Select Committee on Home Affairs Memoranda

Annex C

Legislative Frameworks for Cannabis:


  Mike Ashton, Editor of the Journal "Drug and Alcohol Findings".


    —  Cannabis use has remained relatively unaffected by different legislative frame works.

    —  The efforts of law enforcement in countries that advocate a total ban on the personal use of cannabis has had an insignificant impact, if any at all on levels of cannabis use.2 Indeed, these restrictions may even have led to greater harm with regards to health and social costs.

    —  More liberal policies towards the possession and use of small quantities of cannabis, such as The Netherlands' Expediency Principle and the expiation schemes introduced in South Australia and the ACT, do not seem to have led to increased cannabis use. Such policies do not appear to have had the effect of signalling approval of cannabis use, nor of increasing the availability of the drug. It is unlikely that the option of partial prohibition would produce substantially different results with regards to cannabis consumption.

    —  Regulation has the potential drawback of signifying approval, while totally free availability may increase the nation's cannabis use to some small degree.

    —  The important point is that cannabis legislation does not seem to impact upon cannabis consumption in any significant way.

    —  A survey of drug use trends in Europe revealed that cannabis use has been declining since the early to mid-1970s, and seems unrelated to the type of control regime in place on specific countries.3 North American research also demonstrates fairly conclusively that legal sanctions do not deter or inhibit future illegal drug usage.4

    —  With regards to minimising the harm associated with cannabis it is the opinion of many commentators that the harm caused by legislation prohibiting personal cannabis use outweighs the harm caused by the drug itself. Furthermore, restrictions on advertising and sensitive education campaigns have been found to be effective ways of minimising the harm associated with alcohol and tobacco. Similar techniques would seem to be possible with regards to cannabis and it may be a much more effective strategy than employing the "strong arm of the law".


  1.  In addressing cannabis use there are numerous legislative options available to policy makers ranging from total prohibition to free availability. This paper discusses the impact (both actual and potential) of cannabis legislation upon cannabis use, the community and the law enforcement sector.

  2.  At the outset it is important to state that the arguments presented here apply to the control and effects of cannabis and should not be generalised to other drugs. The evaluations made regarding the impact of cannabis legislation stem from empirical research findings rather than moral arguments for or against cannabis use and cannabis legislation.

  3.  The majority of studies into cannabis use fail to mention the impact of current legislation on patterns and results of cannabis use, let alone considering the potential impact of other legislative options. A few studies do focus on differing legislative approaches to cannabis but most of this literature limits itself to comparing the total prohibition of the United States, with the total prohibition with an expediency principle of the Netherlands, thus precluding legislative options not already practised.

  4.  This working paper examines the results of the full cross section of possible legislative frameworks for cannabis.


  5.  Six legislative options are evaluated in this study:

    —  Total prohibition (with no expediency principle) whereby the use, possession, cultivation, importation, sale and distribution of any amount of cannabis are criminal offences. Most Western counties follow this policy. Thus, most of the available literature and research on cannabis has been derived from the context of total prohibition.

    —  Total prohibition (with an expediency principle) is where laws exist prohibiting the possession and production of cannabis but when the amount involved is small, guidelines dictate that the laws need not be enforced. This policy exists in the Netherlands.5

    —  Prohibition with civil penalties is where the use and possession and cultivation of small quantities of cannabis for personal use invoke civil sanctions rather than criminal ones. The South Australian Cannabis Expiation Notice scheme, introduced in 1987, and the Simple Cannabis Offence Notice scheme introduced in the Australian Capital Territory in 1992, are examples of this option and will be outlined below.6 Spain also follows this model. During the 1970s 11 US states7 enacted laws whereby the possession of small quantities of marijuana was reduced from a felony offence to a misdemeanour. Despite Alaska having re-criminalised minor cannabis offences in 1990, many commentators regard some of the US cannabis laws as primarily symbolic and believe that de facto decriminalisation (ie prohibition with civil penalties) remains in many states.8

    —  Partial prohibition is where it is not an offence (civil or criminal) to use cannabis or to possess or grow it in quantities judged appropriate for personal use. Italy, while not adopting this option in theory, does not regard possession or cultivation of small quantities of cannabis criminally punishable.

    —  Regulation is where the production, distribution and sale of cannabis are control led to a greater or lesser extent by government agencies (activities relating to personal use would therefore not be penalised). Some degree of regulation of cannabis exists in Holland whereby hemp products are sold through youth centres and coffee shops under certain clearly defined conditions. A regulatory regime applies to tobacco, alcohol and many pharmaceutical products in many countries.

