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University of New South Wales Law Journal Student Series |
CRIMINALISATION OF CANNABIS IN NEW SOUTH WALES: IS HARM MINIMISATION GOING UP IN SMOKE?
TADEH KARAPETIAN
Cannabis is criminalised in New South Wales (NSW) with use, possession, cultivation and supply being the key offences. This paper presents an analysis of the legislation, explanatory memoranda and government reports surrounding cannabis law and policy in Australia, and a theoretical discussion of expert opinions on cannabis policy. This paper questions whether the current cannabis law and policy in NSW is aligned with the objective to minimise harm and whether the decriminalisation of cannabis is a better framework for this purpose. First, this thesis will frame the modern scientific and medical research that confirms that cannabis use is not inherently harmful to humans but its heavy and sustained use can cause adverse mental and physical health effects. Secondly, this thesis will briefly examine the history, political influences and theory behind cannabis criminalisation policy in NSW. This paper will analyse NSW legislation, reports and statistics and argue that the criminalisation of cannabis is an ineffective and inefficient use of resources that fails to prevent cannabis use or curb supply networks. It will demonstrate that the Government’s objective of minimising harm has been undermined by the criminalisation policy, through the stigmatisation of cannabis users, the preservation of the black market, the limitations of diversion schemes and the restriction of medicinal use. The operation of cannabis decriminalisation in the Australian Capital Territory, Northern Territory and South Australia and the policy in general is assessed through examining legislation and secondary literature. It is put forth that this alternative cannabis policy will reduce the inadvertent harms experienced under criminalisation, through the application of more proportionate penalties for minor cannabis offences. This thesis recommends that NSW decriminalise minor cannabis offences to further the objective of harm minimisation.
1. WHAT IS CANNABIS?
Cannabis is a naturally occurring plant that induces psychoactive effects upon the user when ingested in certain forms. Tetrahydrocannabinol (THC) is the component that causes the mental high upon users. However, the plant contains hundreds of other chemical compounds that all have potential medical uses.[1] Modern medical and scientific studies confirm the numerous medicinal benefits of the plant, and debunk a lot of myths about the dangers of cannabis use. Clinical trials support the use of cannabis to reduce chronic pain, treat chronic neuropathic or cancer pain, treat spasticity due to multiple sclerosis,[2] for anti-inflammatory properties,[3] as an appetite stimulant, to reduce epileptic seizures and to treat depression or PTSD.[4]
There is little evidence to support that long-term cannabis use causes permanent brain damage or cognitive harm.[5] Studies on the use of cannabis by adolescents do not indicate a consistent link between cannabis use and psychological or behavioural problems.[6] Pure THC can cause the user to experience an acute psychotic state, but this is short-lived.[7] Cannabis use alone does not directly cause schizophrenia but it may speed up the onset of the disease in individuals that are predisposed.[8] Heavy and sustained use of cannabis has been associated with increased risk of poor mental health, poor psychosocial outcomes, chronic bronchitis and lack of motivation.[9]
On the medical and scientific front, there is an overwhelming amount of evidence supporting the freedom of recreational cannabis use and contesting the political labelling of cannabis as a dangerous substance. The debate on the regulation of cannabis should centre on the best policy to minimise harm for individuals and society, and not solely the physical and mental effects of cannabis. In section 2, I will demonstrate that criminalisation causes greater harm in its effort to eliminate what is deemed as a harmful substance, despite the prevalence of safe cannabis use in NSW.
2. CRIMINALISATION OF CANNABIS IN NEW SOUTH WALES
A: History and Influence
In this section I will identify and critique the reasons for criminalisation in NSW and demonstrate that the objectives of the policy are not being met, namely, curbing cannabis use and supply, minimising the harms of cannabis use and creating a safer community. Cannabis use was freely permitted in Australia since the arrival of the First Fleet and dependent drug use was never a material issue, in the 19th and early 20th century.[10] ‘Australia’s international subservience’ to greater powers and their membership to the League of Nations influenced the development of a domestic prohibitionary drug policy.[11] The League of Nations, under pressure from USA, convened to form the The International Opium Convention 1925.[12] In 1926, Australia ratified this treaty, federally prohibiting the importation and recreational use of cannabis in Australia for the first time, with State laws soon reinforcing this stance.[13] The USA based Reefer Madness Campaign spread propaganda and hysteria to Australia in 1938; painting cannabis as a drug that maddens users and sparking a culture to prohibit cannabis entirely.[14] The 1960s brought forth an era of counterculture and widespread recreational drug use.[15] The Australian governments responded with increased law enforcement and an overhaul of drug laws, including stricter penalties for drug offences.[16] In the early 70s, there was a greater tolerance towards cannabis with the Senate Standing Committee recommending the UN to reclassify cannabis to a lesser schedule and the Whitlam Government seeking to decriminalise cannabis.[17]
Australia is a signatory to the Single Convention on Narcotic Drugs (1961), a UN international treaty that classifies cannabis under Schedule IV. This proposes that cannabis is ‘particularly liable to abuse and to produce ill effects’ and that ‘liability is not offset by substantial therapeutic advantages’.[18] This treaty sets the international standard for cannabis to be criminalised for personal use, despite the plethora of evidence displaying its substantial therapeutic advantages. The Australian and NSW Governments closely follow international standards to preserve their international reputation as a conservative, safe and stable country.[19] In contrast, decriminalisation in South Australia, Northern Territory and ACT evidence a shift away from the strict definition of these international standards, towards a modern harm minimisation approach.
The politics surrounding cannabis and drug policy have ensured that criminalisation has remained in force.[20] Some suggest that historically the purpose of the policy has been to oppress the left wing, the youth and the alternative by targeting the drugs they use.[21] The current stance has been good politically for the right wing, so they have not been compelled to scientifically re-examine the issue or to investigate the individual and societal effects of the criminalisation of cannabis.
B: The Modern Approach
In 1985, Australia and its States adopted a National Drug Strategy, combining prohibitionary measures and harm reduction objectives, which have endured over time.
‘Harm minimisation is an approach that aims to reduce adverse health, social and economic consequences, by minimising or limiting the harms and hazards of drug use for both the community and the individual, without necessarily eliminating use’.[22]
The National Cannabis Strategy 2006-2009 demonstrates that the Government aims to educate the community about cannabis, prevent the use of cannabis, assist those who already use cannabis to minimise harm and reduce the individual and societal problems associated with cannabis use.[23] This distribution of efforts results from the acknowledgment that cannabis use is prevalent and ingrained in society. The Government operates on the basis that heavy regular use of cannabis can cause negative mental and physical health effects.[24] A criminalisation policy, which targets all levels of cannabis use, is not the best way to prevent the problematic use by the minority. Other harms associated with cannabis include the stigmatisation of convicted users, dangerous criminal activity related to cannabis supply, negative economic impacts for individuals and society and the restriction of civil liberty. The harm minimisation approach is undermined by the criminalisation of cannabis, which arguably causes greater harm in society than cannabis use itself, as will be explained in section 2D.
