A review paper prepared for DrugScope's submission to
the Home Affairs Select Committee.
Ashton, Editor of the Journal ' Drug and Alcohol Findings'.
Headlines | Introduction
| Legislative Frameworks | Parameters
of study | Costs of cannabis law enforcement
of cannabis consumption | Summary | Conclusions
| Research findings to date | References
use has remained relatively unaffected by different legislative
efforts of law enforcement in countries that advocate a total
ban on the personal use of cannabis has had an insignificant impact,
if any at all on levels of cannabis use (2). Indeed, these restrictions
may even have led to greater harm with regards to health and social
liberal policies toward the possession and use of small quantities
of cannabis, such as The Netherlands' Expediency Principle and
the expiation schemes introduced in South Australia and the ACT,
do not seem to have led to increased cannabis use. Such policies
do not appear to have had the effect of signalling approval of
cannabis use nor of increasing the availability of the drug. It
is unlikely that the option of partial prohibition would produce
substantially different results with regards to cannabis consumption.
has the potential drawback of signifying approval, while totally
free availability may increase the nation's cannabis use to some
important point is that cannabis legislation does not seem to
impact upon cannabis consumption in any significant way.
survey of drug use trends in Europe revealed that cannabis use
has been declining since the early to mid-1970s, and seems unrelated
to the type of control regime in place in specific countries.(3)
North American research also demonstrates fairly conclusively
that legal sanctions do not deter or inhibit future illegal drug
regards to minimising the harm associated with cannabis it is the
opinion of many commentators that the harm caused by legislation
prohibiting personal cannabis use outweighs the harm caused by the
drug itself. Furthermore, restrictions on advertising and sensitive
education campaigns have been found to be effective ways of minimising
the harm associated with alcohol and tobacco. Similar techniques
would seem to be possible with regards to cannabis and it may be
a much more effective strategy than employing the 'strong arm of
1. In addressing cannabis use there are numerous legislative
options available to policy makers ranging from total prohibition
to free availability. This paper discusses the impact (both actual
and potential) of cannabis legislation upon cannabis use, the community
and the law enforcement sector.
2. At the outset it is important to state that the arguments
presented here apply to the control and effects of cannabis and
should not be generalised to other drugs. The evaluations made regarding
the impact of cannabis legislation stem from empirical research
findings rather than moral arguments for or against cannabis use
and cannabis legislation.
3. The majority of studies into cannabis use fail to mention
the impact of current legislation on patterns and results of cannabis
use, let alone considering the potential impact of other legislative
options. A few studies do focus on differing legislative approaches
to cannabis but most of this literature limits itself to comparing
the total prohibition of the United States, with the total prohibition
with an expediency principle of the Netherlands, thus precluding
legislative options not already practised.
4. This working paper examines the results of the full cross
section of possible legislative frameworks for cannabis.
5. Six legislative options are evaluated in this study:
Total prohibition (with no expediency principle) whereby
the use, possession, cultivation, importation, sale and distribution
of any amount of cannabis are criminal offences. Most Western
counties follow this policy. Thus, most of the available literature
and research on cannabis has been derived from the context of
Total prohibition (with an expediency principle) is where
laws exist prohibiting the possession and production of cannabis
but when the amount involved is small, guidelines dictate that
the laws need not be enforced. This policy exists in the Netherlands.(5).
Prohibition with civil penalties is where the use and possession
and cultivation of small quantities of cannabis for personal use
invoke civil sanctions rather than criminal ones. The South Australian
Cannabis Expiation Notice scheme, introduced in 1987, and the
Simple Cannabis Offence Notice scheme introduced in the Australian
Capital Territory in 1992, are examples of this option and will
be outlined below.(6) Spain also follows this model. During the
1970s eleven US states(7) enacted laws whereby the possession
of small quantities of marijuana was reduced from a felony offence
to a misdemeanour. Despite Alaska having re?criminalised minor
cannabis offences in 1990, many commentators regard some of the
US cannabis laws as primarily symbolic and believe that de facto
decriminalisation (ie. prohibition with civil penalties) remains
in many states. (8)
Partial prohibition is where it is not an offence (civil
or criminal) to use cannabis or to possess or grow it in quantities
judged appropriate for personal use. Italy, while not adopting
this option in theory, does not regard possession or cultivation
of small quantities of cannabis criminally punishable.
Regulation is where the production, distribution and sale
of cannabis are controlled to a greater or lesser extent by government
agencies (activities relating to personal use would therefore
not be penalised). Some degree of regulation of cannabis exists
in Holland whereby hemp products are sold through youth centres
and coffee shops under certain clearly defined conditions. A regulatory
regime applies to tobacco, alcohol and many pharmaceutical products
in many countries.
