29 October 2015) http://legalanswers.sl.nsw.gov.au/drugs-and-law-hot-topics/drug-laws-nsw

State Library New South Wales, Drug Offences (1 October 2016) <http://legalanswers.sl.nsw.gov.au/law-handbook-your-practical-guide-law-nsw/drug-offences>

Stephen Odgers, Editorial: Drug Law Reform (2014) 38(6) Criminal Law Journal

Karapetian, Tadeh, Criminalisation of Cannabis in New South Wales: Is Harm Minimisation Going Up in Smoke? (2017) University of New South Wales Law Journal Student Series 17

B Cases

Burns v The Queen [2012] HCA 35

C Legislation

Drug Misuse and Trafficking Act 1985 (NSW)

Poisons and Therapeutic Goods Act 1966 (NSW)

[1] Ben Mostyn, Helen Gibbon and Nicholas Cowdery, The Criminalisation of Drugs and the Search for Alternative Approaches ‘24(2)’ Criminal Justice, 265.

[2] Poisons and Therapeutic Goods Act 1966 (NSW)

[3] Drug Misuse and Trafficking Act 1985 (NSW)

[4] Johann Hari, About Drug Policy Australia (2018) Drug Policy Australia <https://www.drugpolicy.org.au/>

[5] Centre for Medicinal Cannabis Research and Innovation, Review of the Medicinal Cannabis Compassionate Use Scheme (2016) NSW Government <https://www.medicinalcannabis.nsw.gov.au/patient-access/medicinal-cannabis-compassionate-use-scheme/review>

[6] Mostyn, above n 1, 265.

[7] Tadeh Karapetian, Criminalisation of Cannabis in New South Wales: Is Harm Minimisation Going Up in Smoke? (2017) University of New South Wales Law Journal Student Series 17.

[8] Ibid.

[9]Caitlin Hughes and Alison Ritter, A Summary of Diversion Programs for Drug and Drug-Related Offenders in Australia (2008) National Drug and Alcohol Research Centre <https://ndarc.med.unsw.edu.au/sites/default/files/ndarc/resources/16%20A%20summary%20of%20diversion%20programs.pdf>

[10] Tom Gotsis, Chris Angus and Lenny Roth, Illegal Drug Use and Possession: Current Policy and Debates (Briefing Paper No 4, NSW Parliamentary Research Services, 2016) 19.

[11] Karapetian, above n 9.

[12] Burns v The Queen [2012] HCA 35.

[13] Mostyn, above n 7,264

[14] Ibid.

[15] Ibid.

[16] Wayne Hall, Rosalie Liccardo Pacula, Cannabis Use and Dependence: Public Health and Public Policy (The Press Syndicate of the University of Cambridge, 2003) 4.

[17]Gotsis, above n 12.

[18] Ibid.

[19] Ibid.

[20] Lee, above n 18, 26.

[21] Caitlin Hughes, Alex Stevens, ‘What Can We Learn From The Portuguese Decriminalization of Illicit Drugs?’ (21 July 2010) The British Journal of Criminology ‘50(6)’ <https://academic.oup.com/bjc/article/50/6/999/404023>

[22] Ibid.

[23] James Featherston, Simon Lenton, Effects of the Western Australian Cannabis Infringement Notice Scheme on Public Attitudes, Knowledge and Use: Comparison of Pre- and Post-Change Data (2007) National Drug Research Institute Curtin and Curtin University of Technology 50-62.

[24] Lee, above n 18, 26.

[25] Ibid.

[26] Ibid.

[27] Australian Institute of Health and Welfare, Australian Government, Alcohol & other drug treatment services (2018) <https://www.aihw.gov.au/alcohol-and-other-drugs/ndshs>

[28] Karapetian, above n, 9.

[29] Mostyn, above n 1, 262.

[30] Stephen Odgers, Editorial: Drug Law Reform (2014) 38(6) Criminal Law Journal, 335.

[31] Ibid.

[32] Ibid.

[33] Mostyn, above n 1, 269.

[34] Lee, above n 18, 26

[35] Ibid.