AUSTRALIAN GOVERNMENT RESEARCH SAYS END PROHIBITION!
Monograph Series. No. 26
David McDonald, Rhonda Moore, Jennifer Norberry, Grant Wardlaw, Nicola Ballenden
Australian Institute of Criminology,Canberra, ACT
Australian Government Publishing Service, Canberrra, 110pp
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Legislative Option for Cannabis
in Australia-
National Drug Strategic Plan Monograph Series no. 26
Contents:
Policy Goals (A 14 Point Criteria for a Good Drug Policy)
History
Laws & International Treaties
Compulsory Treatment
Evaluating New Legislative Approaches To Cannabis
Summary
Introduction (pp. ix - 2)
Australia's National Drug Strategy is widely acclaimed, both in this country and internationally, as a world leader.
It features a balance between action addressing the demand for and supply of drugs.
It involves a partnership between the government and non-government sectors.
It addresses all drugs, both currently licit and illicit.
Above all, its overarching goal is to minimise the harmful effects of drugs and drug use in Australian society.
It does not have the impossible-to-achieve goal of eliminating drug use nor the simplistic approach of addressing just one class of drugs (the currently illicit ones), the approaches taken by some other nations.
This paper is concerned with the legislative options available for cannabis, and the impact of those options on the community at large and on the law enforcement sector.
Policy goals (pp. 3 - 9)
Given the importance which is assigned to setting clear goals for any major social policy, it is surprising how infrequently discussion of drug policy is preceded by a precise specification of what the policy is intended to achieve. Too often, goals are either global (e.g. to reduce drug use) or unattainable (e.g. to eliminate drug use), and as such they allow for many interpretations.
Similarly, goals are often stated in such a way that they could be achieved through a number of quite contradictory strategies and at vastly different costs. This report starts from the proposition that it is important to know what are the requirements for rational drug policy in general, and what are the objectives of cannabis policy specifically. In this context, it is important to address the issue of drug policy as well as drug legislation. The link between policy, legislation and implementation is important and must be factored into these considerations.
The development of policy and legislation relating to cannabis should take into account the following issues:
1. Arguments that apply to the most appropriate control regime for one drug need not - and often do not - apply to others.
2. Drug policy should be drafted to take account of the different patterns and types of harms caused by specific drugs.
3. The details of control regimes are crucial determinants of their outcomes. Such details should not be left undefined.
4. Any analysis of control regimes should attempt to estimate their effects on both consumption levels and patterns of use.
5. Control regimes should not be considered in isolation from the problems of implementation and enforcement.
6. Arguments about the consequences of drug use should be separated from arguments about morals.
7. Options should be evaluated on the basis of evidence of damage.
8. Any policy should recognise the changing nature of the drug problem and be able to change with it. Additionally, all policies should be reviewed periodically to ensure that they are still relevant to the current circumstances.
9. Policy should be made in light of the costs of control as well as the benefits.
10. The goals of drug policy should be realistic.
11. Discussion of policy options should include a specification of which harms they are intended to reduce.
12. Discussion of cannabis policy (and drug policy generally) should recognise the existence of multiple and sometimes contradictory goals.
13. Policies to discourage cannabis use should be shown to be effective or be changed.
14. The harms caused by the control regimes themselves should not outweigh the harms prevented by them.
The application of these principles in a given situation should lead to the development of explicit policy goals relating to cannabis.
It is likely that priority will need to be assigned between the available goals, as they are frequently inconsistent. Nevertheless, the explicit specification of the goals which policy and legislation are intended to achieve is essential if they are to be properly articulated and evaluated.
Cannabis in context: history,
laws and international treaties
(pp. 11 - 36)
Cannabis has been used for many thousands of years. It has been used for the production of material products such as clothing and rope; for its medicinal properties; and for its psychoactive properties. Cannabis was used medicinally in Australia until the mid-1960s and is currently used in many parts of the world, in the form of hemp, for the production of cordage, clothing, etc.