Free availability would mean the absence of any legislative
or regulatory restrictions on the cultivation, importation, sale,
supply, possession or use of cannabis. This approach is not practiced
in any country at present.
6. Of course, many variations on these models are possible.
For instance, should the partial prohibition or regulation option
be adopted, prohibition may still apply to persons under 18 years
of age. Use of cannabis in public places or preparation of concentrated
forms of cannabis could remain illegal. Also, advertising bans may
still apply, regardless of whether the sale, use and cultivation
of cannabis became legal. The precise details of the legislation
would depend on the particular policy goals decided upon and within
each legislative option there is considerable room for manoeuvre.
7. The categories investigated in researching this paper
were: patterns of consumption; health consequences; law enforcement
and legal issues; economic factors; driving behaviour; public attitudes;
education and employment; leisure and lifestyle; self?identity;
family and community relations; and young people. Wherever possible,
the discussion is based on empirical findings. Where this is not
possible (as a result of some of the legislative options not having
been enforced) the likely impact is surmised.
8. It is not the purpose of this discussion to document in
detail the consequences of cannabis use on physical and mental health,
as this topic has received extensive coverage elsewhere. Suffice
to say that the findings of the most recent authoritative review
(9) concluded that cannabis use has not been found to produce
health effects any more harmful than that of legal drugs such as
alcohol and tobacco and certainly not compared to crack or heroin.
Evidence suggests that cannabis is not highly dependence-producing
and most studies have identified a decline in cannabis consumption
since the late 1970s. (10)
9. Most nations agree that cannabis use should be discouraged
or, at least, not encouraged. This study therefore attempts to assess
the impact of legislative changes on levels of cannabis use as well
as identifying the other results of differing legislative frameworks.
Costs of Cannabis Law Enforcement and other
10. Although certainly not the most important factor when
addressing cannabis legislation, costs of enforcement, other economic
factors and their resulting social impacts are a factor that policy
makers should consider. It is also important to note that many of
the non-monetary (i.e. social) burdens of cannabis laws stem directly
from the monetary costs they precipitate.
11. The financial cost to the community due to the regime
of total prohibition stems, largely, from the enforcement of cannabis
legislation. In Australia for example, a conservative estimate of
all illicit drug law enforcement costs for the financial year 1991-92
amounted to $450 million of which some $329 million (or 73 per cent)
were for cannabis law enforcement.(11) This is estimated to be around
13 percent of the total yearly expenditure on Australian police,
courts and prisons(12).
12. Evidence suggests that law enforcement and criminal justice
costs are far higher than economic losses due to the adverse effects
of drugs in general, and cannabis in particular. (13)
13. It must also not be forgotten that a portion of the economy
enters into the black market in cannabis every year. American consumers
were estimated to have spent US$8.3 billion on cannabis during 1990
while the equivalent Australian expenditure is thought to have been
around A$1.9 billion.(14) This lost revenue is harmful not only
to the community but also to the individual who is paying a high
price for cannabis from the black market. (15) The only section
of the community to benefit from the current trade in cannabis is
the organised crime syndicates and other dealers and traffickers
involved in the black market. Accumulation of wealth among these
groups is obviously to be avoided. Apart from the loss in taxes,
prosperous organised crime groups, like legitimate businesses, have
the potential to grow and to become involved in other, more lucrative,
ventures that may be more damaging to society than supplying cannabis.
Total Prohibition with an Expediency Principle
14. The introduction of an expediency principle would be
likely to result in a greatly reduced economic burden to the criminal
justice system. In The Netherlands, for instance, substantial savings
have been made to law enforcement and criminal justice budgets as
a result of not having to process large numbers of cannabis offenders.
However, many of the other negative financial aspects of total prohibition
would remain. Individual users may still pay inflated prices for
cannabis and those dealing in the drug could continue to avoid paying
taxes for cannabis-related income and maintain the organised crime
Prohibition with Civil Penalties
15. The introduction of civil penalties for personal use
and cultivation of cannabis may also provide some savings to the
criminal justice system although part of those assets would have
to be re-directed to fund the new scheme. In the United States when
civil penalties were introduced for small scale cannabis use, significant
savings in terms of law enforcement costs were observed. For example,
in California the legislative changes were reported to have produced
savings in cannabis law enforcement of US$62 million per annum (in
1986 dollars) over the 1976-85 period. (16)
16. On the other hand South Australia did not make significant
savings (though this may have been due to testing results too early).
In order to understand the dynamics of legislative changes, it is
necessary to take into account differences in attitudes towards
cannabis laws by law enforcement agents.(17) Research is required
to establish the opinions and reactions of law enforcement personnel
(e.g. police officers, magistrates, judges, probation officers)
towards the various legislative options for cannabis.
