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Regulating Cannabis:
A New Way Forward. |
This is a copy of the paper delivered
at the inaugural
AUSTRALASIAN DRUG STRATEGY CONFERENCE
"Let's
Get It Right TOGETHER",
Adelaide
April 1999.
J. Danenberg BA(Hons)
Co-Convenor HEMP SA inc
South Australia.
Summary:
This is a submission from a user representative
group focussing on the need to redefine our approach to drug law enforcement,
in partnership with the community. Whilst it is clear that licit and illicit
drug use can be problematic, national and international experience must
be considered in informing future drugs policy.
Prohibition type approaches have consistently
failed to reduce either supply or demand for illicit drugs, harms related
to, and crime associated with, illicit drugs, particularly Cannabis. HEMP
SA is instead proposing an alternative model of regulated availability,
based around harm minimisation principles and consistent with the 14 point
criteria for a good drug policy as determined by the Australian Institute
of Criminology.
It will be demonstrated that normalising
the currently illicit market for Cannabis will have positive outcomes
for users, law enforcers and society on the whole, whilst minimising the
negative effects of prohibition based policies on Cannabis users, the
criminal justice system and the wider community.
Introduction.
Help End Marijuana Prohibition (HEMP
SA) is a community based, user representative group. We are dedicated
to Cannabis law reform for personal use, medical and therapeutic purposes,
as well as to the establishment of a commercial hemp industry. Our short
term goals include supporting accurate, informative harm minimisation
campaigns for users, by users, amendments to the SA Cannabis Expiation
Notice (CEN) system and retrospective abolition of criminal records for
simple Cannabis offences.
We have enormous public support for our
cause, demonstrated by our showing at the last two state elections where
we were the fifth best supported political group each time, despite running
an all-volunteer campaigns on a shoestring budget.
We have not come here today to have a
moral debate about cannabis.
We are here today to face facts.
And the fact is that prohibition of
Cannabis serves to promote, not prevent, Cannabis use in Australia.
We contend treating Cannabis users as
criminals not only hasn't reduced use, but is a counterproductive, expensive
and harm maximising approach. It is a hypocritical and futile strategy
that encourages corruption, tramples over civil liberties and human rights,
fuels the world's second biggest industry (the illicit trade in drugs)
and has created a multi-billion dollar black market for Cannabis in Australia
that is unregulated, untaxed and unsupervised.
It is clear the current laws on Cannabis
should be redefined in partnership with the community. To do that you
must listen to the community and stake holders, especially users. Cannabis
is overwhelmingly the most used illicit drug, with 1998 National Household
Drug Survey showing 2.7 million Australians had used it in the last twelve
months; more than tobacco (26%) and behind alcohol (80%). (Australian,
1/4/99, p5). Approximately 30-50% of adult Australians have tried it (Bowman
& Sanson-Fisher, 1994, p9). Amongst younger generations that figure
is even higher. The 1993 NCADA Australian household Survey determined
that 83.5% of 20-24y.o. males and about 60% of 20-24y.o.females had tried
Cannabis (Donnelly & Hall, 1994, p7). The most recent 1998 NCADA Household
drug survey showed 17.9% have used Cannabis in the last twelve months
(Australian, 1/4/99 p5).
The claim that the medical and psychological
effects of Cannabis are so "dangerous and harmful" that we must
not change the cannabis laws, has increasingly been seen to be unsupportable,
particularly in light of the known effects of tobacco and alcohol. Nor
does the "gateway theory" stand up to scrutiny (Donnelly &
Hall 1994, pp59-64; Fox & Matthews, 1992, p178).
This is unsurprising. As the Sackville
Royal Commission into the Non-Medical Use of Drugs in South Australia
found:
"even a cursory glance at the
modern history of Cannabis shows a repeated pattern of widely believed
myths which often fly in the face of the available evidence. It seems
as discredited beliefs (such as Cannabis being an addictive narcotic causing
violent crime and insanity) are rejected, they are replaced by new myths
(for example, that even casual use carries serious health risks to the
user)"...
