CANNABIS IN AN AUSTRALIAN CONTEXT:
History, Laws, and International Treaties

Definitions

In 1978 the South Australian Royal Commission into the Non-Medical Use of Drugs issued a comprehensive discussion paper on cannabis ([1]South Australia 1978). It proposed a general and a specific definition of cannabis along the following lines. Cannabis generally refers to 'the cannabis plant and any preparations made from the plant, including the dried leaves and flowering tops, resinous material separated from the plant and refined oil' ([2] South Australia 1978, p.i).

Like the word 'marijuana', 'cannabis' is also used to refer specifically to the 'dried preparations of the plant itself' ([3] South Australia 1978, p.i). The words 'cannabis resin' and 'hashish' are used when referring to the resin of the cannabis flower. Cannabis is a Latin word meaning hemp. The expressions 'hemp' or 'Indian hemp' are particularly used in older documents cited in this chapter and refer to the whole of the cannabis plant.

Cannabis in history

From its earliest recorded uses, cannabis has been important in commerce and warfare. Its fibrous stems have been used to make textiles, paper, ropes and bowstrings. Cannabis has been employed as a medicine and as a psychoactive drug for social and religious purposes. Cannabis seeds have been used as an ingredient in the manufacture of soap, lamp oil, paint and varnish ([4] Abel 1980, p.x) and as bird seed.

According to [5] Abel (1980), the earliest recorded use of cannabis occurred in Taiwan, approximately 10,000 years ago. It also appears to have been used in China as early as the second century BC for clothing, shoes, bowstrings and for its anaesthetic properties. In India, it is known to have been utilised for its psychoactive properties in religious ceremonies and was an ingredient in three preparations — bhang, ganja and charas. Its use has been documented in Asia Minor — in Turkey — as early as 1,000 BC. Both the Greeks and Romans recorded its efficacy as a medicine — especially for treating earache. One particular example of its use in the Middle East must be detailed because of its influence on misconceptions about the properties of the drug. Between the 11th and 13th centuries AD, a sect known as the Assassins, followers of Hasan-ibn-Sabah, dominated the Middle East through a reign of terror. Marco Polo reported that the Assassins used a drug. He did not identify hashish as this drug and it appears, in any case, that the drug used by the Assassins was not used to rouse them to bloody deeds. However, in the 19th century a number of European writers claimed that the word 'Assassin' was a derivation of the word 'hashish'. A link was thus forged and popularised associating cannabis and violence; an association that was repeated in the 20th century in the anti-cannabis writings of Harry Anslinger, chief of the United States Federal Bureau of Narcotics [6] (Abel 1980).

In the Middle Ages cannabis was used for its psychoactive effects as well as commercially. Its use as a mind-altering drug was widespread in Egypt and seems to date from around the 13th century. In medieval Europe cannabis appears to have been employed as a folk medicine, particularly for the treatment of toothache and rheumatism, and in childbirth. Its role in witchcraft resulted in a Papal fiat in the 15th century which condemned witchcraft and the use of hemp in the satanic mass [7] (Abel 1980). Its major use in Europe during the Middle Ages and into the time of the colonial expansion of the European powers was to produce ropes and cordage — especially for ships' rigging and anchor ropes. In Italy, hemp was a major crop, particularly important in establishing states such as Venice as seafaring powers. The Venetians operated a state-run hemp factory as a way of achieving quality assurance.

The historical importance of hemp is evidenced by a decree issued by Henry VIII in 1533 that 'for every sixty acres of arable land a farmer owned, a quarter acre was to be sown with hemp. The penalty for not doing so was to be three shillings and four pence' [8] (Abel 1980, pp72-3). Hemp cultivation was clearly a vital ingredient in enabling aspiring maritime powers to exploit the riches of the New World. However, despite the threat of penalties, the British had little success in stimulating the production of cannabis domestically. They were more successful in their American colonies:

'During the 17th century Indian hemp was the basis of the American Colonialists' trade and commerce, and so great was the need to equip the British Navy that James I issued a Royal Decree to instruct colonialists to increase their hemp production' [9] (Hindmarch 1972, p254). It appears that more widespread use of cannabis in Europe for its psychoactive effects dates from the period of colonial expansion.