    —  Free availability would mean the absence of any legislative or regulatory restrictions on the cultivation, importation, sale, supply, possession or use of cannabis. This approach is not practised in any country at present.

  6.  Of course, many variations on these models are possible. For instance, should the partial prohibition or regulation option be adopted, prohibition may still apply to persons under 18 years of age. Use of cannabis in public places or preparation of concentrated forms of cannabis could remain illegal. Also, advertising bans may still apply, regardless of whether the sale, use and cultivation of cannabis became legal. The precise details of the legislation would depend on the particular policy goals decided upon and within each legislative option there is considerable room for manoeuvre.


  7.  The categories investigated in researching this paper were: patterns of consumption; health consequences; law enforcement and legal issues; economic factors; driving behaviour; public attitudes; education and employment; leisure and lifestyle; self-identity; family and community relations; and young people. Wherever possible, the discussion is based on empirical findings. Where this is not possible (as a result of some of the legislative options not having been enforced) the likely impact is surmised.

  8.  It is not the purpose of this discussion to document in detail the consequences of cannabis use on physical and mental health, as this topic has received extensive coverage elsewhere. Suffice to say that the findings of the most recent authoriative review9 concluded that cannabis use has not been found to produce health effects any more harmful that that of legal drugs such as alcohol and tobacco and certainly not compared to crack or heroin. Evidence suggests that cannabis is not highly dependence-producing and most studies have identified a decline in cannabis consumption since the late 1970s.10

  9.  Most nations agree that cannabis use should be discouraged or, at least, not encouraged. This study therefore attempts to assess the impact of legislative changes on levels of cannabis use as well as identifying the other results of differing legislative frameworks.


  10.  Although certainly not the most important factor when addressing cannabis legislation, costs of enforcement, other economic factors and their resulting social impacts are a factor that policy makers should consider. It is also important to note that many of the non-monetary (ie social) burdens of cannabis laws stem directly from the monetary costs they precipitate.


  11.  The financial cost to the community due to the regime of total prohibition stems, largely, from the enforcement of cannabis legislation. In Australia, for example, a conservative estimate of all illicit drug law enforcement costs for the financial year 1991-92 amounted to $450 million of which some $329 million (or 73 per cent) were for cannabis law enforcement.11 This is estimated to be around 13 per cent of the total yearly expenditure on Australian police, courts and prisons.12

  12.  Evidence suggests that law enforcement and criminal justice costs are far higher than economic losses due to the adverse effects of drugs in general, and cannabis in particular.13

  13.  It must also not be forgotten that a portion of the economy enters into the black market in cannabis every year. American consumers were estimated to have spent US $8.3 billion on cannabis during 1990 while the equivalent Australian expenditure is thought to have been around A $1.9 billion.14 This lost revenue is harmful not only to the community but also to the individual who is paying a high price for cannabis from the black market.15 The only section of the community to benefit from the current trade in cannabis is the organised crime syndicates and other dealers and traffickers involved in the black market. Accumulation of wealth among these groups is obviously to be avoided. Apart from the loss in taxes, prosperous organised crime groups, like legitimate businesses, have the potential to grow and to become involved in other, more lucrative, ventures that may be more damaging to society than supplying cannabis.


  14.  The introduction of an expediency principle would be likely to result in a greatly reduced economic burden to the criminal justice system. In The Netherlands, for instance, substantial savings have been made to law enforcement and criminal justice budgets as a result of not having to process large numbers of cannabis offenders. However, many of the other negative financial aspects of total prohibition would remain. Individual users may still pay inflated prices for cannabis and those dealing in the drug could continue to avoid paying taxes for cannabis-related income and maintain the organised crime links.


  15.  The introduction of civil penalties for personal use and cultivation of cannabis may also provide some savings to the criminal justice system although part of those assets would have to be re-directed to fund the new scheme. In the United States when civil penalties were introduced for small scale cannabis use, significant savings in terms of law enforcement costs were observed. For example, in California the legislative changes were reported to have produced savings in cannabis law enforcement of US $62 million per annum (in 1986 dollars) over the 1976-85 period.16

  16.  On the other hand South Australia did not make significant savings (though this may have been due to testing results too early). In order to understand the dynamics of legislative changes, it is necessary to take into account differences in attitudes towards cannabis laws by law enforcement agents.17 Research is required to establish the opinions and reactions of law enforcement personnel (eg police officers, magistrates, judges, probation officers) towards the various legislative options for cannabis.