C: The Law And Policy Of New South Wales Surrounding Cannabis
This section will critique the effectiveness of the criminalisation policy and demonstrate the consequent harms of this legal framework. In NSW, use, possession, cultivation and supply of cannabis are criminalised by the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA).[25] Cannabis offences are penalised less harshly when compared to identical offences involving other prohibited drugs; an example where the lower risk of harm that cannabis poses is acknowledged. The cannabis offences of use and possession are summary offences, subject to a maximum penalty of 20 penalty units and 2 years imprisonment.[26] The criminal penalties for use and possession offences aim to discourage demand for cannabis. In 2006, there were 10,549 “incidents”[27] of possession and/or use of cannabis recorded in NSW.[28] In 2011, the number of incidents recorded was 20,713 and in 2015, the figure was 27,173.[29] The continued increase in the number of cannabis possession/use incidents recorded over the last 10 years suggests, firstly, that demand and levels of cannabis use remain constant despite criminalisation and secondly, that policing efforts and resources targeting these crimes has increased.
In 2013, an estimated 9.5% of individuals in NSW, aged over 14, recently used cannabis,[30] indicating that the criminal penalties do not completely deter cannabis use or possession.[31] The estimated figure of individuals in NSW, aged over 14, who had recently used cannabis was 16.7% in 1998.[32] The data for South Australia, Australian Capital Territory and Northern Territory (states that have decriminalised cannabis) displays similar or greater decreases in the rates of cannabis use since 1998.[33] Therefore, the policies of decriminalisation and criminalisation had a relatively equal impact on the level of cannabis use in Australia between 1998 and 2013. The deterrent objective of NSW cannabis law relies on users fearing detection and conviction rather than moral objection.[34] However, detection of a victimless crime that is typically committed discretely or privately is quite difficult.[35] The existence of criminal penalties will not stop cannabis use and possession.
Cultivation or supply of cannabis may be tried summarily in the Local Court, as long as the amount is below the specified commercial quantity.[36] Summary disposal of these offences reduces the maximum penalty to a fine of 100 penalty units and 2 years imprisonment, or 50 penalty units and 2 years imprisonment for amounts less than the specified small quantity.[37] However, the prosecution has the power to elect for trial on indictment, which greatly increases the maximum penalty faced by the defendant.[38] Where the offence pertains to a commercial quantity or cultivation for a commercial purpose, the maximum penalty is a fine of 3500 penalty units and 15 years imprisonment.[39] An offence relating to a large commercial quantity (five times the amount) attracts an even harsher maximum penalty.[40] A more lenient stance towards personal growers or small-scale social suppliers is reflected in the penalties. However, a criminal conviction is still a harsh punishment for these individuals, which most likely do not pose harm to society.
The DMTA treats offences directly involving cannabis cultivated by enhanced indoor means more harshly. Cultivation of cannabis plants by enhanced indoor means between 5 and 50 in amount is an indictable offence attracting a maximum penalty of 3500 penalty units and 15 years imprisonment.[41] There is no opportunity for summary disposal of this offence. 50 or more cannabis plants cultivated by enhanced indoor means will be considered as a commercial quantity, as opposed to five times that amount for cannabis plant cultivated by other means.[42] The same ratio is used when classifying a large commercial quantity. The DMTA sets out a separate offence for the cultivation of prohibited plants by enhanced indoor means, in the presence of children, which is met with a tougher penalty.[43] These penalties are clearly aimed at deterring organised criminal operations that distribute cannabis on a large scale for illegal profit.
The current legal framework is ineffective in curbing the supply and availability of cannabis. Resources are being wasted and the community experiences little benefit from the attempt to reduce the prevalence of a substance that remains so widely available, despite its illegality. Cannabis supply attracts a criminal penalty in all of Australia, but an estimated 20.6% of people, aged over 14, had the opportunity to use cannabis in 2013.[44] In 2004, the same percentage of people, aged over 14, had the opportunity to use cannabis.[45] After 10 years, the availability of cannabis in NSW has remained the same. In NSW, the “criminal incidents”[46] of dealing and/or trafficking cannabis rose from 698 in 2010 to 992 in 2013, and then decreased to 733 in 2015.[47] The trend in the data suggests that the dealing and trafficking of cannabis continues in NSW and will not cease, regardless of the actions of law enforcement. The risk of conviction and legal penalties make the act of supplying cannabis more lucrative because there are fewer competitors in the market.[48] There is a constant flow of new cannabis dealers replacing those stifled by law enforcement. It is unrealistic to believe that demand for cannabis will drop if the law restricts suppliers.[49] The high demand for cannabis remains constant, so the prohibition continues to fail.[50]
Alongside large criminal organisations exist small-scale social suppliers of cannabis that serve friends or others in their close social network. Surveys have revealed that individuals who have engaged in social supply do not perceive themselves as dealers or criminals and do not pay mind to the serious criminal charge that they potentially face.[51] This illustrates that the harsh criminal penalties in NSW are ineffective in deterring small-scale cannabis supply. However, these social suppliers and personal growers are typically motivated by social benefit and not profit;[52] their actions do not pose real danger to society. The seriousness of their crime does not justify the resultant harm of the applicable criminal penalty, as explained in section 2D.
D: The Broader Societal Consequences Of The Criminalisation Of Cannabis
Dr Neal Blewett, the former Australian Health Minister, commented that the law would ‘be an ass, if in seeking to protect a person from his own actions, it imposes’ greater harm than the likely effects of the prohibited actions.[53] The stigma attached to the criminal label greatly affects individuals convicted for cannabis offences. A criminal conviction against a person’s name typically has negative implications upon their current and future employment, accommodation or travel.[54] This greatly affects socially disadvantaged individuals because their opportunities are further reduced, increasing their likelihood of recidivism.[55] Most instances of cannabis use are occasional, experimental and pose little harm to users or others. The enduring harm to a person’s reputation and identity caused by a criminal conviction is disproportionate to the apparent harm caused by cannabis use, possession, cultivation for personal use and small-scale social supply.[56]
Cannabis arrests comprised almost 60% of all drug arrests in NSW in 2013-14.[57] An incredulous 89% of those cannabis arrests were for possession or use offences.[58] The criminalisation policy over-targets low risk offenders through penalising personal use, possession of small amounts and small scale cultivation.[59] These offences can hardly be compared to the harmful activities of organised criminal associations.[60] It is ridiculous that such a significant portion of police and criminal justice resources are being squandered on ineffectively enforcing these low risk cannabis offences.[61] The supply of cannabis is not being effectively hindered but harm is being inflicted upon those convicted for minor cannabis offences through disproportionate punishment, stigma and compounding social disadvantage. Decriminalising or legalising the use and possession of cannabis would free up resources for better harm minimisation strategies or preventing more serious crimes that pose much greater harm to society.