Australian drug laws, like those of many other countries, closely followed the development of international drug treaties. The influence of the United States of America in the conception and development of treaties and related international instruments has been enormous. As a result of lobbying by Egypt, Turkey and South Africa (who were supported by the United States), the 1925 Geneva Convention on Opium and Other Drugs was the first such convention to cover cannabis. The Convention required the parties to 'enact effective laws to limit to medical and scientific purposes the manufacture, import, sale, distribution, export and use of cannabis in the form used for medical purposes at the time' (South Australia 1978, p34).This remains the state of cannabis in the international community.
Numerous enquiries into drug use and trafficking have been conducted both in Australia and overseas. Australian committees have generally been very cautious about recommending changes to the legal status of drugs.
Nevertheless, a number of high level Australian committees of inquiry have recommended the liberalisation of legislation relating to cannabis, or at least that such liberalisation be carefully considered.
In 1977 the Senate Standing Committee on Social Welfare (the Baume Committee) produced its report Drug Problems in Australia - an Intoxicated Society? which looked at the use of licit and illicit drugs in Australia. Like other reports, before and since, it recognised differing harms caused by different drugs and concluded that drug use was more a social/medical problem than a legal one.
It also considered the social and personal harms flowing from the illegal status of some drugs and recommended that:
o 'legal controls [should] not [be] of such a nature as to inhibit rehabilitation of the user or to cause more social damage than the use of the drug causes' (Australia 1977, p 164);
o cannabis legislation should be enacted that 'recognises the significant differences between opiate narcotics and cannabis in their health effects and in the criminal impact on users and the community (Australia 1977, p 164);
o possession of marijuana for personal use should no longer be a criminal offence and should only attract a fine;
o penalties for the possession of hashish, hashish oil and purified THC should remain at their present levels because of the potency of these drugs.
The Commonwealth Government response to the Baume Committee report, however, was both tardy and hostile. The Prime Minister appointed a conservative judge to head up a Royal Commission into Drugs, whose final report called for more social control, heavier penalties, more enforcement authorities and recommendations not to change the laws.
The 1978 New South Wales Joint Parliamentary Committee upon Drugs' Report into Drug Abuses came to similar recommendations as the Baume Committee report, as have several other inquiries since that time. The most recent inquiry at the national level was the Parliamentary Joint Committee on the National Crime Authority which reported in 1989, and at the State/Territory level, the Australian Capital Territory Legislative Assembly's Select Committee on HIV, Illegal Drugs and Prostitution, which, in 1991, tabled its report on Marijuana and other Illegal Drugs. The focus of the report was on the 'effectiveness of the current legal and social controls on drug taking, with particular reference to marijuana' (Australian Capital Territory 1991, p1).
Proceeding from a belief in harm minimisation and from the view that drug use can never be completely eliminated, the Committee recommended that:
o possession of up to 25g of cannabis no longer be an offence; o possession of more than 25g of cannabis and less than 100g of cannabis attract a fine of $150;
o possession of more than 100g of cannabis should incur a penalty of $5000 or two years imprisonment, or both;
o cultivation of five cannabis plants should no longer be an offence; and
o there should be no offence of self-administration in respect to cannabis.
In the main, cannabis was little known or used in Australia until the 1960s. Nevertheless, the drugs legislation which was introduced in most of the States and Territories towards the end of the 1800s and early 1900s (primarily concerned with the smoking of opium by Chinese people) provided a framework for the prohibition of cannabis.
The first Australian controls on cannabis were introduced in Victoria in 1928 legislation which penalised the unauthorised use of Indian hemp and resin. Following the 1925 Geneva Convention, the Commonwealth was the first government to succumb to the exhortations of the United Kingdom. It proscribed the import of cannabis in 1926 through the Customs (Prohibited Imports) Proclamation and at the same time banned the export of cannabis.