  17.  The introduction of partial prohibition would avoid the economic cost to society associated with personal use of cannabis, possession and cultivation of small quantities of the drug at the same time as limiting the costs, both financial and social, imposed on individual users. While the black market in cannabis would also be substantially reduced, it is unlikely that it would disappear altogether under this option.


  18.  To end the black market for cannabis, regulation or free availability may be necessary (although some say that even under these conditions the black market is unlikely to vanish altogether)18. These two options would certainly result in substantial savings to the law enforcement and criminal justice budgets, supplemented by taxes charged on cannabis products and, in the case of regulation, revenue derived from licence fees for growers, distributors and retailers. Conservative estimates suggest that legalisation of the American cannabis market may produce up to US $9.09 billion in tax revenue.19

  19.  A regulated system is not however without cost and even a "free availability" option incurs costs of implementing and enforcing regulations from licensing premises and age minimums to banning advertising. The cost of enforcing new regulations needs to be compared to the cost of enforcing the old ones and it should not be assumed that decriminalisation of cannabis would result in savings proportionate to current drug law enforcement spending.


  20.  In summary, the current regime of total prohibition practised by most Western countries is undoubtedly the most expensive option, in monetary terms, to enforce. While more liberal laws would generally result in law enforcement and criminal justice savings, it may not result in vast savings as any form of legislation is likely to incur some costs. Economic considerations should clearly not form the basis for cannabis policy and other social costs of the different legislative options must take precedence.

  21.  Despite this, the economic factors must be considered in the cost benefit analysis of the various legislative options for cannabis. Implemented efficiently, any of the options other than total prohibition are likely to correspond with significant fiscal savings.


  22.  As highlighted in the introduction most states see cannabis consumption as a practice they want to discourage or at least not encourage. With this in mind the key area for consideration is the effect of cannabis legislation on patterns of cannabis consumption.


  23.  As most countries practice the total prohibition option for cannabis, most of the data produced from studies on cannabis consumption are derived from this context. The prohibition model views drug use as a criminal rather than a social problem and is based upon the tradition of deterrence theory.20 In other words, the threat of legal sanction is presumed to deter individuals from partaking in behaviour regarded by society to be undesirable.21 Despite laws against cannabis use having been in place for most of the 20th century, most studies show that over one third of the population of Western countries have used cannabis at least once. Clearly, the aim of eliminating (or significantly marginalising) cannabis use through a total legislative ban of the substance has failed resoundingly. Furthermore, there is considerable evidence to show that even very substantial increases in law enforcement activity alter neither availability of, nor consumption levels of, cannabis to any significant degree.22 While deterrence is one of the main aims of total prohibition it is noteworthy that the threat of legal sanctions has been shown to play a very minor part in the decision-making of cannabis consumers.

  24.  It is also true that strict legislation banning the use of cannabis may have several undesirable effects such as more technology-intensive methods of cultivation, the use of dangerous fertilisers23, an increase in the potency of the cannabis produced, and more harmful methods of consumption.24 Thus, prohibition would appear to have an adverse effect on aspects of cannabis supply while doing little to alter levels of demand.

  25.  Although the rate of cannabis experimentation is high, it is not as high as that of the legal drugs alcohol and tobacco. Understandably, fears exist that liberalisation may inflate levels of use of the drug and, subsequently, increase the amount of harm associated with it. In order to inform the debate on the legislative options for cannabis it is important to evaluate the potential impact of more liberal legislation upon cannabis consumption.


  26.  In The Netherlands, where total prohibition is encased in an administrative expediency principle, no significant increases in drug use25 or changes in patterns of use have been identified,26 and there may even have been a decline in cannabis use.27

  27.  This option may also lead to users adopting safer methods of consuming cannabis. For instance, when restrictions are removed from the sale of water pipes, fewer users consume cannabis in cigarette papers, which is the form of consumption most damaging to the lungs.28

  28.  An additional aspect of the Dutch drug policy is the availability, with impunity, of treatment for users wishing to reduce or abandon drug use which helps explain the considerably higher levels of drug users accessing treatment in Holland vis-á-vis countries like the US.29 Some argue that total prohibition and subsequent involvement in the criminal justice system affords access to those individuals whose drug use is particularly dysfunctional.30 This may be a reasonable position to take with regards to drugs with a high dependence-production propensity, but not in the case of cannabis. Furthermore, some of the reform options still afford some sanctions regarding cannabis use, albeit less harsh than those stemming from total prohibition, therefore it is still likely to advance contact with those demonstrating problematic drug use. It is also questionable whether treatment administered through the criminal justice system is as effective as individuals self-referring to treatment.


