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Major Studies of Drugs and Drug Policy
Legislative Options for Cannabis - Australian Government

Chapter 7. Conclusion

This paper has addressed the legislative options available for cannabis in Australia, and has argued that choosing from among these options requires a process of policy evaluation. Accordingly, the paper first considered the policy frameworks within which decision-making occurs, emphasising the necessity for clarity in the goals that society seeks to attain through legislating in this area.

The paper places contemporary Australian cannabis legislation within its broader context: historical and international. Despite the work of numerous Royal Commissions and other official inquiries, much of Australia's legislation concerning cannabis reflects the dynamics of earlier times, when Australia tended to mimic other nations' policies without taking sufficient account of local circumstances. Our framework of legislative prohibition was put in place at a time when there was virtually no cannabis use in Australia. In the 1990s, when over four million Australians report having used the drug and nearly half of them report having done so during the last year, most jurisdictions maintain total prohibition as their legislative stance, even though only a tiny proportion of the offenders against their legislation will ever be prosecuted.

We have reviewed the range of legislative options available, classifying them as: total prohibition; prohibition combined with a civil penalty for personal use, etc; partial prohibition whereby personal use, etc., is not an offence, but trafficking and large-scale growing of cannabis remains prohibited; the legal availability of cannabis under various forms of regulation; and, finally, the option of unregulated, free availability. Each of these options is reviewed in terms of its rationale, experiences with it to date and its impacts.

The related topics of the diversion from the criminal justice system of people who come to the attention of the police for cannabis offences, and the compulsory treatment of cannabis users, have also been discussed. Experience to date suggests that well-resourced and managed diversionary programs can be effective, and desirable, alternatives to imprisonment for some offenders. Very few cannabis users will need treatment, as conceived of through a medical model, simply because of their cannabis use. Many users can benefit, however, from a helping intervention, the success of which may be potentiated by the crisis of a 'bust' for cannabis use or related offences.

Cannabis is used mainly as a recreational drug and this pattern of use has been the focus of this paper. For completeness, we have included in the appendixes information on the medical and industrial/agricultural uses of the cannabis plant and its by-products. In doing so, we remind readers that, in drug policies, we are not faced with 'all-or-nothing' choices. Within the range of available policy options lies the possibility of prohibiting the recreational use of cannabis while permitting its use for other purposes. (This occurs, of course, with opiates: the opium poppy is grown in Tasmania to provide raw material for the manufacture of pharmaceutical products.)

Australia's National Drug Strategy provides a policy framework within which new legislative approaches may be developed. Both existing and new approaches have the possibility of both enhancing and detracting from the achievement of the mission of the National Drug Strategy, that of minimising the harmful effects of drugs and drug use in Australian society. Our review of the policy options, set out in Chapter 4, demonstrates this.

No single 'best option' for cannabis legislation exists. What is most appropriate will depend upon what goals both policy makers and the community are seeking to achieve. It is not the role of researchers to dictate policy goals; rather we have drawn attention to their importance, outlined an approach to evaluating them and described the likely outcomes, in terms of policy goals, of the five broad categories of legislative options which are available now.

Our review suggests that two of the five legislative options discussed in Chapter 4 are inappropriate in contemporary Australian circumstances. They are the options which we have characterised as 'total prohibition' and 'free availability'. The arguments for rejecting these options will not be repeated here as they are detailed in Chapter 4.

We point out, however, that the cultivation, possession and supply of cannabis remain an offence in all Australian States and Territories (and using it is an offence in most), even though cannabis use is commonplace and little evidence exists that cannabis itself causes significant harm when used in small quantities. Australian society experiences more harm, we conclude, from maintaining the prohibition policy than it experiences from the use of the drug.

Widespread interest exists in the Dutch approach to drug policies. We have categorised them, in this paper, under the heading of total prohibition, as that is the Dutch legislative position. However, as detailed above, the application of the principle that it is, in their terms, 'inexpedient' to prosecute people for minor drug offences (including selling cannabis in certain coffee shops) means that Dutch policy and practice (as contrasted to legislation) is closer to the regulatory option than the total prohibition option. The regulatory option is one of the approaches which we suggest is more appropriate to Australian circumstances than is total prohibition.

It could be argued that the Dutch approach is a product of a different culture and system of administration of criminal justice. If the Australian States and Territories resolve not to arrest and proceed against people using, possessing or supplying cannabis, by far the best approach is for this policy to be implemented through legislation, rather than through an administrative decision not to prosecute cannabis offenders. This is because the Australian system of legal justice is based upon the principle of legal clarity and consistency in the implementation of the law.

Nevertheless, the reality is that, for a variety of reasons, Australian governments may well prefer to implement the Dutch approach. A number of precedents exist whereby, especially in areas of moral contention, certain illegal activities, as a matter of policy, are excluded from the purview of the criminal justice authorities. In the Australian Capital Territory, for example, we understand that the Director of Public Prosecutions publicly announced that he would not conduct any prosecutions in the area of prostitution. Abortion and certain types of gambling (e.g. playing two-up on ANZAC Day) are or were similarly dealt with. Police general orders frequently remind officers of the desirability of exercising their discretion not to arrest or summons a person found committing only a minor offence. Warnings, formal cautions and referral to other agencies are encouraged despite the existence of legislation prohibiting the behaviour involved.

We suggest, then, that if governments agree that total prohibition is not the most desirable approach, but are unwilling or unable to legislate to enable a more preferable option to be implemented, then the Dutch approach is a desirable alternative. It would entail the government, the State/Territory Director of Public Prosecutions, or another appropriate authority declaring that, as from a certain date, no person would be prosecuted before the courts for specified (minor) cannabis offences. We suggest that this is a legitimate, but not optimal, pragmatic option currently available to Australian governments.

We also reject the legislative option found at the opposite end of the continuum from total prohibition, the totally unregulated, free availability of cannabis. Our society is one which accepts that governments and others have both the right and the responsibility to intervene in diverse ways to protect people from harm and to advance the common good. It would be unreasonable, we suggest, to argue that cannabis should be available in an uncontrolled manner: issues of quality control, protection of the young, road safety, etc., demand at least some degree of control over the drug's availability.

We conclude, then, that cannabis law reform is required in this country. Numerous options for policy, legislation and implementation processes exist within the broad categories of prohibition with civil penalties, partial prohibition and relatively free but regulated availability. We believe, on the basis of the available evidence, that widely acceptable social goals, well attuned to the needs of contemporary Australian society, will be attained through the adoption and implementation of policies which lie within these options.


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