Australia's attitude to drugs and drug laws became entrenched at an early stage. Manderson (1993) has described it very clearly - lack of a domestic problem (and this particularly applied to cannabis) meant that legislation was accepted uncritically; no pressure groups existed to stimulate debate or mount opposition, and the absence of a drug problem meant that it was impossible to evaluate the costs and benefits of the prohibitionist model - it was simply assumed that the model worked effectively.
The Commonwealth introduced new federal laws on drugs - the Narcotic Drugs Act 1967 was the first of these. Drug laws and drug policies from this time onwards can be characterised as follows. First, a law enforcement approach became firmly entrenched at the Commonwealth level with the important role played by Customs, which had no interest in any medical or public health model of drug use or supply. Second, penalties were increased. Third, there were changes to basic principles of criminal law - such as reversal of the onus of proof - in order to make convictions easier (Manderson 1993). Last, there was a shift in legislative emphasis away from drug users to drug traffickers.
Efforts to bring the States into line were less successful. Cannabis use in Australia was not a problem and there appears to have been little domestic agitation in support of proscription. This was followed by corresponding legislation in the other jurisdictions as the years passed. From the 1960s, however, the Commonwealth has become increasingly involved in legislation relating to cannabis (particularly with regard to its importation). The penalties relating to cannabis cultivation, possession and use were generally quite severe during the 1960s and 1970s but have tended to lessen since then in most jurisdictions, at least with regard to the minor offences of possession and use of small quantities.
Perhaps the most significant legislative changes have been the introduction in 1987 in South Australia and in 1992 in the Australian Capital Territory of expiation notice schemes. Under these schemes, a person found committing a minor offence relating to cannabis is given what amounts to an 'on-the-spot' notice. If the prescribed penalty is paid within the prescribed time then no court appearance is required and no conviction is entered. If the person receiving the expiation notice fails to respond to it, however, the normal court processes follow.
People considering the legal status of drugs and the possibility of legislative change need to be cognisant of Australia's international treaty obligations. Although some difference of opinion exists with regard to the legislative options for cannabis which are available to Australia within the scope of the international treaties, it is clear that the policy of total prohibition currently followed by most States and Territories is only one of a number of options which are available.
For example, current Dutch attitudes towards illicit drug use are said to arise from a number of factors peculiar to Dutch society and history. First, realism and pragmatism. Second, a belief in social pluralism. Third, an ideology or normalisation in which 'illicit drugs are seen as a limited and manageable social problem rather than an alien threat forced on an otherwise innocent society' (Leuw 1991, p2). Fourth, is the context of the criminal law itself. Dutch writers stress that the criminal law is not perceived as enforcing social morality but rather as 'an instrument of social control, whose results must be assessed from case to case' (Ruter 1988, p6).
Five legislative options for Cannabis in Australia (pp. 37 - 70)
Many legislative options are available for cannabis, and much confusion exists in the terminology used to describe them. In our view, the South Australian Royal Commission into the Non-Medical Use of Drugs (the Sackville Commission) which reported in 1978 provided the most useful categorisation of these options. The language used avoids the terms 'decriminalisation' and 'legalisation' as these expressions have quite different meanings for different authorities.The five options discussed below capture all the approaches people have in mind when they when they refer to 'decriminalisation' and 'legalisation', as well as other options which these two words may or may not encompass.
The National Task Force on Cannabis has been established and is reviewing legislative options for cannabis use. NSW Premier Bob Carr has recently made certain positive statements regarding decriminalisation. Clearly the time has come for formal choices to be made. The Australian Institute of Criminology has been commissioned to research various legislative options and has made a report concerning five options which are set out below.
These are:
Total Prohibition,
Prohibition with Civil Penalty,
Partial Prohibition,
Regulated Availability
Free Availability.
The first option is Total Prohibition
Under the system of total prohibition the use, possession, cultivation, importation, sale and distribution of any amount of cannabis are treated as criminal offences. Total prohibition can take a number of forms. In the United States, for example, the eradication of all illicit drug use is a central aim of drug policy and it is thought that total prohibition is the most effective means of reaching this goal. Cannabis use is seen as part of a larger drug problem and is dealt with as such.