"It is apparent that the debate
has been more concerned with values and community attitudes than with
the objective ascertainment of facts" (Sackville, Hackett, &
Nies, 1978, p3).
Community values have changed since 1979,
however. Surveys have consistently shown an increasing number of people
do not believe Cannabis should be illegal.
Public opinion does not support punitive sanctions, nor aggressive law
enforcement aimed at Cannabis users or growers. Whilst figures vary, the
1995 survey Public Perceptions of Cannabis Legislation, found:
"with regard to growing ,
possessing and using cannabis, approximately three quarters of the total
sample do not believe they should be regarded as criminal activities".
(Bowman & Sanson-Fisher, 1994, p39)
There has been a fundamental consensus
from almost every major government enquiry on the issue of Cannabis as
to the need for reform. From the British East Indian Report of Indian
Hemp Commission 1893-94 to the La Guardia Report and Schaeffer Commissions'
Marijuana: A Signal of Misunderstanding (US), The Wootton Report (UK),
the Le Dain Commission (Canada), and several Australian reports all reached
"strikingly uniform conclusions": Typically they concluded that
'the long term consumption in moderate doses has no harmful effects'
on the user, but that heavy and sustained use carries some risks"
(Sackville et al , 1979, p2).
It is understood that both licit and
illicit drug use can be problematic, both to the individual and society,
but as the British medical journal The Lancet concluded, the harms
associated with Cannabis are far less than those associated with keeping
it illegal (The Lancet, November, 1995).
Has Prohibition Worked?
The prohibition of Cannabis hasn't prevented
anyone from using Cannabis. Nor have "prohibition with civil penalty"
approaches like we have in SA, made much difference. We know South Australia's
rate of Cannabis use is not significantly different from the rest of Australia
(Makkai & McAllister, 1997, p54). Arguments that our laws have "opened
the floodgates" are hysterical and misleading. Even though 41% of
South Australians thought cannabis is legal (Makkai & McAllister,
1997, p85), SA's reported cannabis user rates are lower than several other
states with harsh and draconian penalties. The recently released report
into the Social Impacts of Cannabis legislation in SA & WA is just
one of a number of reports that demonstrate this clearly (Ali, Christie,
Lenton, Hawks, Sutton, Hall, & Allsop , 1998; Makkai & McAllister,
1997, pp49-59) Compared to the "total prohibition model in WA, people
in SA were less likely to have been offered Cannabis, less likely to have
tried it, less likely to have used in the last twelve months and less
likely to use in a vehicle (Makkai & McAllister, 1997, pp50-52, 55).
A dilemma is created for those advocating
tougher law enforcement. Cannabis usage rates do not correlate well to
intensity of enforcement or legal sanction at all. Comparison of the control
regimes in SA and WA or internationally between the Netherlands and the
US are perhaps the clearest indications of this. (Ali et al, 1998; Australian
Institute of Criminology, 1992)
When it comes to Cannabis, the evidence
shows "liberal" models of controlling drug use don't increase
rates of experimentation, whilst repressive models don't deter or prevent
experimentation.
A 1985 study conducted by the Foundation
for the Scientific Study of Alcohol and Drug Use at the request of the
Netherlands Ministry of Welfare, Health and Cultural Affairs confirms
that cannabis use went down after the Dutch so-called 'legalisation'.
The study showed occasional use fell from 10% of 17-18 y.o.s to 6% between
1976-1985.( van de Wijngaart, 1990, pp 667-678)
The Dutch policy of "normalisation"
has demonstrated "it is possible to relax some restrictions on [cannabis]
use without increasing the rate of use, with savings to law enforcement
and with positive outcomes for drug users and society" (Australian
Institute of Criminology, 1992, p23).
In the US, despite ever increasing funding
to the range of US$20-50Billion, increasingly draconian legislation and
law enforcement tactics, teenage use continues to rise.
The Australian Institute of Criminology
(AIC) noted:
"Arguably, the intensive American
interdiction campaign against Cannabis has created both a worse domestic
enforcement problem and more severe health risks for users"(AIC,
1992, p11). Despite US policy failing abjectly to control cannabis use,
they "have vigorously pursued the notion that their approach to drug
policy is the only correct one" (AIC, 1992, p16).
