The 3 Plant Plan Law Briefing Paper.

Preface

September, 2000.

In June 1999 the South Australian State Liberal government slashed from 10 to 3 the number of plants permitted under the On-the Spot Fine system.

They did this by changing the regulations concerning the states' Controlled Substances Act (1984) rather than by legislation. These changes, the first in over ten years were snuck through Parliament (without debate) and with no community consultation.

Former Deputy Premier Graham Ingerson actually admitted (The Advertiser 18/121997) the Liberal party had kept the changes secret from the SA public at the previous election.

In July 2000 the regulations were disallowed after a vote by the SA Parliament's Upper House, effectively returning the limit to 10.

Despite claims by Health Minister Dean Brown that the disallowance motion signalled a need for compromise and potentially a shift to a 5 or 6 plant limit, Police Minister Robert Brokenshire immediately pushed new regulations through, taking it back down to three again.

Confused? You're not the only one!

The Government's own research shows almost 40% of SA residents think it is legal to grow Cannabis!

The following is a copy of the briefing paper produced and distributed by HEMP SA to MP's and the media prior to the original changes in June 1999.

The HEMP SA Three Plant Plan Briefing Paper

Jamnes Danenberg BA (Hons)

SUMMARY:

This paper examines the current proposal to lower the number of Cannabis plants permissible under the CEN legislation from 10 to three.The paper critiques the proposed changes to SA's laws by drawing on existing studies to highlight the likely social and economic costs. The current South Australian model is compared and contrasted to the Western Australian approach of total prohibiton. The paper includes a discussion on "Hydroponics" and Indoor Growing and presents our view on these controversial topics. The unintended consequences of the Three Plant Plan. including an analysis of who will benefit and who will lose, is also discussed.The paper concludes with a proposal for a more appropriate alternative.

HEMP believes it unlikely there will be a reduction in the numbers of people using Cannabis, the amount of Cannabis grown, sold or exported from South Australian as a result of these changes. This would be a regressive and counterproductive response to the problem perceived by some police of "syndicates exploiting the current legislation".
This plan will simply make things worse.

BACKGROUND:

After extensive research and public consultation, the 1979 Royal Commission into the Non-Medical Use of Drugs, recommended changes to SA's Cannabis laws. suggesting the adoption of a regulated availability model or a "partial prohibition" approach. Don Dunstan's premature retirement however saw an end to the period of reform and the incoming Liberal Government rejected the calls. It took until 1987 for continued lobbying and political pressure to force the Bannon Governement to introduce the Cannabis Expiation Notices (CEN) system (or the "on-the-spot" fines). This move was undertaken in recognition that jailing Cannabis users was inappropriate and out of step with community values.

The previous system had resulted in a clogging of the courts and was an expensive and significant waste of police time and resources. Despite the Australian Institute of Criminology's recommendations for reform in the 1994 NCADA Monograph Legislative Options for Cannabis and the 1995 Legislative Council Select Committee In to Illegal Drugs report urging similar reforms, little has changed legislatively in SA since 1987 despite outcomes for users and the community having worsened. There has been no significant changes to Cannabis usage rates in SA compared to other states, but there has been a "net-widening" effect as more people (mainly young men ) are detected and fined.

Over the last few years about 16,500 fines a year were issued, resulting in about 10,000 convictions per year!
The largest number of fines were issued for possession of implements (38.4%)
followed by possession of less than 100gms of Cannabis (36.4%)
with the rest for cultivation of less than 10 plants (19.9%)

HOW DO SA's LAWS COMPARE WITH TOTAL PROHIBITION?

Most recently, the Social Impacts of Cannabis Laws in SA and WA report compared the SA Cannabis Expiation Notice system ("prohibition with civil penalty") to Western Australia's "total prohibition" approach. The report details some interesting findings and concluded that SA's laws are more appropriate, more cost effective and have less of a social impact than the "prohibitionist" laws in WA. The study found widespread satisfaction with SA's CEN system from the Judiciary and the Office of the Director of Public Prosecutions, and most law-enforcement. Some SA police however, raised concerns that "criminal syndicates"are "taking advantage" of the laws to produce Cannabis for sale using "sophisticated technology" such as "hydroponics". Several different options were proposed to deal with this including lowering the number of plants permissible under the CEN legislation from 10 to 3. The study's findings however suggests "toughening" our laws would be counterproductive. Despite (or perhaps because of) WA's more punitive laws, WA comes out higher in every single indicator measured as the table below demonstrates.