  29.  In South Australia, where possession and cultivation of small quantities of cannabis for personal use are dealt with by civil sanctions rather than criminal ones, the data does not indicate an increase in cannabis use.31 NCADA Australian household drug use survey data covering the period 1985-1993 indicate that, although there have been increases in self-reported cannabis use in South Australia, similar increases occurred in other states where there have been no changes in the legal status of personal cannabis use.

  30.  In the United States, where 11 states decriminalised the use of marijuana during the 1970s, either no significant increases in marijuana use were detected after decriminalisation32 or, where increases did occur, they were no greater than those that arose in states in which no changes in cannabis legislation had taken place.33

  31.  The evidence also suggests that far from individuals not appreciating the law reform (a suggested reason for the lack of increase in cannabis use) many people following reform wrongly believed cannabis had been legalised.34 If there is a wide-spread misunderstanding surrounding the legal status of cannabis, it is remarkably encouraging that the extent of cannabis use has remained relatively constant.

  32.  Considerable evidence also exists to support the notion of a "saturation level" for marijuana use among both youths and adults, which may not change drastically over time, least of all as a result of implementation of more lenient marijuana laws. These findings support the theory that participation in cannabis consumption is more strongly associated with social factors (such as personality, lifestyle and social learnings) than with legal ones.


  33.  Little data is currently available with which to evaluate the potential effects of partial prohibition upon patterns of cannabis consumption, despite a small number of countries having followed this model.

  34.  Should partial prohibition be introduced it might be hypothesised that a similar situation to when an expediency principle exists would arise (or indeed, to when all penalties are erroneously believed to have been removed). Correspondingly, this situation provides little cause for alarm with regards to changes in cannabis consumption.

  35.  Nevertheless, greater availability of the drug could make access easier to a greater number of young people. This could result in more people experimenting with cannabis earlier than they would have done otherwise (if at all).

  36.  It has also been suggested that increased access to cannabis may actually reduce the demand for more harmful illegal drugs (ADCA 1993b). When local supplies of cannabis dry up, perhaps as a result of law enforcement seizures, there may be a consequent increase in demand and supply of other illegal drugs, including heroin, amphetamine, LSD and ecstasy.


  37.  Greater visibility of the drug in retail outlets may act as a form of advertising exposing more people (and in particular, more young people) to the temptation to experiment. Fears exist that this move would also send a tacit message that the community approves the use of harmful drugs. However, the legalised status of nicotine, alcohol and psychoactive drugs available on prescription does not send that message. Clearly regulation would have to be accompanied by an effective education campaign.

  38.  Regulation may also break the linkage between cannabis and other illegal drugs, thereby disrupting the link between the cannabis market and the market for other illegal drugs. The probability of progression onto other illicit substances may therefore lessen.35

  39.  It is also reasonable to assume that following regulation, cannabis may replace alcohol as the drug of choice among a segment of society. Should this occur, then the total damage to individuals and society may possibly be less, as the medical (and social) risks associated with alcohol have been shown to outweigh those of cannabis.36 On the other hand, it is clear that the impairment caused by alcohol and cannabis, taken in combination, is particularly marked and has serious implications for road safety.37


  40.  It is likely that the free availability option, by virtue of the increased accessibility of the drug, would result in some increase in cannabis experimentation, particularly if alcohol and tobacco continued to be controlled through government regulation.

  41.  This might be particularly so if cannabis advertising were permitted and the costs of cannabis fell; these features may well encourage use or more harmful patterns of use. It is however unlikely that even this option would see a massive change in patterns of cannabis use.


  42.  In summary, it is clear that cannabis use has remained relatively unaffected by different legislative frameworks.

  43.  The efforts of law enforcement in countries that advocate a total ban on the personal use of cannabis has had an insignificant impact, if any at all on levels of cannabis use.38 Indeed, these restrictions may even have led to greater harm with regards to health and social costs.

  44.  More liberal policies towards the possession and use of small quantities of cannabis, such as The Netherlands' Expediency Principle and the expiation schemes introduced in South Australia and the ACT, do not seem to have led to increased cannabis use. Such policies do not appear to have had the effect of signalling approval of cannabis use nor of increasing the availability of the drug. It is unlikely that the option of partial prohibition would produce substantially different results with regards to cannabis consumption.