17. The introduction of partial prohibition would avoid the
economic cost to society associated with personal use of cannabis,
possession and cultivation of small quantities of the drug at the
same time as limiting the costs, both financial and social, imposed
on individual users. While the black market in cannabis would also
be substantially reduced, it is unlikely that it would disappear
altogether under this option.
Regulation or Free Availability
18. To end the black market for cannabis, regulation or free
availability may be necessary (although some say that even under
these conditions the black market is unlikely to vanish altogether)
(18) . These two options would certainly result in substantial savings
to the law enforcement and criminal justice budgets, supplemented
by taxes charged on cannabis products and, in the case of regulation,
revenue derived from licence fees for growers, distributors and
retailers. Conservative estimates suggest that legalisation of the
American cannabis market may produce up to US$9.09 billion in tax
19. A regulated system is not however without cost and even
a 'free availability' option incurs costs of implementing and enforcing
regulations from licensing premises and age minimums to banning
advertising. The cost of enforcing new regulations needs to be compared
to the cost of enforcing the old ones and it should not be assumed
that decriminalisation of cannabis would result in savings proportionate
to current drug law enforcement spending.
20. In summary, the current regime of total prohibition practised
by most Western countries is undoubtedly the most expensive option,
in monetary terms, to enforce. While more liberal laws would generally
result in law enforcement and criminal justice savings, it may not
result in vast savings as any form of legislation is likely to incur
some costs. Economic considerations should clearly not form the
basis for cannabis policy and other social costs of the different
legislative options must take precedence.
21. Despite this, the economic factors must be considered
in the cost benefit analysis of the various legislative options
for cannabis. Implemented efficiently, any of the options other
than total prohibition are likely to correspond with significant
Patterns of Cannabis Consumption
22. As highlighted in the introduction most states see cannabis
consumption as a practice they want to discourage or at least not
encourage. With this in mind the key area for consideration is the
effect of cannabis legislation on patterns of cannabis consumption.
23. As most countries practice the total prohibition option
for cannabis, most of the data produced from studies on cannabis
consumption are derived from this context. The prohibition model
views drug use as a criminal rather than a social problem and is
based upon the tradition of deterrence theory.(20). In other words,
the threat of legal sanction is presumed to deter individuals from
partaking in behaviour regarded by society to be undesirable.(21).
Despite laws against cannabis use having been in place for most
of the twentieth century, most studies show that over one third
of the population of Western countries have used cannabis at least
once. Clearly, the aim of eliminating (or significantly marginalizing)
cannabis use through a total legislative ban of the substance has
failed resoundingly. Furthermore, there is considerable evidence
to show that even very substantial increases in law enforcement
activity alter neither availability of nor consumption levels of
cannabis to any significant degree.(22). While deterrence is one
of the main aims of total prohibition it is noteworthy that the
threat of legal sanctions has been shown to play a very minor part
in the decision-making of cannabis consumers.
24. It is also true that strict legislation banning the use
of cannabis may have several undesirable effects such as more technology-intensive
methods of cultivation, the use of dangerous fertilisers (23), an
increase in the potency of the cannabis produced, and more harmful
methods of consumption.(24). Thus, prohibition would appear to
have an adverse effect on aspects of cannabis supply while doing
little to alter levels of demand.
25. Although the rate of cannabis experimentation is high,
it is not as high as that of the legal drugs alcohol and tobacco.
Understandably, fears exist that liberalisation may inflate levels
of use of the drug and, subsequently, increase the amount of harm
associated with it. In order to inform the debate on the legislative
options for cannabis it is important to evaluate the potential impact
of more liberal legislation upon cannabis consumption.
Total Prohibition with an Expediency Principle
26. In The Netherlands, where total prohibition is
encased in an administrative expediency principle, no significant
increases in drug use (25) or changes in patterns of use have been
identified,(26) and there may even have been a decline in cannabis
27. This option may also lead to users adopting safer methods
of consuming cannabis. For instance, when restrictions are removed
from the sale of water pipes, fewer users consume cannabis in cigarette
papers, which is the form of consumption most damaging to the lungs.
28. An additional aspect of the Dutch drug policy is the
availability, with impunity, of treatment for users wishing to reduce
or abandon drug use which helps explain the considerably higher
levels of drug users accessing treatment in Holland vis-à-vis
countries like the US. (29).Some argue that total prohibition and
subsequent involvement in the criminal justice system affords access
to those individuals whose drug use is particularly dysfunctional.(30).