The US Drug Enforcement Agency (DEA), responsible for classifying drugs and updating classifications, has listed cannabis in Schedule 1 of the classification scheme. Schedule 1 drugs are seen to have a high potential for abuse, no currently accepted medical use in the United States and no acceptable safe level of use under medical supervision.
The possession of cannabis can carry a penalty of up to one year's incarceration and a fine of $1000 to $5000. An offender can also be required to forfeit to the state all controlled substances, raw materials or equipment used to manufacture, import or export controlled substances, all conveyances used to transport controlled substances, all money and property gained through contravening the Controlled Substances Act (CSA), and all property used to facilitate violations of the CSA. The proceeds of forfeiture are used to fund drug law enforcement.
Central to the US Government's policy on reducing demand is the idea of creating a climate of intolerance towards all drug use through concepts such as 'user accountability' and 'zero tolerance'. 'User accountability' is the idea that individual users be made to recognise that their drug use, no matter how minor it may appear to be, is part of a drug problem that eventually results in the death of some users (Wardlaw 1992).
The notion of 'zero tolerance' holds that no drug offence should be allowed any degree of tolerance and makes little distinction in terms of culpability between the different scales of drug offences (US Bureau of Justice Statistics 1992). Drug policy in the US is based on a deeply held belief that all illicit drug use is extremely harmful, both in terms of the dangers it poses to users and in terms of the dangers it poses to the fabric of American society. There is very little distinction made between cannabis and other drugs. American policy makers have tended to see drugs themselves as the central source of all the ills associated with drug use in that country.
Analysis of the social context of drug taking or of the relationship between drug taking and poverty have apparently had little impact on the development of drug policy. It has been claimed that those debating drugs policy in the US have blurred the distinction between the effects of drug use and the effects of the prohibition of drug use (Wardlaw 1992). Drug use is therefore thought to be inextricably linked to violent crime, users are conceptualised as criminals, and policy towards any level of drug use in punitive and coercive. This philosophy of drug use is evident in the rhetorical language of US policy makers who have called their drug strategy a 'war on drugs'.
The total prohibition policy, as implemented in the United States, many other countries and most of the Australian States and Territories, 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. Both the financial and social costs of law enforcement under an active policy of total prohibition are high.
This policy fails to meet a number of the crucial criteria for good drugs policy, stated above. Cannabis policy has not been separated from that of other drugs; arguments about the consequences of drug use have not been separated from the arguments about morals; the goals of the 'war on drugs' are unrealistic; it appears that the harms caused by the control regimes outweigh the harms caused by the drug itself.
The Netherlands provides an example of a quite different application of the total prohibition policy from that observed in the United States and elsewhere. In The Netherlands, legislation makes a clear distinction between 'drugs presenting unacceptable risks' on the one hand, and 'cannabis products' on the other. In addition, a clause in The Netherlands Code of Criminal Procedure, known as the 'Expediency Principle', states that the Prosecution Office may decide whether or not to enforce certain laws, to prosecute or to initiate criminal investigation on the basis of whether or not such action would be 'in the public interest'. Using this clause, the Minister of Justice issued guidelines in 1976 for the enforcement of drug laws and the investigation and prosecution of breaches of drug laws.
Essentially it is these guidelines, rather than the total prohibition legislation, that determines drug policy in The Netherlands. According to the guidelines, dealing, possessing or producing small amounts of cannabis do not require police investigation, arrest or prosecution.
The country's drug policy is therefore characterised by a number of factors: first, criminal law was never thought to be a solution to the drug problem; second, it is recognised that the basis of drug policy should be to minimise harm rather than eradicate drug use, and; third, it is argued that drug policy should not be the same for all illicit drugs.