  45.  Regulation has the potential drawback of signifying approval, while totally free availability may increase the nation's cannabis use to some small degree.

  46.  The important point is that cannabis legislation does not seem to impact upon cannabis consumption in any significant way.

  47.  A survey of drug use trends in Europe revealed that cannabis use has been declining since the early to mid-1970s, and seems unrelated to the type of control regime in place in specific countries.39 North American research also demonstrates fairly conclusively that legal sanctions do not deter or inhibit future illegal drug usage.40

  48.  With regards to minimising the harm associated with cannabis it is the opinion of many commentators that the harm caused by legislation prohibiting personal cannabis use outweighs the harm caused by the drug itself. Furthermore, restrictions on advertising and sensitive education campaigns have been found to be effective ways of minimising the harm associated with alcohol and tobacco. Similar techniques would seem to be possible with regards to cannabis and it may be a much more effective strategy than employing the "strong arm of the law".


  49.  There are numerous legislative frameworks and variations on these frameworks that policy makers can employ to deal with cannabis use. No framework is a perfect one and all will have unintended consequences, what is clear however is that;

  50.  Total Prohibition utterly fails in its main aim to eliminate or significantly marginalise cannabis use. It is the most costly of all options and generates massive income for organised crime. It also leads to more harmful practices of using cannabis and can increase the effect of cannabis as a gateway through to other more harmful drugs. It criminalises otherwise law-abiding citizens and deprives the state of significant taxation revenues.

  51.  Total Prohibition with an Expediency Principle has not led to an increase in cannabis consumption (perhaps even a fall) and saves the state considerable funds previously spent on law enforcement. Less harmful use of cannabis proliferates and people with problem drug use are more likely to get treatment (this is also true for all further options). The cannabis market does however remain in the black market with a criminal element remaining.

  52.  Prohibition with Civil Sanctions has also not led to a rise in cannabis use. Law enforcement savings are not as great as possible as the new sanctions come with associated cost implications. Citizens are no longer criminalised for cannabis use but there is the potential for net widening. Cannabis remains in the black market.

  53.  Partial Prohibition may produce a very small increase in cannabis use as the availability increases, the increase in use would not be significant. Increased cannabis use may also lead to reduced demand for other more harmful illegal drugs and would remove individual users completely from the criminal system and further reduce the gateway effect of cannabis. The criminal element to some cannabis supply would remain and although law enforcement costs would be significantly cut they would not be abolished.

  54.  Regulation due to the greater visibility and availability of drugs this option may also lead to a small increase in cannabis use. Regulation would however remove cannabis from the black market and severe the link with organised crime. It would also enable the state to gain significant revenue through taxation, to direct how cannabis is used and exclude at risk groups (such as minors), as well as producing better harm information. Regulation may also mean cannabis replaces alcohol as a choice drug for some sectors of society with resulting decreases in harm to health and society. This option may also lead to a decrease in demand for other illegal drugs. Some law enforcement costs will remain in enforcing regulatory rules but these will be small compared to possible taxation revenue.

  55.  Free Availability would once again increase cannabis use by a small amount and if totally unregulated may lead to more harmful practices and an impact on at risk groups. It would have similar effects as regulation in terms of ending the black market, breaking the link with crime, replacing alcohol as a drug of choice for some groups and decrease demand for other drugs. It would also end costs associated with cannabis law enforcement.

  56.  None of the above options is flawless, however, clearly there are some options that are more effective than others. Legislation has a minor impact (if any impact at all) on levels of cannabis use. Legislation does however have a big impact on; the black market, criminalisation and organised crime, cannabis as a gateway, access to treatment, law enforcement costs, methods of use and the social harm of cannabis.

  57.  It is up to policy makers to balance aims, objectives and harms and decide which legislative option to pursue. It is however clear that any of the options outlined would be preferable to the status quo.


  58.  A key aim of the 1987 amendments was to sharpen the distinction between adults who could be seen as "private" producers and/or consumers of cannabis and those who were larger scale operators. Only the former—alleged to have committed acts defined under the law as "simple" cannabis offences—were to be issued with an expiation notice, and could not be proceeded against in court (unless they failed to pay the relevant fine within the prescribed period). However, penalties for persons deemed by nature of their offence to be larger scale producers or dealers were significantly increased.