This may be a reasonable position to take with regards to drugs
with a high dependence-producing propensity, but not in the case
of cannabis. Furthermore, some of the reform options still afford
some sanctions regarding cannabis use, albeit less harsh than those
stemming from total prohibition, therefore it is still likely to
advance contact with those demonstrating problematic drug use. It
is also questionable whether treatment administered through the
criminal justice system is as effective as individuals self-referring
Prohibition with Civil Sanctions
29. In South Australia, where possession and cultivation of small
quantities of cannabis for personal use are dealt with by civil
sanctions rather than criminal ones, the data does not indicate
an increase in cannabis use. (31) NCADA Australian household
drug use survey data covering the period 1985 to 1993 indicate that,
although there have been increases in self-reported cannabis use
in South Australia, similar increases occurred in other states where
there have been no changes in the legal status of personal cannabis
30. In the United States, where eleven states decriminalised
the use of marijuana during the 1970s, either no significant increases
in marijuana use were detected after decriminalisation (32) or,
where increases did occur, they were no greater than those that
arose in states in which no changes in cannabis legislation had
taken place. (33).
31. The evidence also suggests that far from individuals
not appreciating the law reform (a suggested reason for the lack
of increase in cannabis use) many people following reform wrongly
believed cannabis had been legalized. (34).If there is a widespread
misunderstanding surrounding the legal status of cannabis, it is
remarkably encouraging that the extent of cannabis use has remained
32. Considerable evidence also exists to support the notion
of a 'saturation level' for marijuana use among both youths and
adults, which may not change drastically over time, least of all
as a result of implementation of more lenient marijuana laws. These
findings support the theory that participation in cannabis consumption
is more strongly associated with social factors (such as personality,
lifestyle and social learning) than with legal ones.
33. Little data is currently available with which to evaluate
the potential effects of partial prohibition upon patterns
of cannabis consumption, despite a small number of countries having
followed this model.
34. Should partial prohibition be introduced it might be
hypothesised that a similar situation to when an expediency principle
exists would arise (or indeed, to when all penalties are erroneously
believed to have been removed). Correspondingly, this situation
provides little cause for alarm with regards to changes in cannabis
35. Nevertheless, greater availability of the drug could
make access easier to a greater number of young people. This could
result in more people experimenting with cannabis earlier than they
would have done otherwise (if at all).
36. It has also been suggested that increased access to cannabis
may actually reduce the demand for more harmful illegal drugs (ADCA
1993b). When local supplies of cannabis dry up, perhaps as a result
of law enforcement seizures, there may be a consequent increase
in demand and supply of other illegal drugs, including heroin, amphetamine,
LSD and ecstasy.
37. Greater visibility of the drug in retail outlets may
act as a form of advertising exposing more people (and in particular,
more young people) to the temptation to experiment. Fears exist
that this move would also send a tacit message that the community
approves the use of harmful drugs. However, the legalised status
of nicotine, alcohol and psychoactive drugs available on prescription
does not send that message. Clearly regulation would have to be
accompanied by an effective education campaign.
38. Regulation may also break the linkage between cannabis
and other illegal drugs, thereby disrupting the link between the
cannabis market and the market for other illegal drugs. The probability
of progression onto other illicit substances may therefore lessen.
39. It is also reasonable to assume that following regulation,
cannabis may replace alcohol as the drug of choice among a segment
of society. Should this occur, then the total damage to individuals
and society may possibly be less, as the medical (and social) risks
associated with alcohol have been shown to outweigh those of cannabis.(36).
On the other hand, it is clear that the impairment caused by alcohol
and cannabis, taken in combination, is particularly marked and has
serious implications for road safety. (37)
41. It is likely that the free availability option,
by virtue of the increased accessibility of the drug, would result
in some increase in cannabis experimentation, particularly if alcohol
and tobacco continued to be controlled through government regulation.
42. This might be particularly so if cannabis advertising
were permitted and the costs of cannabis fell; these features may
well encourage use or more harmful patterns of use. It is however
unlikely that even this option would see a massive change in patterns
of cannabis use.
44. In summary, it is clear that cannabis use has remained
relatively unaffected by different legislative frameworks.
45. The efforts of law enforcement in countries that advocate
a total ban on the personal use of cannabis has had an insignificant
impact, if any at all on levels of cannabis use. (38) Indeed, these
restrictions may even have led to greater harm with regards to health
and social costs.
46. More liberal policies toward the possession and use of
small quantities of cannabis, such as The Netherlands' Expediency
Principle and the expiation schemes introduced in South Australia
and the ACT, do not seem to have led to increased cannabis use.
Such policies do not appear to have had the effect of signalling
approval of cannabis use nor of increasing the availability of the
drug. It is unlikely that the option of partial prohibition would
produce substantially different results with regards to cannabis
47. Regulation has the potential drawback of signifying approval,
while totally free availability may increase the nation's cannabis
use to some small degree.