If a "tough" law enforcement
focus has failed overseas, have Australian control regimes been any more
successful? The clear answer is no. Differing regimes throughout Australia
have similar usage rates with few significant differences between "total
prohibition" regimes and the "prohibition with civil penalty"
approaches that are used in SA, ACT and the NT.
In SA, the number of users has not increased
significantly, as the police have acknowledged (The Advertiser, 1993)
yet due to a net-widening effect, expiation notices have risen from 6,200
in 1987/88, to 16, 300 in 1995/96, almost a threefold increase (Ali, et
al, 1998, p15).
Over half are not expiated and the recipients
end up going through the court system and receiving criminal convictions
(Ali, et al, 1998, pp15-18 ). It has failed in its original intentions
to free up police and court time and not to criminalise small scale cannabis
users/growers with over 37,470 criminal convictions in one four year period
from 1991/92 to 1995/96 alone (Ali, et al, 1998, pp15-18, 37).
The system clogged the courts, amendments
to the Expiation Notice system were made to provide for convictions by
default along with other procedures to alleviate the workload and try
and increase the rate of expiation (Ali, et al, 1998, p37). The "prohibition
with civil penalties" approach of on-the-spot fines, although cost
effective and easier to administer, when compared to total prohibition
approaches, is no longer appropriate for Australian circumstances.
A New Way Forward.
Getting it right together , means it
is important that we critically evaluate our drug policies. Our responses
must be research and evidence based, as well as having the support of
the community.
In 1989 the Parliamentary Joint Committee
on the National Crime Authority found in relation to this:
"Over the past two decades in Australia
we have devoted increased resources to drug law enforcement, we have increased
penalties for drug trafficking and we have accepted increasing inroads
on our civil liberties as part of our battle to curb the drug trade. All
the evidence shows, however, not only that our law enforcement agencies
have not succeeded in preventing the supply of illegal drugs to Australian
markets, but that it is unrealistic to expect them to do so".
It is clear that relying on the criminal
law and police as a mechanism for reducing the harms associated with Cannabis
use for individuals and the wider community has failed. It's time for
a new approach going beyond prohibition. In particular, any reforms should
overcome the previous failings of the "policy debate which lacks
precision and intellectual vigour, and whose outcomes depend more on rhetoric
and emotion than on logical argument and empirical data" (McDonald,
et al, 1994, p3).
To ensure rational drug policy effective
and workable laws it is therefore essential to have a set of criteria
for evaluating differing legal options (McDonald, et al, 1994, pp 4-8).
The Australian Institute of Criminology have refined and clarified suggestions
originally put forward by Kleiman and Saiger in 1992. They determined:
Accepting arguments that apply to the
most appropriate control regime for one drug need not - and often do not-
apply to others
Policy must take into account of the
different patterns and types of harms caused by specific drugs; with the
details crucial determinants of the outcome.
Analysis of control regimes should attempt
to estimate their effects on both consumption levels and patterns of use,
and should not be considered in isolation from the problems of implementation
and enforcement.
Arguments about the consequences of [Cannabis]
use should be separated from arguments about morals
Policy should be evaluated on the basis
of evidence of damage, and should recognise the changing nature of the
drug problem and be reviewed to ensure they are still relevant to current
circumstances
Policy should be developed in the light
of the costs of control as well as the benefits and have realistic goals,
that specify which harms they are intended to reduce.
It should recognise the existence of
multiple and sometimes contradictory goals, and must demonstrate it's
effectiveness or be changed.
The harms caused by the control regimes
themselves should not outweigh the harms prevented by them (McDonald,
et al, 1994, pp4-9)
When we examine the current legal approach
of either total prohibition, or prohibition with civil penalty to Cannabis
throughout Australia, the Australian Institute of Criminology has clearly
identified they do not satisfy many of these criteria:
"The total prohibition policy...has
clearly not achieved its intended goal of substantially reducing Cannabis
consumption. This is despite an increasing amount of resources directed
towards achieving this goal. ... Cannabis policy has not been separated
from other drugs, arguments about the consequences of drug use have not
been separated from arguments about morals; the goals of the "war
on drugs" are unrealistic; it appears the harms caused by the control
regimes outweighs the harms caused by the drug itself" (McDonald,
et al, 1994, pxi).