  59.  When the Cannabis Expiation Notice Scheme (CENS) was first introduced, the activities defined as simple cannabis offences which could be expiated were as follows:

    —  possessing up to 100 gms of cannabis (with possession of less than 25 gms attracting a lesser fine);

    —  possessing up to 20 gms of cannabis resin (with possession of less than 5 gms attracting a lesser fine);

    —  consuming cannabis in private;

    —  cultivating "small numbers of cannabis plants for non commercial purposes"; and

    —  possession of equipment for consuming cannabis.

  60.  This offence and penalty structure remains essentially the same in 1998. However, the cultivation provisions were amended in the Regulations Under the Controlled Substances Act 1984 (No. 188 of 1990) to make the permissible limit for expiation "up to 10 plants" rather than relying on the non-specific phrase "small numbers for non commercial purposes".


  61.  Significant studies include early monitoring of the expiation notice system by South Australia's Office of Crime Statistics41 and by the South Australian Drug and Alcohol Services Council42, and a series of reports commissioned by the National Task Force on Cannabis. This research clarified some questions, but also disclosed problems with CENS which had not been anticipated, as well as leaving other matters still to be addressed.

  62.  The Office of Crime Statistics' review43 was based mainly on police records on offenders detected and notices issued. It found nothing to support the view that rates of cannabis use in South Australia had increased significantly after introduction of the expiation approach. There also was no evidence of more experimentation by "at risk" groups (eg teenagers) or in "at risk" locations (eg schools). The study did, however, disclose a major anomaly in the way CENS was taking effect. Most (about 55 per cent of) people issued with notices for simple cannabis offences were not expiating the fine within the required period. They were being prosecuted and, in addition to incurring a conviction and fine, were having to pay substantial court costs and a "victims of crime" levy.

  63.  Drug and Alcohol Services Council (DASC) research44 had access to high school, national and other survey research on trends in cannabis use. Its tentative conclusion was that patterns of consumption in South Australia had not been affected by the introduction of expiation notices. Results from a longer term review45 also have confirmed that increases in rates of cannabis use in South Australia are consistent with changes in the rest of the country.

  64.  One major unintended consequence of CENS which was disclosed by DASCs 1991 study relates to "net widening". Simplified procedures have rendered police far more likely than previously to take action against people found to be possessing, using or cultivating small amounts of cannabis. Christie and Ali46 point out that between 1987-88 and 1993-94, the number of cannabis offences dealt with under the CEN System went from 6,200 to over 17,000: almost a three fold increase. Clearly, introduction of CENS in South Australia seems to have undermined law enforcement officers' willingness to exercise discretion in relation to minor cannabis offending—an effect which would appear inconsistent with legislators' intentions but which has persisted to the present. One of the tasks for the present study has been to explore reasons for this.

  65.  Other studies commissioned by the National Task Force on Cannabis have concentrated on exploring the Australian public's understanding of, and attitudes towards, cannabis laws, documenting the harms associated with long-term use, and assessing legislative options. Some findings—for example, that higher percentages of residents in jurisdictions which have introduced expiation now incorrectly believe that possession, cultivation or use of small amounts of cannabis is legal47—are consistent with concerns expressed by opponents of a CENS approach. Task Force reviews also have confirmed that chronic use of cannabis products can result in both psychological dependency and other significant health problems—particularly if it is smoked.48 Overall, however, this national inquiry has found that public opinion about on the reform of cannabis laws in Australia seems to be shifting, with the majority (52-55 per cent) of the population now favouring some form of decriminalisation.49 Moreover after reviewing legislative options, an Australian Institute of Criminology-based team has concluded that cannabis expiation notice schemes have gone:

  ". . . a long way towards achieving their goals and meeting the criteria for effective drugs policy . . . This option takes account of the different patterns of use and harms relating to cannabis, compared with other drugs. The policy and legislative development has been accompanied by attention to the details of implementation, rather than being expressed in general terms only. It reflects an understanding of the patterns of harm associated with cannabis, recognising that much of the harm relates to the patterns of enforcement of the cannabis legislation, rather than the use of the drug itself. The approach is realistic and goals attainable, focusing on minimising the negative impact of users on cannabis-related involved in the criminal justice system, along with producing society-wide benefits in terms of lessening the financial costs to the criminal justice system".50

  66.  Significantly, the Institute's expert group was of the view that simply legalising small scale cannabis cultivation, possession and use—the policy option which many reform advocates portray as the most clear cut and "honest"—still was not viable. Recent experience in Victoria, where the Parliament has emphatically rejected an expert advisory committee's recommendation that some cannabis-related activities no longer be classified as offences,51 further validates this conclusion.