48. The important point is that cannabis legislation does
not seem to impact upon cannabis consumption in any significant
49. A survey of drug use trends in Europe revealed that cannabis
use has been declining since the early to mid-1970s, and seems unrelated
to the type of control regime in place in specific countries.(39)
North American research also demonstrates fairly conclusively that
legal sanctions do not deter or inhibit future illegal drug usage.
50. With regards to minimising the harm associated with cannabis
it is the opinion of many commentators that the harm caused by legislation
prohibiting personal cannabis use outweighs the harm caused by the
drug itself. Furthermore, restrictions on advertising and sensitive
education campaigns have been found to be effective ways of minimising
the harm associated with alcohol and tobacco. Similar techniques
would seem to be possible with regards to cannabis and it may be
a much more effective strategy than employing the 'strong arm of
51. There are numerous legislative frameworks and variations
on these frameworks that policy makers can employ to deal with cannabis
use. No framework is a perfect one and all will have unintended
consequences, what is clear however is that;
52. Total Prohibition utterly fails in its main aim to eliminate
or significantly marginalize cannabis use. It is the most costly
of all options and generates massive income for organised crime.
It also leads to more harmful practices of using cannabis and can
increase the effect of cannabis as a gateway through to other more
harmful drugs. It criminalizes otherwise law-abiding citizens and
deprives the state of significant taxation revenues.
53. Total Prohibition with an Expediency Principle has not
led to an increase in cannabis consumption (perhaps even a fall)
and saves the state considerable funds previously spent on law enforcement.
Less harmful use of cannabis proliferates and people with problem
drug use are more likely to get treatment (this is also true for
all further options). The cannabis market does however remain in
the black market with a criminal element remaining.
54. Prohibition with Civil Sanctions has also not led to
a rise in cannabis use. Law enforcement savings are not as great
as possible as the new sanctions come with associated cost implications.
Citizens are no longer criminalised for cannabis use but there is
the potential for net widening. Cannabis remains in the black market.
55. Partial Prohibition may produce a very small increase
in cannabis use as the availability increases, the increase in use
would not be significant. Increased cannabis use may also lead to
reduced demand for other more harmful illegal drugs and would remove
individual users completely from the criminal system and further
reduce the gateway effect of cannabis. The criminal element to some
cannabis supply would remain and although law enforcement costs
would be significantly cut they would not be abolished.
56. Regulation due to the greater visibility and availability
of drugs this option may also lead to a small increase in cannabis
use. Regulation would however remove cannabis from the black market
and severe the link with organised crime. It would also enable the
state to gain significant revenue through taxation, to direct how
cannabis is used and exclude at risk groups (such as minors), as
well as producing better harm information. Regulation may also mean
cannabis replaces alcohol as a choice drug for some sectors of society
with resulting decreases in harm to health and society. This option
may also lead to a decrease in demand for other illegal drugs. Some
law enforcement costs will remain in enforcing regulatory rules
but these will be small compared to possible taxation revenue.
57. Free Availability would once again increase cannabis
use by a small amount and if totally unregulated may lead to more
harmful practices and an impact on at risk groups. It would have
similar effects as regulation in terms of ending the black market,
breaking the link with crime, replacing alcohol as a drug of choice
for some groups and decrease demand for other drugs. It would also
end costs associated with cannabis law enforcement.
58. None of the above options is flawless, however, clearly
there are some options that are more effective than others. Legislation
has a minor impact (if any impact at all) on levels of cannabis
use. Legislation does however have a big impact on; the black market,
criminalisation and organised crime, cannabis as a gateway, access
to treatment, law enforcement costs, methods of use and the social
harm of cannabis.
59. It is up to policy makers to balance aims, objectives
and harms and decide which legislative option to pursue. It is however
clear that any of the options outlined would be preferable to the
Case Study: The South Australia Expiation
60. A key aim of the 1987 amendments was to sharpen the distinction
between adults who could be seen as 'private' producers and/or consumers
of cannabis and those who were larger scale operators. Only the
former - alleged to have committed acts defined under the law as
'simple' cannabis offences - were to be issued with an expiation
notice, and could not be proceeded against in court (unless they
failed to pay the relevant fine within the prescribed period). However,
penalties for persons deemed by nature of their offence to be larger
scale producers or dealers were significantly increased.
61. When the Cannabis Expiation Notice Scheme (CENS) was
first introduced, the activities defined as simple cannabis offences
which could be expiated were as follows:
possessing up to 100 gms of cannabis (with possession of
less than 25 gms attracting a lesser fine);
possessing up to 20 gms of cannabis resin (with possession
of less than 5 gms attracting a lesser fine);
consuming cannabis in private;
cultivating 'small numbers of cannabis plants for non commercial
possession of equipment for consuming cannabis.