Interest in cannabis and other drugs was stimulated by the diaries and journals of travellers who described the use of cannabis and other drugs in Africa, India and Asia Minor, and by reports from soldiers in colonial armies who experimented with cannabis while serving overseas. One of the first Western publications on drugs was Garcia Da Orta's Colloquies on the Simples and Drugs of India published in 1563, which described the effects of bhang (a concoction containing cannabis). This publication was followed by several other books by European adventurers published in the latter part of the sixteenth century. These works were not only important in spreading knowledge of cannabis' psychoactive properties, but in popularising misconceptions about the drug.

For example, a widespread belief that the effects of consuming opium and bhang (which contained both opium and cannabis) were identical can be dated from this period. It appears both in the works of the Dutchman John Huyghen van Linschoten and the Portuguese Fray Sebastien. The linkage between cannabis and violent and dangerous behaviour also dates from around this time — in particular, from the writings of the Orientalist Silvestre de Sacy. Colonial expansion and colonial wars also brought with them new understandings in Europe of the medical uses of cannabis. [10] Abel (1980) claims that by the 17th century 'the medicinal properties of the plant were fairly well known to the medical profession' (p116) and by 1682, cannabis seeds were listed in the New London Dispensatory as a remedy for coughs and jaundice.

In addition to increasing interest in cannabis being shown by scientists and doctors, hashish (and other drugs such as opium) became known to European students, writers and artists. In England, Egyptian hashish sweets such as Turkish Delight were eaten by university students. In the 19th century, hashish was used by the French Hashish Club which numbered among its members Theophile Gautier, Alexandre Dumas, Victor Hugo and Eugene Delacroix. While not so popular among English writers and artists, it was used around the turn of the century by the Decadents including WB Yeats and Ernest Dawson. For French and English writers, hashish, like other drugs, was taken to give them new experiences to write about, as a plot device, and it was employed to enhance creativity.

Another important aspect of the colonial experience in the spread of cannabis to Western Europe is seen in the work of W.B. O'Shaughnessy, an Irish doctor posted to India who is credited with introducing cannabis to Western medicine [11] (Abel 1980). While in India he experimented with cannabis in the treatment of a wide range of diseases including rheumatism, cholera, tetanus and epilepsy, and was enthusiastic enough about its usefulness to commission its conversion to a form suitable for medicinal use. This extract was widely prescribed for childbirth, migraine, insomnia, coughs and the treatment of opium withdrawal [12] (Abel 1980).

However, Western use of cannabis for medicinal purposes did not extend much beyond the first few decades of the 20th century. The medical profession turned its attention to other drugs and other methods of administration. The science of organic chemistry enabled drugs like morphine and cocaine to be isolated, and chemical synthesis of drugs such as heroin to occur [13] (Musto 1991). The hypodermic syringe was invented in 1845 and enabled more efficient administration of drugs. Morphine was isolated in 1803 and unlike cannabis was water soluble and thus injectable [14] (Abel 1980).

Further, the growth of the pharmaceutical industry enabled the new drugs to be mass produced, advertised and distributed [15] (Musto 1991). In addition, the strength of commercially available cannabis varied considerably, and administration of the same amounts of the drug appeared to elicit different responses in different patients. There were reports of adverse effects in patients [16] (Manderson 1993).

In contrast, drugs like morphine and later heroin were enthusiastically embraced by doctors because they were fast-acting, and provided reliable and very effective pain relief. Some use of cannabis for medical purposes did remain. Until the late 1930s 'Parke Davis, Eli Lilly and Squibb ... marketed preparations of cannabis extract and promoted them for the treatment of asthma, tension and pain' [17] (South Australia 1978, p98). Cannabis appeared as 'extractum cannabis' in the United States Pharmacopoeia until 1942 (Australia 1977). In Australia, tincture of cannabis was used until the mid-1960s [18] (Caswell 1992).