RATES OF CANNABIS USE COMPARED BETWEEN STATES
(South Australia VS Western Australia)

WA's tougher" Total prohibition" laws only seem to increase the rates of use.
WA's rates of Cannabis usage was higher in every category.

Again WA's tougher "total prohibition" laws compare very poorly to SA's "prohibition with civil penalty" model.
Both are fundamentally flawed, as they remain based on prohibition.

Sources: Makkai & McAllister. Marijuana in Australia: Patterns and Attitudes, NDS Monograph No31. 1997, pp49-59)
Ali, et al, Social Impacts of the Cannabis Expiation Notice Scheme in South Australia, 1998, pp22-25).

FINANCIAL COSTS OF THE THREE PLANT PLAN

Currently up to 85%of drug offences detected by police concern cannabis, of which only 7% are more serious than a CEN.

Around 16-17,000 CEN's are issued every year, and less than 50% expiated.

Between 1992 and 1996 over 37,000 convictions were recorded for otherwise minor Cannabis offences.

The 1998 Social Impacts of the CEN Scheme in SA study showed clearly that SA's CEN legislation was far more cost effective than prohibition based alternatives. Unit cost per CEN in SA was $32.73. However, this rises massively to over $600 when proceedings resulted in a jail term. The annual cost of the system (based on 1995/96 figures of 16,321 CENs with a expiation rate of 44%) worked out at $1.24million in costs, returning revenue of $1.68 million.

This resulted in a net profit to government of $440,000.

Recriminalising growers of more than three plants will see costs increase however. The study shows a return to prohibtion would see costs skyrocket to $2.01million with revenue of $1.0 million (assuming 7,500 minor offences as compared to 16,321 CENS). Net loss to government $1.1milion. (Social Impacts of the Cannabis Expiation Notice Scheme in South Australia, 1998, Ali, et al., p31).

Based on these figures, assuming the same number of offences as CENs would see the costs rise to $4.37million.

Changing the current laws will see inevitably increase the Police's workload. This will have implications for police staffing, resources and funding and will have flow-on effects into the community. We do not want Police too busy to investigate or prevent violent crimes, sexual assault, or child abuse because they're in court prosecuting some hapless grower with four seedlings!

It is impossible to accurately quantify the economic impact on South Australia of these proposed changes. Undoubtably, the Cannabis industry is a multi-million dollar affair - by raising the stakes in Cannabis production, the government is playing into the hands of organised crime.

The proposal to lower the number of plants is a regressive move towards an increasingly prohibitive approach that is demonstrably worse than our current system and more expensive to enforce. Outcomes are worse and social costs higher.

Claims that our laws encourage Cannabis to be cultivated ignore the bigger picture. It is the prohibition of Cannabis that makes it so lucrative, not our CEN system. Queensland, which has the toughest laws for personal possession (up to 15 years jail!) and life imprisonment for commercial cultivation, grows about $600 million of Cannabis a year according to the Criminal Justice Commission, making it that states second largest cash crop!

SA has similarly tough laws for large scale commercial production, up to 30 years jail, yet Police acknowledge large scale growing (indoors and outdoors) is still undertaken by organised crime.

It is undeniable Cannabis is grow, sold and in some cases, exported from SA, but this is despite some of the toughest penalties in Australia for commercial cultivation, sale and supply, not because of our CEN laws. Organised crime and corruption are inevitable wherever prohibition exists, yet it is arguable that our current laws have reduced corruption on the scale we saw demonstrated in the Wood Royal Commission and the Fitzgerald Enquiry.

SA's 10 plant provision under the CEN system has flattened the supply pyramid, reducing the relative income, power and corrupting influences of the Mr Bigs. A widespread cottage industry as probably exists now is better from a social, economic and law enforcement perspective than a smaller more hierarchical criminal structure where fewer bigger players control larger market shares and can more easily trade in other drugs, and corruptly influence police, judicial and political institutions.