The dominant source of cannabis in Australia is organised large-scale producers.[62] It is estimated that Australians spend over $7 billion on cannabis annually.[63] This amount of money is being funnelled into an underground black market that is criminal, unregulated and not subject to tax. Money and power is handed over to cannabis dealers that may be involved in other illegal activities, such as ‘money laundering, violence and corruption of officials’.[64] Governments lose out on a significant revenue stream because the cannabis trade is not subject to taxation. Purchasers of cannabis are not afforded the conventional consumer protections of the law. The quality of the cannabis sold is not governed by any standard. Hence, users may be exposed to dangers such as harmful pesticides or chemicals used in cultivation or substitution with synthetic cannabis. In relinquishing control of the market, the Government cannot impose age restrictions upon purchasers. The youth are able to freely purchase cannabis.
The black market for cannabis is a well-noted consequence of the prohibitionist model and at the same time its existence poses greater harm to society than the use of cannabis itself.[65] Many cannabis users are deterred from growing their own plants because of the harsh criminal penalties that apply to cultivation offences. Individuals are indirectly encouraged to connect with drug dealers to obtain cannabis because they are able to pass on the risk of harsher criminal penalties.[66] Through these criminal connections users are often exposed to other illicit drugs or criminal activities that are typically much more harmful.[67] Tolerating cannabis use, possession and cultivation for personal use through decriminalisation or legalisation can separate cannabis users from exposure to other illicit drugs and break up the apparent gateway effect of cannabis.
E: Diversion From Criminalisation
This section will analyse the effectiveness of the NSW Government’s diversionary strategies and its interplay with the criminalisation policy. The NSW Cannabis Cautioning Scheme commenced in April 2000, giving NSW police the discretion to formally caution minor cannabis offenders.[68] An offender may be issued with two official cannabis cautions before being criminally charged with an offence. Upon receiving a second caution, an offender must undertake an education session on cannabis use.[69] These cautions may only be issued where the offender is in possession of less than 15 grams of cannabis.[70] They cannot be issued for cultivation or supply charges. The aim of the Cannabis Cautioning Scheme is to divert individuals committing minor cannabis offences away from the court system and towards treatment options to curb their drug use.[71] 5327 cannabis cautions were issued in NSW in 2013 and the amount was about the same in 2011 and 2012.[72] The ineffectiveness to reduce demand for cannabis is reinforced by these statistics.
The problem with the diversionary approach is that cannabis users generally do not view their use either as a crime or harmful in and of itself. A caution can have the desired effect of the person re-evaluating their drug use, in consideration of the potential legal consequences that they may face. Conversely, a caution may simply cause the individual to act more carefully and discretely with his/her cannabis use, or have no effect at all. The latter effect is supported by the fact that only about 38% of offenders receiving a second caution called the dedicated helpline, which is mandatory but not enforced, and even less sought counselling or referral to treatment.[73] The diversion separates these individuals from the stigma attached to being a convicted offender, but only until the next charge. This scheme theoretically targets problematic or heavy cannabis use because occasional users are less likely to be apprehended three times for minor cannabis offences. The criminal penalty given on the third charge projects deterrence but is not a suitable solution. The penalty itself, the resultant stigma and consequent harms are worse than the harm resulting from cannabis use or possession. A third minor cannabis offence would indicate a greater need for treatment. Criminalisation subverts harm minimisation through the punishment of problematic users rather than the provision of treatment.
The Cannabis Cautioning Scheme is merely a police guideline, placing discretion into the hands of police officers. Individuals diverted from criminal convictions through cannabis cautions had much lower reoffending rates than those dealt with by a court.[74]
Unfortunately, the rates of cannabis cautioning across local area commands have been inconsistent. A greater number of charges for cannabis offences have been issued in situations when cautions may have been appropriately applied.[75] The lack of a legislated cautioning scheme means that there is inequality in police practice, where certain minorities or regions may experience greater criminalisation and less diversion. The potential harms are amplified through increased criminal convictions and less opportunities for drug education, treatment or counselling.
Offenders under the age of 18, which are charged with use, possession or cultivation of cannabis, may be dealt with under the Young Offenders Act 1997 (NSW).[76] The offence must have pertained to less than 15 grams of cannabis or less than 5 cannabis plants to come under the scope of this Act.[77] This Act gives police and courts the discretion to issue warnings or cautions and to order participation in youth justice conferences for these offences. In 2009 - 2010, young offenders were subject to a 25% chance of being charged for minor cannabis offences, instead of receiving a caution, warning or order for a youth justice conference.[78] The uptake of diversion and the goal of minimising harm are weakened by police discretion, when youth are subject to a material risk in being criminally charged for low-risk cannabis offences. The stigma attached to the criminal label can be detrimental to a young person when they are forming their identity and may perpetuate their defiance of the law.[79]
The NSW Government’s diversionary strategies are a departure from a strict prohibitionary stance but the goal of minimising harm is undermined by the criminal law. Users are diverted from criminal penalties, in favour of education and treatment. The Government provides an opportunity for the individual to resolve their personal problems, which, on the surface, reduces the harm to the offender.[80] However, the cautioned user may be convicted for another minor cannabis offence in the future, even when they are low-risk offenders and not problematic users. The law continues to attach a criminal identity to cannabis users and society continues to suffer through greater social disadvantage, the wrongful stigmatisation of cannabis users and the wasteful allocation of criminal justice resources.[81]
F: Introduction of Medicinal Cannabis Schemes
In NSW, there have been recent developments in law and policy surrounding the use of cannabis as a medicinal substance. In 2015, the NSW government established the Centre for Medicinal Cannabis Research and Innovation, which has been funded to oversee clinical trials, research and education.[82] In December 2014, the NSW government commenced the Terminal Illness Cannabis Scheme, which allows patients with a terminal illness to register their name so they are protected from certain criminal charges associated with their cannabis treatment, such as cannabis possession.[83] The Narcotic Drugs Amendment Act 2016 (Cth) came into force in February 2016. It provides a legislative framework facilitating the cultivation of cannabis to provide Australian patients with medicinal cannabis treatment.[84] These changes illustrate a shift in attitudes, which aligns with the progression of medicinal cannabis policies around the globe. The United Nations even expressed their support for “the availability of internationally controlled drugs for medical and scientific purposes” in the April 2016 General Assembly.[85]
The new regulations in NSW allow an authorised doctor to prescribe medical cannabis products that are either manufactured locally or imported, with each prescription and patient subject to a review.[86] Doctors’ credentials and specialty medical knowledge are evaluated before they are authorised.[87] Medical cannabis products are only available to persons over the age of 18.[88] These checks and balances have been set in place to prevent illegitimate patients obtaining cannabis through this system and to protect society from potential negative long-term effects of the medicine. The State Government’s perspective is contrary to the vast array of anecdotal evidence that supports the safety of using cannabis as a treatment.[89] In attempting to strictly separate medicinal use from recreational use, many people that would benefit from the medicinal properties of cannabis will continue to be criminalised in NSW. People that do not meet the strict patient requirements but feel the need to use cannabis medicinally will typically resort to acquiring the substance through illegal means. There is no logical reason for responsible medicinal cannabis users to be subject to criminal conviction. These stringent barriers to accessing medicinal cannabis are unreasonable.
