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.