This separation of cannabis from other illicit drugs also has the effect of making the drug problem more manageable. A low priority is also given to the investigation and prosecution of retail dealing in cannabis, and police are only required to confront cannabis dealers when they advertise publicly or conduct business in a provocative manner.
This is part of a broader government policy of 'normalisation', under which efforts are made not to marginalise drug users, but to ensure that the harm related to their drug use is minimised and that they are able to avail themselves of community services to the optimal extent.
'Normalisation' recognises that some type of drug use is natural to all human societies and argues that the eradication of all drug use is an unrealistic policy goal. The reduction of drug use and the social and individual problems associated with it are felt to be far more reasonable policy goals.
Evaluative studies have shown that cannabis use has not increased in The Netherlands since the liberalisation of its policy relating to cannabis. Indeed, levels of cannabis consumption are far lower than those in the United States, where the total prohibition policy is rigorously enforced.
Unsurprisingly, Dutch commentators do not subscribe to the view that their society is on the brink of collapse. They argue that the 'hash cafes' have been integrated as normal urban facilities and do not pose a threat to public order (Leuw 1991). The point has also been made that visible drug use only signals failure if maintaining a drug-free society is an aim of drug policy (Leuw 1991). In contrast, the Dutch, who aim to prevent drug users from being marginalised, may see visible drug use as a sign of success.
The savings made to law enforcement and criminal justice budgets of not processing large numbers of cannabis offenders are substantial and should be seen as one of the primary benefits of the Dutch approach to drug policy.
It has also been argued that the Dutch approach has led to safer patterns of cannabis use. First, the fact that users of cannabis do not seem to turn to other more dangerous drugs is used as evidence that the policy of separating the drug markets is working (van Vliet 1990). Cohen (1988) argues that Dutch cannabis users, unlike their counterparts in the USA, are more likely to consume the drug in a safer way because the sale of drug paraphernalia such as waterpipes is legal in The Netherlands.
Cohen has also argues that 'the knowledge of how to regulate cannabis use has become an inconspicuous part of local Dutch youth culture because the development of drug use rules was not pushed out of the mainstream and into deviant sub-cultures' (Cohen 1988, p24).
In a number of ways The Netherlands' drug policy meets many of the criteria for good drug policy discussed above.
The second policy option is that of prohibition with civil penalties.
Under this option, the penalties for the possession and cultivation of small amounts of cannabis for personal use are dealt with by civil sanctions such as paying a monetary penalty, rather than by criminal sanctions such as fines or imprisonment. Criminal sanctions still apply to the possession, cultivation and distribution of large amounts of cannabis.
The South Australian Cannabis Expiation Notice (CEN) Scheme, introduced in 1987, and the similar scheme introduced in the Australian Capital Territory in 1992 are examples of this option in practice. As mentioned above, under the South Australian and ACT schemes, minor cannabis offences such as the possession of small quantities, cannabis consumption, or the cultivation of a small number of plants are expiable offences, ie. if the prescribed penalty is paid within the specified period, the offender does not have to appear in court and avoids a criminal conviction. If the penalty is not paid, then the normal court appearance and possibility of conviction ensues.
The evaluations conducted to date indicate that the cannabis expiation notice schemes go a long way towards achieving their goals and meeting the criteria for effective drugs policy discussed above.
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 recognises that much of the harm relates to patterns of enforcement of cannabis legalisation, rather than to the use of the drug itself.
The approach is realistic and the goals attainable, focusing on minimising the negative impact on users of cannabis-related involvement in the criminal justice system, along with producing society-wide benefits in terms of lessening the financial costs to the criminal justice system.
The major concern associated with this approach (at least in South Australia where most experience has been gained) is that there could be a social class differential in terms of the application of the policy. In other words, people from lower socio-economic classes could be disproportionately represented among those who fail to expiate the offence and, consequently, obtain criminal records.
There remains some concern that the CEN system, as to some extent any system allowing expiation in place of a court appearance, puts pressure on some alleged offenders who claim not to be guilty, to pay the fine rather than contest the charge. This poses risks of legal costs, the trauma and stigma of appearing in court and the additional costs and criminal record if convicted.