We advocate instead, 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), and by other recent reports
including the SA Legislative Council Select Committee in 1996 and the
Redfern Legal Centre's Drug Law Reform Project (1996).
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" and "zero
tolerance for illegal drugs".
As the American group, Common Sense for
Drug Policy (http://www.csdp.org) noted
:
"This political rhetoric is intended
to give voters the impression that politicians are controlling drugs when
in fact the policies that follow from the rhetoric result in an abdication
of control. Simplistic drug war rhetoric masks the inability of our political
leaders to face up to the complex social and health issues that surround
drug use. Such political posturing is a rejection of responsibility for
controlling the drug market and reducing drug-related harm, and leaves
the real control in the hands of narco-traffickers and drug dealers."
"Rather than facing the failure
of the drug war, the U.S. government expands the failed strategy [but]
we do not have to continue down this path...
There are alternatives, many with widespread public and professional support.
In light of this we ask you to consider: how can our nation do better?
"
Harm Minimisation Defined.
In contrast to the American model, Australia's
National Drug Strategy has been "widely acclaimed" internationally
as a world leader for it's adoption of a harm minimisation framework with
it's "overarching goal to minimise the harmful effects of drugs
and drug use in Australian society". (MCDS, 1993; in McDonald,
et al, 1994, p1)
However, a dilemma exists:
"harm reduction (in any meaningful
definition) is incompatible with prohibition" (Redfern Legal
Centre, 1996, p5)
What the Parliamentary Joint Committee
on the National Crime Authority found in 1989 is just as relevant today:
"...it seems harm minimisation
means different things to different people. It is clear from the thrust
of the campaign that at an official level [it ] means reducing the use
of drugs...An alternative interpretation, based on an acceptance of certain
levels of drug use in Australian society, would emphasise the need to
minimise the harm which users may do to themselves as a result of their
drug use. Such an interpretation implies rather different policies to
those being pursued at present. It would suggest for example, that a policy
should put primary emphasis on safe use, rather than deterring use."
(Australian Institute of Criminology, 1992, p59)
The Redfern Legal Centre in it's Drug
Law Reform Project 's report Beyond Prohibition of Sept 1996 concurs:
"We accept and acknowledge the
fact that drug use will never be eliminated, even if we do not approve
of it and must evolve effective ways of making it safer and reducing the
harms associated with it". (Redfern Legal Centre, 1996, p8)
To this end, the Redfern Legal Centre
gives a practical and workable example of a regulated availability model,
that takes into account the criteria determined by the Australian Institute
of Criminology.
Central to their model is the controlled
availability of Cannabis.
A Model Of Regulated Availability.
It would be legal to consume Cannabis
and to possess [Cannabis] for personal use. It would be legal to grow
up to 10 plants for personal use and [gratuitous distribution]. Commercial
growers would be licensed to supply Cannabis to Cannabis "Kafes"
or shops. These shops would be established for retail sales of cannabis,
both for consumption on the premises and for take-away consumption to
adults. A range of products from rolled cigarettes to biscuits might be
available, together with smoking implements designed to reduce the level
of harm associated with smoking cannabis products (eg bongs or vaporisers)"
Other retailers would be licensed to
sell take-away products. Cannabis seeds and information about home cultivation
would also be available. Commercial suppliers would be required to label
their products with consumer information concerning weight, THC content,
recommended dosage and approved health warnings.
Profits earned from the commercial manufacture
or supply of cannabis would be taxed.
Revenues from taxes and licences would
be used to administer the regulatory system and to provide education and
treatment services through services funded by the Health Department.
Sales to people under 18 and unlicensed
(ie untaxed) sales would be illegal.
Advertising and marketing of Cannabis
products would be restricted to a minimum necessary (eg brand identification).