Medical and scientific interest in cannabis has largely been dormant until recently. In the United States renewed attention is being given to its possible therapeutic properties, particularly as an anti-emetic for cancer chemotherapy patients and as an agent for reducing intra-ocular pressure in glaucoma sufferers ([19] Trebach & Zeese 1990). Some scientific debate is also occurring in Australia [20] (Caswell 1992; see also [21]Appendix 1).

If non-medical consumption of cannabis in the 19th and early 20th centuries was regarded as a problem at all, it was in respect of its use by colonised peoples and minority groups. However, in relation to colonised peoples, the attitudes of the Western powers were far from consistent. For example, cannabis was widely used in India and Egypt — both subject to British rule. In Egypt, local officials and foreign rulers, including the Turks, attempted to suppress its use in the 19th century. The British, who received no revenues from Egyptian cannabis production, supported these attempts.

The situation was more complex in India. The British government initially appears to have had little interest in cannabis use among Indians. British complacency was no doubt largely due to the fact that, since 1798, the government had licensed the manufacture and sale of hemp drugs in India and received considerable revenues as a result. However, pressure from local Indian administrators and later from their British counterparts — concerned that cannabis use was contributing to crime, illness and social unrest — finally resulted in the establishment of the Indian Hemp Drugs Commission in 1893. The Commission reported in 1894. Loss of revenue if cannabis were to be banned was a factor in the Hemp Commission's conclusion that prohibition would not be justified. Other important considerations for the Commission were lack of evidence about the ill effects of cannabis, the difficulties of enforcing prohibition and the important place of the drug in the religious and social life of the sub-continent.

The use of cannabis by Black Africans was largely ignored by the colonial powers. However, South Africa had concerns about cannabis use among Indians brought to work in the colony. In 1870 a law was passed forbidding the smoking, use or possession of hemp by Indians.

In the United States, anxiety about cannabis use was associated with its possession by poor ethnic groups. It appears to have been used first by Mexican refugees fleeing into the south-western states from the 1910 Revolution. The earliest US laws proscribing the use of cannabis can be found in those states. Cannabis use later spread to the Black population. By 1937 there were prohibitions on cannabis across the country.

Development of international treaties

Australian drug laws, like those of many other countries, closely follow the development of international drug laws, so in this section the growth of international drug treaties will be described. These treaties are designed to control the international traffic in certain drugs and to encourage domestic restrictions on their supply and use.

The influence of the United States in the conception and development of these instruments has been enormous. Justice Michael Kirby has characterised the degree of international cooperation brought about by the fear of drugs as 'exceptional' (1992, p312). However, fear was not the only ingredient in early crusading by the United States for international action. A complex array of factors was at work.

The first international meeting on drugs was concerned with opium and, in particular, with Britain's opium trade with China. It was attended by 13 nations and held in Shanghai in 1909. At the Shanghai Conference the United States argued for a total prohibition on opium, and was opposed by the United Kingdom. According to [22] Abel (1980) the background to the meeting was as follows.

In 1882 the United States Congress passed the Chinese Exclusion Act. In retaliation, China prohibited the importation of American manufactured goods: Faced with the loss of the lucrative Chinese market, and aware of China's efforts to eradicate its own domestic opium problem, President Theodore Roosevelt convened an international conference in 1909 in Shanghai to help China eradicate the problem of opium addiction among its inhabitants. By trying to impress China with its goodwill and concern about her drug crisis, the United States hoped to change China's attitude towards American goods' [23](Abel, p193).

While economic factors were undoubtedly important in precipitating US action, they were not the only considerations. Fear of social unrest, racist attitudes and moral crusading all played a part. In addition: Missionaries from the United States in China had long been publicising the source and the pernicious effects of opium smoking among the Chinese. Given the role of England in that trade, the [Indian Hemp Commission] report seemed like a whitewash for British commercial purposes and fanned American progressive opinion even further against the European imperialists in Asia [24] (South Australia 1979, p42).