DISCUSSION ON HYDROPONICS & INDOOR GROWING

Some Police have claimed criminal syndicates are organising many small Cannabis crops and are pooling the proceeds. They blame the use of "hydroponics" and "sophisticated technology" for subverting the intention of the laws.

Indoor growing using artificial light (whether in soil or hydroponics) has become increasingly more popular than outdoor growing for several reasons. SA's laws are not one of them. While we now has over 100 hydroponic shops in South Australia, indoor growing using artificial light and hydroponics is widespread throughout the rest of Australia and the world, despite near universal prohibition.

Growing Cannabis indoors is more attractive to growers as it is safer and more secure. As busts and ripoffs from backyards have risen to an all-time high (yet are mostly unreported due to fear of police involvement) so has indoor growing become increasingly popular. It is harder to detect (or perceived as such) as it is less visible to neighbours, casual visitors and the fruit fly inspector. Control of the climate, primarily the photo period (amount of time the plants are exposed to light) allows up to four crops per year to be grown, depending on grower skill and experience, compared to one crop per year outdoors.

Indoor growers commonly use cuttings (also known as "clones") to ensure all-female crops of known high quality, This ancient horticultural practice has now been widely adopted, as it is much quicker and more reliable than growing from seeds which have a 50-50 male female ratio. Other "sophisticated technology"used includes the use of timers, power boards and fans, such as that made locally by Gerard Industries (large donors to the Liberal Party), pumps, and in some cases equipment to add CO2 or purify the air. None of it is particularly sophisticated and nearly all is available from any garden centre or pet store. Information on hydroponics can be obtained freely from the internet, local libraries, garden centres and hydro stores or experienced friends. Until quite recently Police auctions were convenient ways to get a cheap 2nd hand set-up. This practice has now been stopped and seized hydro equipment is now apparently restricted to being given to schools and prisons (!)

Indoor growing has significant disadvantages however. It is energy and capital intensive, requiring large amounts of electricity and substantial money to set up a grow room or cupboard. It is also chemical intensive which is a major concern to users. The nutrients used are presumably fairly safe, being the same as those used for commercial production of foodstuffs (lettuce, strawberries, etc) but it is the indiscriminate use of hormones, fungicides and pesticides by unscrupulous or uneducated growers which present real, but unknown dangers, to the health of Cannabis consumers. With increasing doubts being raised by both sides of the drug law reform debate about the effects of the use of these chemicals on users, should the government further encourage indoor growing?

UNINTENDED IMPACTS OF THE THREE PLANT LIMIT.

The new 3 plant limit will be counter-productive and will have unintended consequences. The most likely unintended outcome of this proposal will be to increase and encourage indoor hydroponic cultivation and horticultural techniques like cloning. This is because outdoor growing from seed can only produce one crop per year - half of which are unwanted males, half the prized females. Three average plants grown outdoors (taking into account snails, males and rip-offs) is is unlikely to produce enough to last a consumer the whole year. Indoor growing in contrast can yield (depending on the variety chosen and the skill and experience of the grower ) 3-4 crops per year of all-female plants. 4 crops of 3 plants = 12 plants per year ; an overall increase of 20% in amounts of Cannabis produced compared to a 10 plant outdoor crop.

This has health implications for users and other flow on effects that will effect the entire community. A switch to indoor cultivation is far more capital intensive, with a small system ranging in cost from $500-$5000. Low -income users may be unable to afford their own set-up and would have to patronise the black market and sellers of other more dangerous drugs.

Prices will rise, whether from a (temporary) reduction in supply, or from an increase in the production costs. It is likely that there will still remain a price differential between SA and the Eastern States however ( a reflection of simple market forces or the laws of supply and demand), which will continue to encourage exports. As prices and hence profits rise "organised criminal syndicates" who the Police argue are "pooling crops", would be further encouraged by the untaxed profits prohibition offers, to switch from 3 growers of ten plants to ten growers of three (huge) plants. There may end up a net-widening of the number of actual growers as a reponse.