  67.  While expiation remains the most viable reform on political grounds, few would argue that, from a criminal justice perspective, it has been without anomalies and ambiguities. Some apparent problems disclosed in previous studies, such as the comparative severity of court costs and other penalties incurred by non expiators, now seem to have been addressed.52 Others, such as net widening, remain.

  68.  Reviewing police intelligence and other reports, moreover, it is clear that classification of small scale cultivation as an expiable offence continues to cause problems. As mentioned earlier, one purpose of this inclusion was to provide a means whereby cannabis users could be insulated from markets controlled by "hard core" criminal networks. However, drafting a set of words which adequately reflects this intention has been difficult. Over time, the original formulation—"small number for non-commercial purposes"—was found too imprecise and in 1990 was amended to an exact number of plants. Recently, many in the justice sector have been suggesting that the "10 plant limit" itself is being exploited by commercial producers in ways that flout the legislators' intentions.

  69.  "Groups are taking advantage of this system by growing 10 plants at a number of locations and then pooling the harvest to increase the profit. The smaller crops reduce the risk of detection and only attract a $150 fine when discovered. This is prompting a review of the 10 plant limit with a suggested limit of three plants for personal use."53

  70.  Ensuring that CENS remains a workable option has not, it would seem, been without challenges for police and other justice system stakeholders. Research such as ours, which can provide them with an opportunity to speak directly about relevant issues, is timely.


  71.  Through 28 intensive one to one interviews and four focus group discussions, the study obtained intensive feedback from 51 people involved in administration of South Australia's cannabis laws. Respondents included the Chief Justice, the Chief Magistrate, a representative from the Office of the Director of Public Prosecutions, the National Crime Authority, police prosecutors, the officer in charge of the Drug Task Force, Drug Task Force and regional detectives and police patrol officers. Discussions also were held with personnel in the Correctional Services and Attorney-General's Departments.

  72.  Virtually all respondents considered that it would be better for South Australia to continue to issue expiation notices for minor cannabis offences rather than to revert to a system of prosecutions. Reasons for maintaining this view differed, however. Police, who constituted the majority of interviewees, put emphasis on the convenience and cost-effectiveness of CENS. Issuing a notice eliminated time spent on court attendance, and also significantly reduced administrative burdens associated with storage of court exhibits. Individual users still could be deterred by being given notices on several different occasions.

  73.  By contrast, members of the judiciary and others respondents working outside the enforcement system tended to favour expiation because it provided a way for users to avoid stigma and other adverse social consequences associated with a court conviction.

  74.  Respondents agreed that expiation had improved police and court efficiency. However quite a number of police argued that there also had been some unintended consequences. In particular, Drug Task Force and regional detectives argued that individuals and syndicates may be exploiting provisions which specified that cultivation of up to 10 plants should be dealt with by means of an expiation notice. In their view, the advent of hydroponics and techniques for cloning female plants meant that it was possible for commercial crops to be grown, while staying within the 10 plant limit. Some respondents argued that organised crime had become involved in co-ordinating small scale cultivations. When requested, the Police Department and the National Crime Authority produced intelligence-based evidence that this was occurring. The Director of Public Prosecution's Office confirmed that it would be difficult to prosecute successfully individuals or groups conspiring to exploit the CEN system by organising small cultivations in several different locations.

  75.  Respondents who were members of the judiciary or from the Office of the Director of Public Prosecutions could not see any cause for major change to legislation or regulations. Several police—particularly those in the Drug Task Force or working on drug-related special investigations or as regional detectives—argued that the maximum number of plants for which a CEN could be received should be reduced from 10 to three or four. They argued that the legislators clearly intended that notices should only be issued in instances where cannabis was being cultivated for personal use. People cultivating cannabis for this reason should not require more than three or four plants.

  76.  Respondents from the law enforcement sector stated that introduction of the expiation system seemed to have caused some confusion within the general public. A number of people detected possessing, using or cultivating small quantities of cannabis now were under the impression that this was legal. Police and other justice officials demonstrated good understanding of technical aspects of the new laws. However operational law enforcement officers were reluctant to contemplate exercising discretion in the issuing of notices (for example, only issuing a CEN if this was likely to achieve some public benefit), and had not thought about ways of using expiation notices to reshape cannabis markets (for example, to drive out organised crime elements by flooding some locations or groups with notices).