62. This offence and penalty structure remains essentially
the same in 1998. However, the cultivation provisions were amended
in the Regulations Under the Controlled Substances Act 1984 (No.
188 of 1990) to make the permissible limit for expiation 'up
to ten plants' rather than relying on the non-specific phrase 'small
numbers for non commercial purposes'.
Research findings to date
63. Significant studies include early monitoring of the expiation
notice system by South Australia's Office of Crime Statistics(41)
and by the South Australian Drug and Alcohol Services Council(42),
and a series of reports commissioned by the National Task Force
on Cannabis. This research clarified some questions, but also disclosed
problems with CENS which had not been anticipated, as well as leaving
other matters still to be addressed.
64. The Office of Crime Statistics' review (43) was based
mainly on police records on offenders detected and notices issued.
It found nothing to support the view that rates of cannabis use
in South Australia had increased significantly after introduction
of the expiation approach. There also was no evidence of more experimentation
by 'at risk' groups (e.g. teenagers) or in 'at risk' locations (e.g.
schools). The study did, however, disclose a major anomaly in the
way CENS was taking effect. Most (about 55 per cent of) people issued
with notices for simple cannabis offences were not expiating the
fine within the required period. They were being prosecuted and,
in addition to incurring a conviction and fine, were having to pay
substantial court costs and a 'victims of crime' levy.
65. Drug and Alcohol Services Council (DASC) research (44)
had access to high school, national and other survey research on
trends in cannabis use. Its tentative conclusion was that patterns
of consumption in South Australia had not been affected by the introduction
of expiation notices. Results from a longer term review (45) also
have confirmed that increases in rates of cannabis use in South
Australia are consistent with changes in the rest of the country.
66. One major unintended consequence of CENS which was disclosed
by DASC's 1991 study relates to 'net widening'. Simplified procedures
have rendered police far more likely than previously to take action
against people found to be possessing, using or cultivating small
amounts of cannabis. Christie and Ali (46) point out that between
1987/88 and 1993/94, the number of cannabis offences dealt with
under the CEN System went from 6,200 to over 17,000: almost a three
fold increase. Clearly, introduction of CENS in South Australia
seems to have undermined law enforcement officers' willingness to
exercise discretion in relation to minor cannabis offending - an
effect which would appear inconsistent with legislators' intentions
but which has persisted to the present. One of the tasks for the
present study has been to explore reasons for this.
67. Other studies commissioned by the National Task Force
on Cannabis have concentrated on exploring the Australian public's
understanding of and attitudes towards cannabis laws, documenting
the harms associated with long term use, and assessing legislative
options. Some findings - for example, that higher percentages of
residents in jurisdictions which have introduced expiation now incorrectly
believe that possession, cultivation or use of small amounts of
cannabis is legal (47) - are consistent with concerns expressed
by opponents of a CENS approach. Task Force reviews also have confirmed
that chronic use of cannabis products can result in both psychological
dependency and other significant health problems - particularly
if it is smoked(48). Overall, however, this national inquiry has
found that public opinion about on the reform of cannabis laws in
Australia seems to be shifting, with the majority (52-55 per cent)
of the population now favouring some form of decriminalisation(49).
Moreover after reviewing legislative options, an Australian Institute
of Criminology based team has concluded that cannabis expiation
notice schemes have gone:
68. '… a long way towards achieving their goals and meeting
the criteria for effective drugs policy … 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 reflects an
understanding of the patterns of harm associated with cannabis,
recognising that much of the harm relates to the patterns of enforcement
of the cannabis legislation, rather than the use of the drug itself.
The approach is realistic and goals attainable, focusing on minimising
the negative impact of users on cannabis-related involved in the
criminal justice system, along with producing society-wide benefits
in terms of lessening the financial costs to the criminal justice
69. Significantly, the Institute's expert group was of the
view that simply legalising small scale cannabis cultivation, possession
and use - the policy option which many reform advocates portray
as the most clear cut and 'honest' - still was not viable. Recent
experience in Victoria, where the Parliament has emphatically rejected
an expert advisory committee's recommendation that some cannabis
related activities no longer be classified as offences(51), further
validates this conclusion.
70. While expiation remains the most viable reform on political
grounds, few would argue that, from a criminal justice perspective,
it has been without anomalies and ambiguities. Some apparent problems
disclosed in previous studies, such as the comparative severity
of court costs and other penalties incurred by non expiators, now
seem to have been addressed.(52). Others, such as net widening,
71. Reviewing police intelligence and other reports, moreover,
it is clear that classification of small scale cultivation as an
expiable offence continues to cause problems. As mentioned earlier,
one purpose of this inclusion was to provide a means whereby cannabis
users could be insulated from markets controlled by 'hard core'
criminal networks. However drafting a set of words which adequately
reflects this intention has been difficult. Over time, the original
formulation - 'small number for non commercial purposes' - was found
too imprecise and in 1990 was amended to an exact number of plants.