At a society-wide level, it appears that the patterns of cannabis consumption are similar in South Australia and the ACT to those found in the other jurisdictions which operate policies of total prohibition.
The third legislative option is partial prohibition.
This is an option which seeks to maintain controls on the production and distribution of cannabis while at the same time avoiding the costs of criminalising the use of the drug. Under partial prohibition, it would remain an offence to grow or deal in cannabis in commercial quantities. It would not be an offence to use cannabis or to possess or grow it in quantities judged appropriate for personal use.
A number of variations are possible within this broad outline. A small number of countries, for example Spain, have followed this model. Other countries, such as Italy, have made possession and use unlawful, but not criminally punishable. In none of these cases does it seem that an increase in cannabis use has resulted from the establishment of this legislative approach.
The partial prohibition model attempts to use legal restrictions to discourage cannabis use by concentrating on the prohibition of the commercial cultivation and supply and on the advertising of the availability of the product. At the same time, the model attempts to minimise the personal and social costs of the total prohibition policy by allowing the use and personal possession of cannabis. It assumes that cannabis is relatively less harmful than other drugs (such as heroin), but that the harms associated with cannabis are sufficiently serious to justify some level of restriction on its availability and that criminal sanctions remain an appropriate instrument to achieve this restriction.
In the variant of the model that allows cultivation for personal use, the model extends the recognition of the practical difficulties and costs of enforcement to cover the case of home cultivation. In addition, it recognises that most cannabis users are otherwise law-abiding people who obtain their supplies from an illicit source and therefore come into contact with criminals. For a proportion of these users, making cultivation for personal use legal will reduce their dependence on an illegal market. This will act to reduce their exposure to criminal influences or dangers, and may also erode the sales base of drug sellers.
Since this model has not been fully implemented and evaluated in any country, no empirically based information is available as to the likely outcomes of this model. Nevertheless, it is likely that the main outcome would be to reduce the financial and social costs of having personal possession and use a criminal offence. This option meets the criteria of effective drugs policy to a greater extent than some of the other options considered here. It separates cannabis from other (potentially more harmful) drugs. It seeks to minimise the negative impacts of enforcement regimes. It acknowledges the contradiction between the goals of limiting cannabis use while minimising the negative aspects of enforcement. Finally, its goals are realistic and attainable.
The fourth legislative option is regulation.
In this approach, the production, distribution and the sale of cannabis would be controlled to a greater or lesser extent by government agencies. Trafficking outside the regulated system would continue to be a criminal offence and attract penalties. Activities associated with personal use, however, would not be penalised.
While no full working model of this option is available, cannabis control in The Netherlands exhibits some elements of the regulatory option. While the Dutch Government does not license production, distribution or sale of cannabis, youth centres and coffee shops selling cannabis products operate openly under certain clearly defined conditions.
Examples of regulatory systems for drugs other than cannabis exist within Australia. For instance, opium poppies are cultivated under licence in Tasmania. A regulatory regime applies to the drugs tobacco, alcohol and many pharmaceutical products. The two major regulatory models for currently illicit drugs are regulated commercial sale and government monopoly.
The option exists, within this broad approach, for a range of initiatives to limit the attractiveness of cannabis, including setting high prices through taxation and limiting the availability of the product. The primary rationale for the regulatory option is the recognition that the eradication of all cannabis use is an unrealistic goal and that, since cannabis use will occur, it should occur in the safest possible environment. It recognises that the gateway theory of drug use (that cannabis users have an increased likelihood of progression to more dangerous drugs as a direct result of using cannabis) is not supported by empirical evidence.
The outcomes of a regulatory policy would depend very much on the regime introduced. The most cited benefit of regulation is the eradication or undermining of the black market for cannabis and its associated crime and violence. The approach where the price of cannabis is kept high and users must obtain a licence to use the drug, may not result in the demise of the black market in cannabis. Neither is it likely that black marketeers will disappear even if a regulated system provides for most cannabis users - those involved with the black market are merely likely to shift their involvement into other illicit activities.