3. THE DECRIMINALISATION OF CANNABIS: AN ALTERNATIVE APPROACH
A departure from criminalisation does not mean that Australia will breach its international treaty obligations. The decriminalisation of cannabis technically falls within the legal boundaries of the three main UN treaties that present a model for drug policy, namely, the 1961 Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances of 1971 and the Convention Against Illicit Traffic in Narcotic Drugs & Psychotropic Substances of 1988.[90] Furthermore, the United Nations Office on Drugs and Crime and the World Health Authority support the decriminalisation of drugs for personal use.[91] In April 2016, the United Nations held a General Assembly Special Session on the World Drug Problem (“UNGASS 2016”). Notably, Jane Philpott, the Canadian Minister of Health, admonished the criminal treatment of drug users and announced Canada’s intention to legalise cannabis in 2017.[92] Disappointingly, UNGASS 2016 reiterated the call for ‘a society free of drug abuse’ by 2019, rather than advocating for policies based on harm minimisation.[93] A global shift away from the criminalisation of cannabis is transpiring, albeit gradually. Alex Wodak recommends that Australia should pursue independent evidence-based drug policies instead of conforming to an artificial global consensus.[94]
This section will assess the effectiveness of the decriminalisation of cannabis in minimising harm for individuals and society, in comparison with the legal framework in NSW. Three Australian jurisdictions have decriminalised minor cannabis offences: South Australia in 1987, Northern Territory in 1996 and Australian Capital Territory (ACT) in 1993. The decriminalised offences include cultivation of one or two cannabis plants, possession of cannabis (less than 50 or 100g of plant material) and cannabis use (outside of public places).[95] However, in Northern Territory, cannabis use has remained a criminal offence that cannot be expiated.[96] In South Australia, a cannabis expiation notice must be issued for simple cannabis offences; prosecution of the offence may follow if the notice is not complied with.[97] In contrast, police in the ACT and Northern Territory have discretion to issue a cannabis expiation notice equivalent for the prescribed cannabis offences.[98] It is not mandatory procedure and criminal proceedings can still be instituted against the alleged offender.[99] These three states provide for the expiation of criminal charges if the individual manages to pay the civil penalty amount prescribed in the respective notice.[100] Cannabis use is not encouraged under decriminalisation. The civil penalties for minor cannabis offences are still intended by Parliament to act as a deterrent.[101] The goal is to create a more proportionate result that works towards preventing and mitigating any harm that may flow from the minor cannabis offence.
One of the foremost goals of the Australian National Cannabis Strategy 2006-2009 is to prevent cannabis use in general.[102] The evidence demonstrates that decriminalisation is not any less effective than criminalisation in the prevention of cannabis use. The National Drug Strategy Household Survey 2013 identified that the level of recent use of cannabis in NSW dropped from 16.7% in 1998 to 9.5% in 2013.[103] In South Australia the level of recent use went from 17.6% in 1998 to 11% in 2013.[104] In ACT recent use of cannabis descended from 20.3% in 1998 to 10.1% in 2013.[105] In Northern Territory the level of recent use dropped from 36.5% in 1998 to 17.1% in 2013.[106] The level of recent use of cannabis in the entirety of Australia fell by 7.7% from 1998 to 2013.[107] This data demonstrates that the policies of decriminalisation and criminalisation have had similar effect on the change in levels of cannabis use, in Australia, between 1998 and 2013.[108] It is likely that other factors were at play when considering the falling percentages of recent cannabis use in each state. However, we can conclude that the empirical data does not support the notion that a criminalisation policy is more effective in preventing cannabis use. Evidence from America reinforces this statement and accounts for different societal factors influencing the data. In the 1970s, 11 American states effectively decriminalised cannabis use. The level of use has not risen beyond that experienced by comparable states where cannabis use is classified as a criminal offence.[109] Cannabis use amongst adolescents is of great concern to policymakers and society. Adolescents are vulnerable to being caught up in drug use and habits are often developed at a young age. South Australia reported the lowest rates of recent use for the 14-19 year old age group but Northern Territory and ACT reported the highest rates.[110] This comparison of statistics and those mentioned earlier indicates that there is no consistent evidence to establish a correlation between decriminalisation and an increase in cannabis use in society.[111] Therefore, a switch to this legal framework in NSW will not hinder the National Cannabis Strategy goal to prevent the use of cannabis.[112]
Minor cannabis offences are not held to the same standard as most other crimes or even other illicit drug offences in Australian society. Two-thirds of Australians displayed support for decriminalisation in expressing that possession of cannabis for personal use should not be a criminal offence.[113] A discrete choice experiment in Australia found that 83% of the sample preferred a decriminalisation policy to the current NSW policy of criminalisation combined with a cautioning scheme.[114] Individuals guilty of cannabis possession or use are typically not the cause of violent acts.[115] It has been shown through surveys that the majority of minor cannabis offenders in South Australia and Western Australia are otherwise law-abiding and have respect for the police.[116] Societal views and supporting evidence are in agreement with the notion that minor cannabis offences do not cause material harm to the person involved and the risk of harm to society is insignificant. Consequently, these low-risk offences should be penalised proportionately. Proportionality is met where the cost of a penalty to the offender does not exceed the actual harm caused by the offence.[117] In states imposing criminalisation, the stigmatisation of minor cannabis offenders causes unfair and unjustified consequential harm that is reduced by cannabis decriminalisation. Reporting of negative employment consequences, ‘relationship problems, accommodation problems and further involvement with the criminal justice system’ is greater where cannabis is criminalised compared to where civil penalties are applied.[118] Civil penalties are a more proportionate response when considering the seriousness of cannabis use, possession or small-scale cultivation.[119]
‘There is still strong evidence of undeterred large-scale supply of cannabis’ in all Australian jurisdictions, displaying the ineffectiveness of the two discussed policies in erasing the black market.[120] However, the decriminalisation of small-scale cultivation separates the drug market between small-scale operations for personal use or social supply and large-scale criminally organised cultivation.[121] This reflects the societal interest in efficiently utilising criminal justice resources to target the dangerous activities of criminal organisations. In addition to freeing up resources, decriminalisation reduces the likelihood that cannabis users come into contact with the black market.[122] Small-scale cultivation is labelled as a low-risk offence, which means it is somewhat tolerated. Individuals are more likely to grow their own cannabis supply, since the civil penalty that they risk incurring is less harmful than a criminal conviction. The same logical argument stands for small-scale social supply, where growers supply cannabis to their friends. These small operations entail safer and more honest dealings, when compared to the interaction between cannabis users and organised large-scale drug dealers. Consequently, there is greater separation between cannabis and more harmful illicit substances, as well as a minimisation of other risks discussed above in section 2D.