Recently, many in the justice sector have been suggesting that the
'ten plant limit' itself is being exploited by commercial producers
in ways that flout the legislators' intentions.
72. 'Groups are taking advantage of this system by growing
ten plants at a number of locations and then pooling the harvest
to increase the profit. The smaller crops reduce the risk of detection
and only attract a $150 fine with discovered. This is prompting
a review of the ten plant limit with a suggested limit of three
plants for personal use.'
73. Ensuring that CENS remains a workable option has not,
it would seem, been without challenges for police and other justice
system stakeholders. Research such as ours, which can provide them
with an opportunity to speak directly about relevant issues, is
Current attitudes, policies and practices
among law enforcement and criminal justice personnel
74. Through twenty-eight intensive one to one interviews
and four focus group discussions, the study obtained intensive feedback
from fifty one people involved in administration of South Australia's
cannabis laws. Respondents included the Chief Justice, the Chief
Magistrate, a representative from the Office of the Director of
Public Prosecutions, the National Crime Authority, police prosecutors,
the officer in charge of the Drug Task Force, Drug Task Force and
regional detectives and police patrol officers. Discussions also
were held with personnel in the Correctional Services and Attorney-General's
75. Virtually all respondents considered that it would be
better for South Australia to continue to issue expiation notices
for minor cannabis offences rather than to revert to a system of
prosecutions. Reasons for maintaining this view differed, however.
Police, who constituted the majority of interviewees, put emphasis
on the convenience and cost-effectiveness of CENs. Issuing a notice
eliminated time spent on court attendance, and also significantly
reduced administrative burdens associated with storage of court
exhibits. Individual users still could be deterred by being given
notices on several different occasions.
76. By contrast, members of the judiciary and others respondents
working outside the enforcement system tended to favour expiation
because it provided a way for users to avoid stigma and other adverse
social consequences associated with a court conviction.
77. Respondents agreed that expiation had improved police
and court efficiency. However quite a number of police argued that
there also had been some unintended consequences. In particular,
Drug Task Force and regional detectives argued that individuals
and syndicates may be exploiting provisions which specified that
cultivation of up to ten plants should be dealt with by means of
an expiation notice. In their view, the advent of hydroponics and
techniques for cloning female plants meant that it was possible
for commercial crops to be grown, while staying within the ten plant
limit. Some respondents argued that organised crime had become involved
in coordinating small scale cultivations. When requested, the Police
Department and the National Crime Authority produced intelligence-based
evidence that this was occurring. The Director of Public Prosecution's
office confirmed that it would be difficult to prosecute successfully
individuals or groups conspiring to exploit the CEN system by organising
small cultivations in several different locations.
78. Respondents who were members of the judiciary or from
the Office of the Director of Public Prosecutions could not see
any cause for major change to legislation or regulations. Several
police - particularly those in the Drug Task Force or working on
drug related special investigations or as regional detectives -
argued that the maximum number of plants for which a CEN could be
received should be reduced from ten to three or four. They argued
that the legislators clearly intended that notices should only be
issued in instances where cannabis was being cultivated for personal
use. People cultivating cannabis for this reason should not require
more than three or four plants.
79. Respondents from the law enforcement sector stated that
introduction of the expiation system seemed to have caused some
confusion within the general public. A number of people detected
possessing, using or cultivating small quantities of cannabis now
were under the impression that this was legal. Police and other
justice officials demonstrated good understanding of technical aspects
of the new laws. However operational law enforcement officers were
reluctant to contemplate exercising discretion in the issuing of
notices (for example, only issuing a CEN if this was likely to achieve
some public benefit), and had not thought about ways of using expiation
notices to reshape cannabis markets (for example, to drive out organised
crime elements by flooding some locations or groups with notices).
80. From reviewing law enforcement and other criminal justice
attitudes and practices the general conclusion is that, despite
initial opposition from the Police Association and some concerns
expressed by the Police Department, the expiation notice approach
now enjoys general support. One major source of concern was that,
because cultivations of up to ten plants to be dealt with by means
of expiation, some individuals and groups may be exploiting the
system for commercial purposes.
81. One way of dealing with this problem may be to reduce
to three or four the number of plants for which a notice can be
issued. Alternatively, police could give consideration to improving
intelligence systems, so that individuals or groups exploiting the
CEN system for commercial purposes could be 'driven out of the market'
by being served with repeated notices. Jurisdictions which took
the latter course would still leave scope for the genuine 'amateur'
cultivator, who may be unable to obtain sufficient yield from a
small number of plants.