  77.  From reviewing law enforcement and other criminal justice attitudes and practices the general conclusion is that, despite initial opposition from the Police Association and some concerns expressed by the Police Department, the expiation notice approach now enjoys general support. One major source of concern was that, because cultivations of up to 10 plants to be dealt with by means of expiation, some individuals and groups may be exploiting the system for commercial purposes.

  78.  One way of dealing with this problem may be to reduce to three or four the number of plants for which a notice can be issued. Alternatively, police could give consideration to improving intelligence systems, so that individuals or groups exploiting the CEN system for commercial purposes could be "driven out of the market" by being served with repeated notices. Jurisdictions which took the latter course would still leave scope for the genuine "amateur" cultivator, who may be unable to obtain sufficient yield from a small number of plants.


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1  This paper is based on a paper compiled by Mike Ashton of Drug and Alcohol Findings from the following two reports:

  I.Shona Morrison and David McDonald. A Comparison of the Social Impacts of the Legislative Options for Cannabis and their Enforcement: An Overview from the Literature. The Social Impact of Legislative Options for Cannabis in Australia. Working Paper No. 1. Australian Institute of Criminology, April 1995.

  II. Adam Sutton and Elizabeth McMillan. A Review of Law Enforcement and Other Criminal Justice Attitudes, Policies and Practices Regarding Cannabis and Cannabis Laws in South Australia. Canberra: Department of Health and Aged Care, May 1998.

2  Nadelmann, 1992.

3  Reuband, 1991.

4  Walters, 1994.

5  Amendments to the Opium Act of 1976 delineated "drugs presenting unacceptable risks" from "cannabis products" and guidelines were issued regarding the enforcement of drug laws. Ultimately, the changes increased penalties for possession and dealing in "drugs presenting unacceptable risks" and decreased the penalties for possession and dealing in cannabis products.

6  The South Australian Cannabis Expiation Notice (CEN) System was introduced in 1987 as a result of a 1986 amendment to the Controlled Substances Act 1984 which introduced civil penalties, in the form of a fine, for possession or use of small amount of cannabis, thus offenders could avoid obtaining a criminal conviction. Non-payment of the fine or where commercial cultivation is suspected may, however, result in criminal charges. A similar, but not identical, expiation scheme was introduced in the ACT in a 1992 amendment to the Drugs of Dependence Act 1989.

7  Those states were Alaska, California, Colorado, Maine, Minnesota, Mississippi, Nebraska, North Carolina, Ohio, Oregon and South Dakota.

8  DiChiara & Galliher, 1994.

9  Hall et al. 1994.

10  Robins, 1984; Bureau of Justice Statistics, 1992.

11  Marks, 1994. In the United States, US $13.2 billion of federal funds for were allowed for in the 1994 National Drug Control Strategy, an increase of $1 billion over the previous year.

12  Barnard & Withers 1989, cited in Marks 1993.

13  Marks, 1993.

14  Vallance, 1993; Sarre, 1994.

15  While black market prices for cannabis are inflated, they are nothing like as high as that for heroin, or indeed, as that of predicted black market prices for tobacco, should it ever become prohibited. This is because the demand for more dependence-producing substances, such as heroin or tobacco, is less elastic than that for cannabis as a result of the presence of habitual users who consume most of these products (Marks 1993).

16  Aldrich & Mikuriya, 1988.

17  Suggs, 1981.

18  Caputo & Ostrom, 1994.

19  Ibid.

20  Makkai, 1994.

21  Cook, 1980.

22  Reuter & Kleiman, 1986.

23  Nadelmann, 1992.

24  Reuter, 1987.

25  It is noteworthy that the rate of dependence on all drugs by Dutch citizens is less than half of the US rate of dependence on heroin alone (Vallance, 1993).

26  Engelsman, 1989; van Vilet, 1990; Wijingaart, 1988a, cited in Wardlaw 1992.

27  Reuter, 1987.

28  Kleiman & Saiger, 1989-90; Reuter, 1987.

29  Vallance, 1993.

30  Wish, 1990.

31  Sarre, Sutton & Pulsford, 1989; Christie, 1991; Donnelly, Hall & Christie in press.

32  Oregon: Carr, 1975; Nebraska: Suggs, 1981.

33  Johnston et al. 1981; Vallance 1993.

34  McGeorge, 1994.

35  DrugScope; "Cannabis and the Gateway Hypothesis", 2001.

36  eg Cuskey et al. 1978

37  Hall et al. 1994.

38  Nadelmann, 1992.

39  Reuband, 1991.

40  Walters, 1994.

41  Sarre et al. 1989.

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