It might include a statement inside and outside that "Cannabis is
sold here".
Cannabis smoking would be banned in places
where tobacco smoking is banned.
A realistic education campaign about
the hazards of using Cannabis and concentrating on safe Cannabis use,
"dope-driving". the effects of both short term and chronic use,
and the use of Cannabis and alcohol together, would be carried out at
regular intervals.
It would remain an offence to drive whilst
impaired by Cannabis and/or other drugs including alcohol.
(Redfern Legal Centre, 1996, pp32-33)
The Redfern Legal Centre model is a feasible
and internally consistent model of controlled availability with numerous
advantages to consumers, law enforcement and society as a whole.
Whilst prohibitionists might claim our
international treaty obligations prevent us from adopting such a model,
the International Narcotics Control Board note that "none of the
conventions requires a party to convict or punish drug abusers [for possession,
purchase or cultivation for personal use]..." (McDonald, et al, 1994,
p31).
Even the conservative Williams Commission
commented that the spirit and intention of the treaties were "a
secondary matter in the sense that Australia must first decide what is
the correct domestic policy, then shape its international course accordingly"
(McDonald, et al, 1994, p33).
Direct Advantages to Consumers:
One of the most significant consequences
of this model would be the separation of markets between Cannabis and
other drugs with more serious health implications and addictive potential.
This effect has been empirically demonstrated in the Netherlands, successfully
isolating Cannabis users from those who sell heroin.
Removing criminal sanctions against use,
possession and small scale cultivation would see a significant reduction
in crime levels as the every day activities of hundreds of thousands of
primarily young Australians would be removed from criminal status.
Users able to safely and legally grow
their own, or purchase from taxed and regulated shops users would no longer
have to resort to criminality to fund expensive habits. Incentives to
induce newcomers for purely financial gain would be reduced. Nor would
young people be forced to deal to friends to support their own purchases.
It is possible the incidence of home
invasions and other property crime could also be significantly affected,
as Cannabis homegrowers wouldn't fear seeking help from police at the
first opportunity, if subject to such (otherwise unreportable) crime.
It's likely fewer people would risk life in prison for a home invasion,
when Cannabis could be purchased legally similarly to alcohol.
Based on current intra-state trends it
is likely the price of Cannabis would go down following such reforms,
although to what extent remains undetermined. A decrease in black market
sales and increased home growing would reduce financial burdens of users
from the lower end of the socio economic scale who pay a disproportionate
amount of income for Cannabis; thus improving their potential health outcomes
due to increase in disposable household income.
The removal of sanctions against paraphernalia
like pipes and bongs would reduce the need to share implements and hence
benefit users health, by reducing the risk of transmission of communicable
disease like hepatitis, influenza and rhinovirus. Users could also access
appropriate health care facilities without any legal obstacles (Redfern
Legal Centre 1996, p11).
Credible, open and factual drug education
and information can be given at point of sale, and is more likely be believed
coming from peers, user representative groups and drug education services,
rather than the police and courts.
Advantages for the Community:
A gradual retreat by law enforcement
from the role of moral guardians and protectors of state sanctioned drug
cartels will allow a vast redirection of funding into other health, welfare
and education spending.
We won't have to tread down the American
path, where prison funding outstrips that of universities for example,
for ultimately in time of dwindling public sector spending, where every
dollar has to be accounted for, fighting a drug war against Cannabis and
it's users seems to fail all cost-benefit analysis.
Access to medical marijuana for patients
with debilitating and serious conditions can be ensured with a minimum
of legislative trouble.
Advantages for Law Enforcement:
The Separation of markets is critical,
as it means users don't come into contact with sellers of other drugs.
Breaking the nexus between soft and hard drugs is a key component of the
Amsterdam model and has proven successful in that regard. (AIC, 1992,
p23). Regulatory and police supervision of Kafes ensures no hard drugs
are used or sold on the premises. Age limits can be enforced, dosages
can be quantified and quality controlled and health education and harm
minimisation information can be distributed direct to users(AIC, 1992,
p 21; Redfern Legal Centre pp 32-34).