The financial cost of running an ineffective cannabis prohibition policy is enormous and wasteful. It was explained earlier that a criminal conviction negatively impacts a person’s future prospects for employment and causes other difficulties but does little to discourage cannabis use. Furthermore, in the event that a person is imprisoned for cannabis use, possession, small-scale supply or cultivation, there is no evidence that incarceration curbs the habits of a drug user.[123] Therefore, the financial cost of the police investigation and arrest, the prosecutor’s time, court proceedings and incarceration are clearly not justified. According to the Drug Policy Modelling Program, Australia spent a total of $1.6 billion in relation to illicit drugs, in the financial year of 2009/10.[124] The Program found that 64.1% of the total budget was dedicated to law enforcement.[125] This category encompasses police expenditure and ‘costs of prosecuting traffickers, dealers and users’.[126] Prevention, treatment and harm reduction only accounts for 34.5% of the budget.[127] Although cannabis is only one illicit drug out of the many, it is the most prevalent in Australia. The decriminalisation of cannabis in NSW would make a significant difference in the distribution of state resources in relation to the drug problem. More expenditure could be placed on prevention, treatment, harm reduction and especially targeting harder drugs, which is a greater priority than the conviction of these non-violent offenders.
The use of a civil penalty scheme is more cost effective than the criminalisation policy and is even estimated to generate revenue.[128] Issuing a cannabis expiation notice is an instant penalty that does not attract the costs of prosecution and associated court costs, which frees up resources to target greater harm. The ease of issuing a notice has lead to a greater number of civil penalties issued where police may have exercised their discretion to caution the offender informally.[129] Under this policy, cannabis users must deal with a greater likelihood of experiencing financial harm. Offenders that do not pay the civil penalty will be subject to a criminal conviction and the established harms that flow on from that conviction. Socially disadvantaged cannabis users are more likely to be criminalised because of their inability to afford payment of civil penalties. Institutional inequality is exhibited in the legal framework of decriminalisation because the issue of civil penalties do not necessarily minimise harm for all cannabis users. South Australia, Northern Territory and ACT have legislated to combat this deficiency through allowing expiation notices to be paid by instalments, through community service or over an extended period of time.[130]
CONCLUSION
Cannabis is not inherently harmful but mental and physical health problems may arise from heavy sustained use of the substance. The criminalisation of cannabis in NSW in effect attempts to deter cannabis use completely, but the State Government simultaneously acknowledges the firm prevalence of cannabis in society and aims to minimise any resulting harm. The latter goal is undermined by the criminal penalties applicable, especially to minor cannabis offences. Low-risk offenders are subject to the stigmatisation attached to a criminal conviction. The diversionary schemes in NSW, including cannabis cautioning, provide certain offenders with a chance for education and treatment. However, the looming pressure of criminal conviction, which coerces individuals to alter their behaviour, undermines diversion. The unwelcome presence of large-scale criminal organisations in the cannabis trade is another negative consequence of prohibitionary policy, which adds violence, more harmful illicit drugs and further crime to the mix. Lastly, the strict requirements of the law deprive many medicinal users from much needed treatment. The cost to society is great, in the form of inadvertent harm caused by criminalisation, as well as the monetary and time costs incurred in ineffectively trying to reduce demand and supply of cannabis.
Cannabis decriminalisation in NSW will minimise harm through reducing instances of criminal conviction of individuals that do not pose a material risk of harm to others. The civil penalty applicable to minor cannabis offences embodies fairness and justice because it is a more proportionate response than a criminal conviction, which may encompass a larger fine and a term of imprisonment. These positive effects of decriminalisation are less likely to reach those minor cannabis offenders that are socio-economically disadvantaged. However, a significant amount of criminal justice resources will be freed up and civil penalties will generate revenue for the State, in order to target more pressing social problems. The levels of cannabis use will hardly be affected by a shift to this alternative policy and the net effect upon society in NSW, in terms of minimising harm, will be positive. NSW should follow the examples of cannabis decriminalisation in South Australia, ACT and Northern Territory and begin fulfilling their goal of harm minimisation.
The global approach to drug policy is slowly shifting with the legalisation of cannabis in Uruguay, decriminalisation of all drugs in Portugal, the long-standing policy in The Netherlands and contemporary progress in the USA. Governments must recognise that they cannot strictly control the behaviour of citizens. Legalisation and taxation of cannabis, and potentially other illicit drugs, may be a way forward in minimising harm.
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Davey, Melissa, ‘Drug expert says Australia's presence at UN summit a waste of money’, The Guardian (online), 8 April 2016, <https://www.theguardian.com/society/2016/apr/08/drug-expert-says-australias-presence-at-un-summit-a-waste-of-money>.
Dawkins, Kevin, ‘Cannabis Prohibition: Taking Stock of the Evidence’ [2001] OtaLawRw 3; (2001) 10(1) Otago Law Review 39
Earleywine, Mitch & Mallory Loflin, ‘Curious consequences of Cannabis Prohibition’ (2013) 6 Albany Government Law Review 438
Goh, Derek & Jessie Holmes, ‘New South Wales Recorded Crime Statistics 2013’ (NSW Bureau of Crime Statistics and Research, 10 April 2014)
Gould, Julie, ‘The Cannabis Crop’ (2015) 525(7570) Nature S1
Government of Canada, Plenary Statement for the Honourable Jane Philpott Minister of Health - UNGASS on the World Drug Problem (20 April 2016), Government of Canada Website <http://news.gc.ca/web/article-en.do?nid=1054489>
Hall, Wayne, ‘What has research over the past two decades revealed about the adverse health effects of recreational cannabis use?’ (2015) 110(1) Addiction 19
Hill, K. P., ‘Medical Marijuana for Treatment of Chronic Pain and Other Medical and Psychiatric Problems: A Clinical Review’ (2015) 313(24) The Journal of the American Medical Association 2474
Hill, Matthew, ‘Perspective: Be clear about the real risks’ (2015) 525(7570) Nature S14
Hosking, Richard & John Zajicek, ‘Pharmacology: Cannabis in neurology—a potted review’ (2014) 10 Nature Reviews Neurology 429
Iversen, L, ‘Long-term Effects of Exposure to Cannabis’ (2005) 5(1) Current Opinion in Pharmacology 69