Other regulatory approaches which require the purchases of drug users to be monitored, which mandate counselling before a licence to purchase is issued and which prescribe treatment if purchase records indicate problem use, might be inappropriate and counterproductive. Restrictive entry criteria and cumbersome administrative requirements may disincline cannabis users to participate in a regulatory scheme. While considerable financial and social costs could be avoided by the operation of this policy, the complex system of licensing and monitoring could involve high administrative costs. These implementation details would need to be clearly worked out to attain a satisfactory balance.
The final option discussed here is free availability of cannabis.
Like the total prohibition option, this is an extreme legislative option. Free availability would mean the absence of any legislative or regulatory restrictions on the substance's cultivation, importation, sale, supply by other means, possession or use. This legislative option is not practised in any country at the moment, but was the approach used in Australia until the 1920s. It must be noted, however, that very little cannabis use occurred up to this time.
Although a strong lobby exists for the liberalisation of cannabis legislation in Australia, few lobbyists advocate totally free availability. Perhaps for pragmatic reasons, at least some form of regulation is generally deemed acceptable. This reflects concerns about the quality of cannabis (eg. the presence of health-impairing pesticide residues), driving or operating machinery while intoxicated by the drug, its use by children, etc. Those who advocate totally free availability do so on the basis of an extreme libertarian position.
It is difficult to imagine the free availability option ever being fully implemented, particularly in Australia. To do so would require governments to abrogate all responsibility in the area of consumer protection, to forego taxation revenue and to take no action to protect particularly vulnerable groups. Considering the position of other drugs in Australian society, it is difficult to maintain an argument for the free availability legislative option. This is because governments have both the right and the responsibility to act to mitigate sources of harm to society. The culture shift in most Western nations to minimise the harm caused by currently licit drugs, especially tobacco and alcohol, means that the free availability of cannabis is not a viable contemporary option.
Compulsory treatment (pp. 71 - 94)
Although only a tiny minority of cannabis users report problems with the drug serious enough to require treatment, it is widely accepted that a prison sentence is an unsatisfactory option for many offenders with drug problems, and diversion for the purpose of treatment is a widely used alternative, one welcomed by judges and magistrates. Criminal justice system involvement is seen as providing an opportunity to intervene in drug users' lives in order to confront them with their drug problems and to bring them into contact with treatment agencies. In some cases, merely attending for assessment is sufficient to bring about a change in a person's attitude. While some dispute exists about the value of coercion, the fact that involuntary clients tend to spend longer in treatment programs than do voluntary clients frequently contributes to their exhibiting more successful treatment outcomes.
It should be noted, however, that few cannabis users need treatment for dependence on cannabis as such. Rather, their needs are more likely to centre around their lifestyles and psychological needs generally. A number of countries, and within Australia the State of Victoria, have legislative provisions relating to civil commitment for the compulsory treatment of drug users, generally people deemed to be drug dependent. In Victoria, for example, a person who is dependent on alcohol and/or other drugs and who is considered suitable for treatment may be committed for treatment for a period of seven days, and at the discretion of the medical officer in charge of the assessment centre, for a second seven days.
Civil commitment is widely used for drug users in the United States. It is generally applied to people who come to the attention of the criminal justice or health systems, and who refuse to enter treatment voluntarily. The individual is referred for medical examination and, on the basis of that examination, may be committed to compulsory treatment.
Naturally, this raises serious issues regarding the civil rights of the individuals involved, as decisions are made about their liberty without referral to a court. The relevance of such programs to legislative options for cannabis in Australia are limited, owing to the fact that very few cannabis users have problems with dependence on the drug, and there is little evidence that treatment, as it is generally understood, has much to offer cannabis users.