Regulating the availability of Cannabis
in this manner would reduce significantly, but not eliminate, the black
market's size and profits. Economic modelling of this scenario is difficult
due to a lack of data however.
Given that 75-90% of all drug crimes
dealt with by police concern Cannabis, (of which in SA only 7% are more
serious than a CEN), it will free up police resources to permit them to
tackle serious and violent crime and make our community a safer place
(Advertiser, 20/5/96,p 3).
A greater respect for police force in
community and improving police-community relations especially amongst
youth would be other positive outcomes.
Of significant benefit would be a reduction
in the opportunities for corruption at all levels, by impacting on what
Justice Wood considered was the single largest cause of corruption; money
from the sale of illicit drugs. Establishing legal channels of production
and distribution would re-direct billions from the black market to the
legitimate economy and permit closer scrutiny of the industry.
A regulated availability model resolves
the outstanding difficulties police face currently regarding wet or dry
weights and the awkward anomaly of ten plants being acceptable for personal
cultivation, but only 150 gms of harvested material being considered for
personal use. Any excess of that amount is deemed to be a trafficable
quantity, thus requiring a criminal charges be laid and a court appearance
required. Police discretion that is probably routinely applied in this
situation means that the laws are inevitably being differentially enforced
which is a significant concern.
A regulated availability model would
also remove obsolete laws regarding paraphenalia which are routinely flouted
by shops selling items for "ornamental purposes" or "for
tobacco use only".
It obviates the need for police to act
as moral guardians regarding censorship tasks, ie visiting shops that
sell Cannabis related material and grow guides (that are currently available
in other book stores and on the internet).
Under this model police would retain
"ample legal power to control offensive or anti-social behaviour
which might accompany drug use. Appropriate community policing strategies
would address community concerns about unacceptable behaviour in public
places by people under the influence of illicit drugs" (Redfern Legal
Centre, 1996, p12)
The overall impact would include less
paperwork all round and more time to enforce and detect more serious and
violent crimes.
It also resolves ethical dilemmas surrounding
law enforcement in cases of medical marijuana. Recent reports to acknowledge
the efficacy of medical marijuana include US Institute of Medicine's comprehensive
enquiry, the World Health Organisation (WHO) Report and the SA Governments
investigation conducted by DASC. Although the issue is not yet front page
in Australia, experience in the UK, Canada and the US demonstrate it will
become a major issue. Law enforcement cannot and should not be forced
into intruding into the doctor/patient relationship, nor should it usurp
the role of doctors in deciding what is and isn't appropriate medical
treatment for what are often serious, debilitating or life threatening
conditions.
Conclusion:
We are now at a crossroads in Australian
drug policy; a position where as national leaders are coming together
to host drug summits it is incumbent upon this conference to send the
right message. That must not and should not be a politically correct kowtowing
to a simplistic "Tough on Drugs, heavy on the enforcement" American
style approach, but support for a tolerant, harm minimising strategy that
fulfils the criteria we have mentioned.
A regulated availability model can be
seen to have fulfilled these criteria and achieved simultaneous goals:
It will provide a greater level of harm reduction for users of Cannabis
by removing them from one of the biggest harms; the laws themselves. It
will also benefit society as a whole by reducing overall levels of crime,
and take Cannabis use out of the sphere of criminal control. By removing
obstacles to Cannabis users seeking treatment or advice for problematic
use it will minimise also the number who experience problems related to
their drug use. It is not a "silver bullet" solution, but on
balance, a rational and tolerant alternative to move us beyond discredited
and failed prohibitionist policies.
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The Advertiser, October 9th, 1993.
The Advertiser, May 20th, 1996 p3.
Ali, R., Christie, P, Lenton, S, Hawks,
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Strategy Committee, Department of Health and Family Services, Canberra
Ali, et al, 1997,
The Australian, 1/4/99, p5
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http://www. csdp.org)
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Prohibition: Report of the Redfern Legal Centre Drug Law Reform Project,
RLC, Sydney.
Sackville, R., Hackett, E & Nies,
R., (1978) Royal Commission into the Non-Medical Use of Drugs in South
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