Jiggens, John, Marijuana Australiana: Cannabis Use, Popular Culture and the Americanisation of Drugs Policy in Australia, 1938 - 1988 (PhD Thesis, Centre for Social Change Research, Queensland University of Technology, 2004)
Lenton, Simon & Penny Heale, ‘Arrest, Court And Social Impacts Of Conviction For A Minor Cannabis Offence Under Strict Prohibition’ (2000) 27(4) Contemporary Drug Problems 805
Lenton, Simon et al, ‘Infringement versus conviction: The Social Impact Of A Minor Cannabis Offence in South Australia and Western Australia’ (2000) 19(3) Drug and Alcohol Review 257
Lenton, Simon, et al, ‘The Social Supply Of Cannabis Among Young People In Australia’ (December 2015) 503 Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice
Manderson, Desmond, From Mr Sin to Mr Big: a history of Australian drug laws (Oxford University Press, 1993)
Mattick, Richard P., et al, ‘National Cannabis Strategy 2006-2009’ (Ministerial Council on Drug Strategy, 15 May 2006)
McLeod, Ross, Alison Ritter & Marian Shanahan, ‘Government Drug Policy Expenditure in Australia – 2009/10’ (Monograph No 24, Drug Policy Modelling Program, National Drug and Alcohol Research Centre, June 2013)
Nagarkatti, Prakash et al, ‘Cannabinoids as novel anti-inflammatory drugs’ (2009) 1(7) Future Medicinal Chemistry 1333
National Drug Strategy Committee, Commonwealth Parliament of Australia, The Social Impacts of the Cannabis Expiation Notice Scheme in South Australia (1998)
New South Wales Auditor-General, ‘The Effectiveness of Cautioning for Minor Cannabis Offences’ (Performance Audit Report, April 2011) 19
NSW Bureau of Crime Statistics and Research, ‘Data from: Recorded Incidents of Dealing and/or Trafficking of Cannabis in All of NSW’, electronic data set, NSW BOCSAR Local Government Area Crime Trends Tool, reference number: 2016-573298
NSW Bureau of Crime Statistics and Research, ‘Data from: Recorded Incidents of Possession and/or Use of Cannabis in All of NSW’, electronic data set, NSW BOCSAR Local Government Area Crime Trends Tool, reference number: 2016-573284
NSW Department of Health, Clinical Trials of Cannabis Products (27 July 2015) <http://www.health.nsw.gov.au/cannabis/Pages/clinical-trials.aspx>
NSW Government, Terminal Illness Cannabis Scheme Fact sheet for adults with a terminal illness and their carers (2014) <http://www.nsw.gov.au/fact-sheet-adults-terminal-illness-and-their-carers>
Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, GA Res S-30/1, 30th special sess, 1st plen mtg, Agenda Item 8, UN Doc A/RES/S-30/1 (19 April 2016)
Power, R. A., et al, ‘Genetic Predisposition To Schizophrenia Associated With Increased Use Of Cannabis’ (2014) 19 Molecular Psychiatry 1201
Rickard, Maurice, ‘Reforming the Old and Refining the New: A Critical Overview of Australian Approaches to Cannabis’, (Research Paper 6, Parliamentary Library, Parliament of Australia, 10 October 2001)
Rowe, James, ‘Pure politics: a historical look at Australian drug policy’ [2001] AltLawJl 47; (2001) 26(3) Alternative Law Journal 125
Shanahan, Marian, Karen Gerard & Alison Ritter, ‘Preferences For Policy Options For Cannabis In An Australian General Population: A Discrete Choice Experiment’ (2014) 25 International Journal of Drug Policy 682
Single, Eric, Paul Christie & Robert Ali, ‘The impact of cannabis decriminalisation in Australia and the United States’ (2000) 21(2) Journal of Public Health Policy 157
Sinha, Jay, The History And Development Of The Leading International Drug Control Conventions (21 February 2001) Parliament of Canada <http://www.parl.gc.ca/content/sen/committee/371/ille/library/history-e.htm#C. The 1925 Geneva Opium Conventions>
Smith, Saxon, ‘Clearing the smoke’ (2016) 8(5) The NSW Doctor 13.
Stephenson, J ‘Cannabis Consequences’ (2004) 291(23) The Journal of the American Medical Association 2809
Sutton, Adam, & Elizabeth McMillan, ‘Criminal justice perspectives on South Australia's Cannabis Expiation Notice procedures’ (2000) 19(3) Drug and Alcohol Review 281
Swift, Wendy, Jan Copeland & Simon Lenton, ‘Cannabis and Harm Reduction’ (2000) 19 Drug and Alcohol Review 101
Weatherburn, Don, ‘The Pros and Cons of Prohibiting Drugs’ (2014) 47(2) Australian and New Zealand Journal of Criminology 176
Whiting et al, ‘Cannabinoids for Medical Use: A Systematic Review and Meta-analysis’ (2015) 313(24) The Journal of the American Medical Association 2456
Wodak, Alex, ‘Cannabis Control: Costs Outweigh the Benefits’ (2002) 324 British Medical Journal 105
Wodak, Alex, ‘The Failure of Drug Prohibition and the Future of Drug Law Reform in Australia’ (2015) 38(5) Australian Prescriber 148
Wodak, Alex ‘Harm Minimisation is Now the Mainstream Global Drug Policy’, (2009) 104 Addiction, 343
LEGISLATIVE MATERIALS
Controlled Substances Act 1984 (SA)
Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Drugs of Dependence Act 1989 (ACT)
Expiation of Offences Act 1996 (SA)
Explanatory Memorandum, Narcotic Drugs Amendment Bill 2016 (Cth)
Fines And Penalties (Recovery) Act (NT)
Misuse of Drugs Act (NT)
Single Convention on Narcotic Drugs, signed 30 March 1961, 520 UNTS 151 (entered into force 13 December 1964)
Young Offenders Act 1997 (NSW)
[1] Julie Gould, ‘The Cannabis Crop’ (2015) 525(7570) Nature S2, S2.
[2] Ibid, S3 citing Penny F. Whiting et al, ‘Cannabinoids for Medical Use: A Systematic Review and Meta-analysis’ (2015) 313(24) The Journal of the American Medical Association 2456; K. P. Hill, ‘Medical Marijuana for Treatment of Chronic Pain and Other Medical and Psychiatric Problems: A Clinical Review’ (2015) 313(24) The Journal of the American Medical Association 2474; Richard Hosking & John Zajicek, ‘Pharmacology: Cannabis in neurology—a potted review’ (2014) 10 Nature Reviews Neurology 429.
[3] Prakash Nagarkatti et al, ‘Cannabinoids as novel anti-inflammatory drugs’ (2009) 1(7) Future Medicinal Chemistry 1333.
[4] Whiting et al, ‘Cannabinoids for Medical Use: A Systematic Review and Meta-analysis’ (2015) 313(24) The Journal of the American Medical Association 2456.
[5] L Iversen, ‘Long-term Effects of Exposure to Cannabis’ (2005) 5(1) Current Opinion in Pharmacology 69.
[6] J Stephenson, ‘Cannabis Consequences’ (2004) 291(23) The Journal of the American Medical Association 2809.
[7] Matthew Hill, ‘Perspective: Be clear about the real risks’ (2015) 525(7570) Nature S14.
[8] Ibid; R. A. Power et al, ‘Genetic Predisposition To Schizophrenia Associated With Increased Use Of Cannabis’ (2014) 19 Molecular Psychiatry 1201; M Cohen, N Solowij & V Carr, ‘Cannabis, Cannabinoids and Schizophrenia: Integration of the evidence’ (2008) 42(5) Australian New Zealand Journal of Psychiatry.
[9] Wayne Hall, ‘What has research over the past two decades revealed about the adverse health effects of recreational cannabis use?’ (2015) 110(1) Addiction.
[10] Steve Bolt, History of drug laws – Australia, (2015) Legal Answers – State Library of NSW <http://www.legalanswers.sl.nsw.gov.au/guides/hot_topics/drugs/history_drug_laws_Australia.html> Terry Carney, ‘The History of Australian Drug Laws: Commercialism to Confusion?’ (1981) 7(3) Monash University Law Review 166; Desmond Manderson, From Mr Sin to Mr Big: a history of Australian drug laws (Oxford University Press, 1993) 106.
[11] Desmond Manderson, above n 10, 12 & 202; James Rowe, ‘Pure politics: a historical look at Australian drug policy’ (2001) 26(3) Alternative Law Journal 127.