Evaluating new legislative approaches to Cannabis (pp. 95 - 98)
The principle of evaluating new policy and legislation is widely accepted but is less frequently observed in practice. In Australia and most other Western nations, insufficient has been done, especially by government agencies, to monitor and evaluate their national drug policies.
This is the case in instances where drugs legislation has been developed incrementally, and also where new approaches have been implemented following detailed policy reviews. Too often evaluation is considered relevant only after a policy has been in place for some time and changes are being considered. To be of most value, new initiatives should be designed and implemented with an explicit and adequately resourced monitoring and evaluation component built into the initiative from the outset. Policy evaluation is a different process from program evaluation, having different goals and research techniques.
Conclusion (pp. 99 - 102)
This paper addresses the legislative options for cannabis in Australia, and argues that choosing from these options requires a process of policy evaluation. Accordingly, the paper considers 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 enquiries, 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.
Cannabis is used mainly as a recreational drug and this pattern of use is the focus of this paper.For completeness, we have included information in the appendixes 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 avaiable policy options lies the possibility of prohibiting the recreational use of cannabis while permitting its use for other purposes.
Australia's National Drug Strategic Plan 1993-97 provides the framework within which we base our recommendations relating to monitoring and evaluation. The plan points out that 'the overall mission of the National Drug Strategy is to minimise the harmful effects of drugs and drug use in Australian society'. Policies and programs in specific areas, including cannabis, should be evaluated in a manner consistent with this national goal. Australia's National Drug Strategic Plan provides a policy framework within which new legislative approaches may be developed. Both existing and newer 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. Decision-making relating to legislative options for cannabis in Australia can be conducted in an ad hoc manner, but clearly the application of more systematic policy choice models is preferable.
Two groups of such decision-making models are available to governments, the 'rational' and 'incremental' approaches. A rational decision-making model is one which goes through logical steps to clarify the context of the legislative initiative, its goals, the rationales for the goals and the likely impacts on key stakeholders. It includes a careful analysis of the data available to evaluate the proposed approach. The process would end in making judgments regarding the appropriateness of the goal or goals, how achievable the goals are and, if the goals are judged to be achievable, how effective, efficient and appropriate are the implementation options available. This systematic, rational approach to policy evaluation is not often enough seen in the development of drugs policy. Nevertheless, the National Drug Strategic Plan provides a clear framework for engaging in this type of analysis.
No best single option for cannabis legislation exists. What is most appropriate will depend upon what goals both policy makers and the community are seeking to achieve.
Our review suggests that two of the five legislative options discussed above are inappropriate in contemporary Australian circumstances. They are the options which we have characterised as total prohibition and free availability. Australia experiences more harm, we conclude, from maintaining the cannabis prohibition policy than it experiences from the use of the drug.
We also reject the legislative option of free availability of cannabis. Our society is one that accepts that governments and others have both the right and the responsibility to intervene in diverse ways to protect people from harm and advance the common good. It would be unreasonable, therefore, to argue that cannabis should be available in an uncontrolled manner.
Without seeking to be exhaustive, below are some indicators which are significant inputs to policy and program evaluation relating to new legislative initiative concerned with cannabis:
o The impact on social justice in Australian society of the implementation of cannabis legislation
o Costs of cannabis controls, including the transfer of resources
o The effectiveness and efficiency of the implementation of policies and legislation
o Public opinion concerning cannabis
o Cannabis consumption patterns and levels
o Numbers and characteristics of the people presenting to treatment agencies with cannabis-related health and social problems
o Cannabis-related offences
o Cannabis-related driving and motor vehicle crashes
o THC levels of the cannabis available to consumers
o Cannabis-related workplace accidents
We conclude that Cannabis law reform in required in this country.
Many options for policy, legislation and implementation processes exist within the broad categories of prohibition with an administrative decision that it is inexpedient to prosecute people for minor cannabis offences, prohibition with civil penalties, partial prohibition and regulated availability.
We believe, on the available evidence, that widely accepted 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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