Other growers will continue to evade the "spirit" of the legislation by increasing the amount of lights per plant, which will increase yields per plant significantly. (eg from 400 to 600 watts or 1,000watts.) Such a scenario would see us back where we started, with Police making exactly the same claims as they are at present ie : " growers are pooling Cannabis for sale; they're doing it but we can't prove it; they're taking advantage of the legislation" etc, etc. Making cannabis more expensive will also impact on other crime levels, notably property crime. Home invasions with Cannabis as the goal could increase.

History has shown when crackdowns on Cannabis occur they are accompanied by an increase in other, more dangerous drugs like heroin and cocaine. Marijuana droughts are often accompanied by heroin plagues, an unintended but deadly outcome. The transfer of harder drugs from the eastern States to SA will continue, simply because that is where most of the heroin, cociane and ecstacy is landed in Australia. Reducing plant levels to three outdoors, is below what will provide an individuals own yearly requirements and will force outdoor growers to risk growing more, to switch to indoor cultivation (if they can afford it) or go back to the black market.

WHO WILL BENEFIT ?

Mr Bigs - organised crime would be much more able to take advantage of the increasingly capital intensive nature of the industry, and would appreciate smaller players being forced out of production and into the market.
Hydroponic stores (over 100 at last count in SA alone)

WHO WILL LOSE?

Ordinary Cannabis consumers (ie many working class people) forced to grow indoors or patronise the black market.
The wider community who will face the consequences of increased crime.
Police (if they are expected to do more work with the same resources)

WHAT IS THE ALTERNATIVE?

We advocate a shift towards a regulated model of availability, as recommended by the Sackville Royal Commission, the Australian Institute of Criminology in the Monograph Legislative Options for Cannabis in Australia (1994), the SA Legislative Council Select Committee in 1996, the Redfern Legal Centre's Drug Law Reform Project (1996) and the DPP's of SA, NSW and the ACT.

A regulated availability model acknowledges that people, and young people in particular, will continue to use Cannabis. It moves beyond seeing Cannabis users as criminal, sick or deviant, assumptions that underlie much of our current policy. It is an acknowledgement that "tough on drugs" just isn't a realistic, necessary, or desirable strategy for Cannabis. It's time we cease basing our drug policy around unattainable slogans like a "drug-free Australia" .

The Social Impacts study identified:"an alternative approach might be to maintain the ten plant limit and to try and impact on organised cultivation groups in other ways, such as police utilising the provision under the law, allowing commercial cultivation charges to be laid if the quantity of cannabis under cultivation or the circumstances lead them to suspect a commercial operation." (Ali, et al, 1998 p39). In other words, the Police have the power they need, they just don't have the evidence. if they do, they can act accordingly.

The study also suggests that instead of reducing plant numbers;"where the Police suspect a commercial operation is taking advantage of the expiation provisions, police use the expiation scheme to repeatedly issue CENs for cultivation offences... [to put] an end to their operations" (Ali, 1998, p39).

If these or other more progressive proposals to regulate the availability of cannabis are not supported, then at the very least the proposal should be amended to maintain the 10 plant limit for outdoor cultivation, to ensure indoor growing is not further encouraged.

CONCLUSION:

"The laws against marijuana are a social tragedy costing the Australian community tens of millions of dollars and making criminals needlessly of tens of thousands of young Australians. The time for reform is now." Don Dunstan 1987

We believe the proposed changes in the number of plants is a regressive and counterproductive move that will impact most heavily at a street level on young and working class people. The proposed change will only encourage indoor growing and benefit Mr Bigs as the stakes are raised, and prices rise. More violence is likely in the trade and more innocent victims will be caught up in it, as happened during the alcohol prohibition in America. Police and Court time will be preoccupied with detecting and prosecuting home growers caught in the net. Mr Bigs will not be affected and may even be encouraged to increase the number of growers to circumvent the proposed changes. The study comparing SA and WA's laws shows clearly that our "prohibition with civil penalty" approach is better than total prohibition. The proposal to lower the number of plants should be opposed as it is a move towards a more expensive, less effective total prohibition regime. The momentum is shifting towards drug law reform across Australia. Politicians should take steps to ensure South Australia remains at it's proper place in the forefront of positive social change.

References:

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