[12] Jay Sinha, The History And Development Of The Leading International Drug Control Conventions (21 February 2001) Parliament of Canada <http://www.parl.gc.ca/content/sen/committee/371/ille/library/history-e.htm#C. The 1925 Geneva Opium Conventions> .
[13] Steve Bolt, above n 10; Terry Carney, above n 10, 197.
[14] John Jiggens, Marijuana Australiana: Cannabis Use, Popular Culture and the Americanisation of Drugs Policy in Australia, 1938 - 1988 (PhD Thesis, Centre for Social Change Research, Queensland University of Technology, 2004) 22 & 32.
[15] Steve Bolt, above n 10; Desmond Manderson, above n 10, 145.
[16] Steve Bolt, above n 10.
[17] John Jiggens, above n 14, 49.
[18] Single Convention on Narcotic Drugs, signed 30 March 1961, 520 UNTS 151 (entered into force 13 December 1964), Art 3(5).
[19] Explanatory Memorandum, Narcotic Drugs Amendment Bill 2016 (Cth), 6.
[20] Alex Wodak, ‘Cannabis Control: Costs Outweigh the Benefits’ (2002) 324 British Medical Journal 106.
[21] John Jiggens, above n 14, 251.
[22] Joanne Baker and Derek Goh, ‘The Cannabis Cautioning Scheme Three Years On: An Implementation And Outcome Evaluation’ (Evaluation Paper, New South Wales Bureau of Crime Statistics and Research, 23 September 2004) 1.
[23] Richard P. Mattick et al, ‘National Cannabis Strategy 2006-2009’ (Ministerial Council on Drug Strategy, 15 May 2006) 6.
[24] Ibid 1; Maurice Rickard, ‘Reforming the Old and Refining the New: A Critical Overview of Australian Approaches to Cannabis’, (Research Paper 6, Parliamentary Library, Parliament of Australia, 10 October 2001), iii.
[25] Drug Misuse and Trafficking Act 1985 (NSW) (‘DMTA’) ss 10, 12, 23, 23A & 25.
[27] Includes charges, warnings or cautions.
[28] NSW Bureau of Crime Statistics and Research, ‘Data from: Recorded Incidents of Possession and/or Use of Cannabis in All of NSW’, electronic data set, NSW BOCSAR Local Government Area Crime Trends Tool, reference number: 2016-573284.
[29] Ibid.
[30] Australian Institute of Health and Welfare, ‘National Drug Strategy Household Survey Detailed Report 2013’ (Australian Institute of Health and Welfare, 12 February 2015) 49.
[31] Kevin Dawkins, ‘Cannabis Prohibition: Taking Stock of the Evidence’ (2001) 10(1) Otago Law Review 60; Simon Lenton & Penny Heale, ‘Arrest, Court And Social Impacts Of Conviction For A Minor Cannabis Offence Under Strict Prohibition’ (2000) 27(4) Contemporary Drug Problems, 827.
[32] Australian Institute of Health and Welfare, above n 30, Table S7.7.
[33] Ibid.
[34] Kevin Dawkins, above n 31, 78.
[35] Maurice Rickard, above n 24, 31.
[36] DMTA ss 30, 31, 32 & Sch 1; Criminal Procedure Act 1986 (NSW) sch 1(30).
[37] Ibid.
[38] Ibid.
[40] Ibid.
[41] Ibid, s 33(2)(b).
[42] Ibid, Sch 1.
[43] Ibid, ss 23A & 33AD.
[44] Australian Institute of Health and Welfare, above n 30, Table 5.12.
[45] Ibid.
[46] Includes charges and convictions.
[47] NSW Bureau of Crime Statistics and Research, ‘Data from: Recorded Incidents of Dealing and/or Trafficking of Cannabis in All of NSW’, electronic data set, NSW BOCSAR Local Government Area Crime Trends Tool, reference number: 2016-573298.
[48] Kevin Dawkins, above n 31, 59.
[49] John Jiggens, above n 14, 116.
[50] Alex Wodak, ‘Harm Minimisation is Now the Mainstream Global Drug Policy’, (2009) 104 Addiction, 344.
[51] Simon Lenton et al, ‘The Social Supply Of Cannabis Among Young People In Australia’ (December 2015) 503 Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice, 5; Martin Bouchard, Tom Decorte & Gary Potter, World Wide Weed (Ashgate, 2013) 86.
[52] Simon Lenton et al, above n 51.
[53] John Jiggens, above n 14, 113 citing Neal Blewett, ‘Marijuana: the Most Victimless Crime of All’ (Paper delivered at the Seminar on Victimless Crime, Seymour Centre, University of Sydney, 27 February 1977).
[54] Kevin Dawkins, above n 31, 82; Marian Shanahan, Karen Gerard & Alison Ritter, ‘Preferences For Policy Options For Cannabis In An Australian General Population: A Discrete Choice Experiment’ (2014) 25 International Journal of Drug Policy 682; Alex Wodak, above n 20, 105; Simon Lenton & Penny Heale, above n 31, 827-8.
[55] Susanne Bahn, ‘Community Safety and Recidivism in Australia: Breaking the Cycle of Reoffending to Produce Safer Communities Through Vocational Training’ (2011) 9(3) International Journal of Training Research 262.
[56] Maurice Rickard, above n 24, 24-27; Kevin Dawkins, above n 31, 81.
[57] Australian Crime Commission, ‘2013-14 Illicit Drug Data Report’ (2015) 204-5.
[58] Ibid, 205.
[59] Maurice Rickard, above n 24, 24.
[60] Kevin Dawkins, above n 31, 75.
[61] Alex Wodak, ‘The Failure of Drug Prohibition and the Future of Drug Law Reform in Australia’ (2015) 38(5) Australian Prescriber 148.
[62] Maurice Rickard, above n 24, 14 citing Australian Bureau of Criminal Intelligence, ‘The Illicit Drug Report 1998–99’ (2000).
[63] Maurice Rickard, above n 24, 4 citing Natalie O'Brien, ‘A Nation of Dope Smokers Revealed’, The Australian, 20 June 2001.
[64] Maurice Rickard, above n 24, 14.
[65] Ibid, 39; Kevin Dawkins, above n 31, 75.
[66] Maurice Rickard, above n 24, 34.
[67] Ibid, 15; Kevin Dawkins, above n 31, 83; Alex Wodak, above n 20.
[68] Joanne Baker and Derek Goh, above n 22.
[69] Ibid, 4.
[70] Ibid, 3.
[71] Ibid, 1.
[72] Derek Goh & Jessie Holmes, ‘New South Wales Recorded Crime Statistics 2013’ (NSW Bureau of Crime Statistics and Research, 10 April 2014) 35.
[73] New South Wales Auditor-General, ‘The Effectiveness of Cautioning for Minor Cannabis Offences’ (Performance Audit Report, April 2011) 19; Joanne Baker and Derek Goh, above n 68, 6.
[74] New South Wales Auditor-General, above n 73, 15.
[75] Joanne Baker and Derek Goh, above n 22, 34.