2 Nadelmann, 1992.
3 Reuband, 1991.
4 Walters, 1994.
5 Amendments to the Opium Act of 1976 delineated
'drugs presenting unacceptable risks' from 'cannabis products' and
guidelines were issued regarding the enforcement of drug laws. Ultimately,
the changes increased penalties for possession and dealing in 'drugs
presenting unacceptable risks' and decreased the penalties for possession
and dealing in cannabis products.
6 The South Australian Cannabis Expiation Notice (CEN) System was
introduced in 1987 as a result of a 1986 amendment to the Controlled
Substances Act 1984 which introduced civil penalties, in the form
of a fine, for possession or use of small amounts of cannabis, thus
offenders could avoid obtaining a criminal conviction. Non?payment
of the fine or where commercial cultivation is suspected may, however,
result in criminal charges. 7 A similar, but not identical, expiation
scheme was introduced in the ACT in a 1992 amendment to the Drugs
of Dependence Act 1989.
Those states were Alaska, California, Colorado, Maine, Minnesota,
Mississippi, Nebraska, North Carolina, Ohio, Oregon, and South Dakota.
5 DiChiara & Galliher, 1994.
9 Hall et al. 1994.
10 Robins, 1984; Bureau of Justice Statistics, 1992.
11Marks, 1994. In the United States, US$13.2 billion
of federal funds for were allowed for in the 1994 National Drug
Control Strategy, an increase of $1 billion over the previous year.
12 Barnard & Withers 1989, cited in Marks 1993.
13 Marks, 1993.
14 Vallance, 1993 ; Sarre, 1994.
15 While black market prices for cannabis are inflated, they are
nothing like as high as that for heroin, or indeed, as that of predicted
black market prices for tobacco, should it ever become prohibited.
This is because the demand for more dependence-producing substances,
such as heroin or tobacco, is less elastic than that for cannabis
as a result of the presence of habitual users who consume most of
these products (Marks 1993).
16Aldrich & Mikuriya, 1988.
17 Suggs, 1981.
18 Caputo & Ostrom, 1994.
20 Makkai, 1994.
21 Cook, 1980.
22 Reuter & Kleiman, 1986.
23 Nadelmann, 1992.
24 Reuter, 1987.
25 It is noteworthy that the rate of dependence on all drugs by
Dutch citizens is less than half of the US rate of dependence on
heroin alone (Vallance, 1993)
26 Engelsman, 1989; van Vliet, 1990; Wijingaart, 1988a, cited in
27 Reuter, 1987.
28 Kleiman & Saiger, 1989-90; Reuter, 1987.
29 Vallance, 1993.
30 Wish, 1990.
31 Sarre, Sutton & Pulsford, 1989; Christie, 1991; Donnelly,
Hall & Christie in press.
32 Oregon: Carr, 1975; Nebraska: Suggs, 1981.
33 Johnston et al. 1981; Vallance 1993.
34 McGeorge, 1994.
35 DrugScope; 'Cannabis and the Gateway Hypothesis',
36 e.g. Cuskey et al. 1978
37 Hall et al. 1994.
38 Nadelmann, 1992.
39 Reuband, 1991.
40 Walters, 1994.
41Sarre et al, 1989.
42 Christie, 1991.
43 Sarre et al, 1989.
44 Christie, 1991.
45 Donnelly and Hall, 1994.
and Ali, 1995:p.iv; reference missing from original document.
47 Bowman and Sanson-Fisher, 1994: p3.
48 Hall et al, 1984.
49 Bowen and Sanson-Fisher, 1994.
50 McDonald et al, 1994: pxii.i
51 Recommendation 7.1: Use and possession of a small quantity of
should no longer be an offence. 'Small quantity' should be defined
as no more than 25 gm (half the amount currently specified in the
xxRecommendation 7.2:.Cultivation of up to five cannabis plants
per household for personal use should no longer be an offence. 'Household'
should be defined to exclude everything other than private residences.
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* This paper is based on a paper complied by Mike
Ashton of Drug and Alcohol Findings from the following two reports:
I. Shona Morrison and David Mcdonald. A Comparison of the Social
Impacts of the Legislative Options for Cannabis and their Enforcement:
An Overview from the Literature. The Social Impact of Legislative
Options for Cannabis in Australia. Working Paper No. 1. Australian
Institute of Criminology, April 1995.
II. Adam Sutton and Elizabeth McMillan. A Review of Law Enforcement
and Other Criminal Justice Attitudes, Policies and Practices Regarding
Cannabis and Cannabis Laws in South Australia. Canberra: Department
of Health and Aged Care, May 1998.