[76] s 8(2A)(b) & 8(3).
[77] Ibid.
[78] New South Wales Auditor-General, above n 73, 13.
[79] Marian Shanahan, Karen Gerard & Alison Ritter, ‘Preferences For Policy Options For Cannabis In An Australian General Population: A Discrete Choice Experiment’ (2014) 25 International Journal of Drug Policy 682 citing S Lenton & C Ovenden, ‘Community Attitudes to Cannabis Use in Western Australia’ (1996) 26 Journal of Drug Issues.
[80] Joanne Baker and Derek Goh, above n 22, 6.
[81] Ibid, 5 citing S Lenton et al, ‘Infringement versus conviction: the social impact of a minor cannabis offence in South Australia and Western Australia’ (2000) 19 Drug and Alcohol Review.
[82] NSW Department of Health, Clinical Trials of Cannabis Products (27 July 2015) <http://www.health.nsw.gov.au/cannabis/Pages/clinical-trials.aspx> .
[83] NSW Government, Terminal Illness Cannabis Scheme Fact sheet for adults with a terminal illness and their carers (2014) <http://www.nsw.gov.au/fact-sheet-adults-terminal-illness-and-their-carers> .
[84] Explanatory Memorandum, Narcotic Drugs Amendment Act 2016 (Cth) 1.
[85] Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, GA Res S-30/1, 30th special sess, 1st plen mtg, Agenda Item 8, UN Doc A/RES/S-30/1 (19 April 2016) [2].
[86] Saxon Smith, ‘Clearing the smoke’ (2016) 8(5) The NSW Doctor 13.
[87] Ibid.
[88] Ibid.
[89] Ibid.
[90] Alex Wodak, above n 20; Caroline Chatwin, ‘UNGASS 2016: Insights From Europe On The Development Of Global Cannabis Policy And The Need For Reform Of The Global Drug Policy Regime’ (2016) International Journal of Drug Policy, 1 citing David R. Bewley-Taylor, The contemporary international drug control system: A history of the UNGASS decade (2012) LSE Ideas <http://www.lse.ac.uk/IDEAS/publications/reports/pdf/SR014/Bewley-Taylor.pdf> .
[91] Caroline Chatwin, above n 90, 1 citing UNDP, ‘Perspectives on the development dimensions of drug control policy’ (March 2015) .
[92] Government of Canada, Plenary Statement for the Honourable Jane Philpott Minister of Health - UNGASS on the World Drug Problem (20 April 2016), Government of Canada Website <http://news.gc.ca/web/article-en.do?nid=1054489> .
[93] Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, GA Res S-30/1, 30th special sess, 1st plen mtg, Agenda Item 8, UN Doc A/RES/S-30/1 (19 April 2016) [2].
[94] Melissa Davey, ‘Drug expert says Australia's presence at UN summit a waste of money’, The Guardian (online), 8 April 2016, <https://www.theguardian.com/society/2016/apr/08/drug-expert-says-australias-presence-at-un-summit-a-waste-of-money>.
[95] Controlled Substances Act 1984 (SA) s 45A; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) s 15; Drugs of Dependence Act 1989 (ACT) s 171A(7); Misuse of Drugs Act (NT) ss 20A & 20B.
[96] Misuse of Drugs Act (NT) s 13.
[97] Controlled Substances Act 1984 (SA) s 45A(2).
[98] Drugs of Dependence Act 1989 (ACT) s 171A; Misuse of Drugs Act (NT) ss 20B & 20F.
[99] Ibid.
[100] Controlled Substances Act 1984 (SA) s 15.
[101] Adam Sutton & Elizabeth McMillan, ‘Criminal justice perspectives on South Australia's Cannabis Expiation Notice procedures’ (2000) 19(3) Drug and Alcohol Review 283.
[102] Richard P. Mattick et al, above n 23.
[103] Australian Institute of Health and Welfare, above n 30, Table S7.7.
[104] Ibid.
[105] Ibid.
[106] Ibid.
[107] Ibid.
[108] Ibid.
[109] Alex Wodak, above n 20 citing Eric Single, ‘The Impact of Marijuana Decriminalization’ (1989) 10 Journal of Public Health Policy.
[110] Australian Institute of Health and Welfare, above n 30, Table S7.8.
[111] Wendy Swift, Jan Copeland & Simon Lenton, ‘Cannabis and Harm Reduction’ (2000) 19 Drug and Alcohol Review 106.
[112] Richard P. Mattick et al, above n 23.
[113] Australian Institute of Health and Welfare, above n 30, 115.
[114] Marian Shanahan, Karen Gerard & Alison Ritter, above n 54, 688.
[115] Mitch Earleywine & Mallory Loflin, ‘Curious consequences of Cannabis Prohibition’ (2013) 6 Albany Government Law Review 446.
[116] National Drug Strategy Committee, Commonwealth Parliament of Australia, The Social Impacts of the Cannabis Expiation Notice Scheme in South Australia (1998), 50; Lenton et al, ‘Infringement versus conviction: The Social Impact Of A Minor Cannabis Offence in South Australia and Western Australia’ (2000) 19(3) Drug and Alcohol Review 262.
[117] Maurice Rickard, above n 24, 22.
[118] National Drug Strategy Committee, above n 116; Wendy Swift, Jan Copeland & Simon Lenton, above n 111 citing Lenton et al, ‘Infringement versus conviction: The Social Impact Of A Minor Cannabis Offence in South Australia and Western Australia’ (2000) 19(3) Drug and Alcohol Review.
[119] Maurice Rickard, above n 24, 27.
[120] Maurice Rickard, above n 24, 31.
[121] Ibid, 26.
[122] Ibid; Martin Bouchard, Tom Decorte & Gary Potter, above n 51, 75.
[123] Don Weatherburn, ‘The Pros and Cons of Prohibiting Drugs’ (2014) 47(2) Australian and New Zealand Journal of Criminology 176, 177 citing C. Spohn, & D. Holleran, ‘The effect of imprisonment on recidivism rates of felony
offenders: A focus on drug offenders’ (2002) 40 Criminology 329.
[124] Ross McLeod, Alison Ritter & Marian Shanahan, ‘Government Drug Policy Expenditure in Australia – 2009/10’ (Monograph No 24, Drug Policy Modelling Program, National Drug and Alcohol Research Centre, June 2013) Addendum 20/08/2013.
[125] Ibid.
[126] Ibid, 6.
[127] Ibid, Addendum 20/08/2013.
[128] Eric Single, Paul Christie & Robert Ali, ‘The impact of cannabis decriminalisation in Australia and the United States’ (2000) 21(2) Journal of Public Health Policy 167; National Drug Strategy Committee, above n 103, 51; Maurice Rickard, above n 24, 31; Wendy Swift, Jan Copeland & Simon Lenton, above n 111.
[129] Eric Single, Paul Christie & Robert Ali, above n 110, 167.
[130] Expiation of Offences Act 1996 (SA) s 9; Fines And Penalties (Recovery) Act (NT) s 12B; Drugs of Dependence Act 1989 (ACT) s 171A(3)(c).
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