The 1909 conference did not produce an international treaty. Another international drugs conference was held in 1912. At the 1912 Hague Conference some 46 nations discussed morphine, cocaine, cannabis and heroin, as well as opium. The outcome of the conference was the Hague Convention for the Suppression of Opium and Other Drugs. It required the parties to 'confine to medical and legitimate purposes the manufacture, sale and use of opium, heroin, morphine and cocaine' [25] (quoted in Manderson 1993, p63) Both the United States and Italy wanted cannabis included in the Convention, but they were unsuccessful.

The 1925 Geneva Convention on Opium and Other Drugs was a more significant document. As a result of lobbying by Egypt, Turkey and South Africa, who were supported by the United States, cannabis was included in the Convention. The Convention also created an international scheme for the monitoring and control of traffic in narcotic drugs, together with an administrative agency — the Permanent Central Opium Board. Import and export quotas were established, as well as statistical reporting requirements. The Convention required the parties to 'enact effective laws to limit exclusively to medical and scientific purposes the manufacture, import, sale, distribution, export and use of cannabis in the form used for medical purposes at the time' [26] (South Australia 1978, p34). Significantly, the word 'legitimate' which appeared in the 1912 Hague Convention was removed from the 1925 Geneva Convention.

Finally, the Narcotics Limitation Convention of 1931 targeted the manufacture of narcotics and required the parties to limit it to scientific and medical purposes. Controls on licit manufacture were seen as important, because apart from illicit imports from abroad, leakage from the licit market was a source of illicit use in Western nations.

Inquiries into drug use and trafficking

The number of inquiries into drug use and trafficking have been legion — both in Australia and overseas. Three common features are seen in many of them. First, many question the alleged ill effects of cannabis use. Second, some make recommendations for law reform. Third, most inquiries have had little impact on public policy or legislative change in relation to cannabis use.

In Australia, for example, governments have generally preferred to rely on law enforcement, treatment and education in their quest to reduce drug use [27] (Hartland et al. 1992). They have been far less ready to embrace a philosophical shift in policy towards minimising the harm resulting from drug use or to tackle politically sensitive issues such as cannabis law reform. As mentioned earlier, the first inquiry relating to cannabis dates from 1893 when the British administration in India established the Indian Hemp Drugs Commission. The Commission heard nearly 1,200 submissions, both oral and written. It had a wide mandate, including the effects of cannabis use on 'the moral and social life of the people of India' [28] (Abel 1980, p127). While the Commission found that excessive use of cannabis could lead to mental disorders, immorality and susceptibility to disease, it concluded that the evidence demonstrated 'most clearly how little injury society has hitherto sustained from hemp drugs' [29] (quoted in Abel 1980, p131). In particular, the Commission reported that moderate use had no appreciable physical or mental effects, did not induce immoral behaviour and had little connection with crime.

Other major overseas inquiries that failed to discover any dependence-producing properties in cannabis, harm as a consequence of moderate use, a strong link with crime or a progressive effect leading inexorably to use of drugs such as heroin, cocaine or morphine were:

  • the Panama Canal Zone Military Investigations (1916–1929);

  • the La Guardia Committee Report 1944 — United States;

  • the Report of the Hallucinogens Sub-Committee of the United Kingdom Advisory Committee on Drug Dependence 1968 (Wootton Report);

  • the report of the Commission of Inquiry into the Non-Medical Use of Drugs 1972 (Le Dain Commission) — Canada; and

  • the report of the National Commission on Marihuana and Drug Abuse 1972 (Shafer Commission) — United States.

In addition, both the Le Dain and Shafer reports contained proposals for law reform. The Shafer report recommended decriminalisation of:

  • possession of marijuana for personal use in private; and

  • casual distribution in private of small amounts of marijuana for no or insignificant remuneration ([30]United States 1972, pp152–4).

  • It also recommended that possession in public of an ounce or less of marijuana should not be an offence but should be subject to seizure [31](United States 1972, pp152-4).

  • The Le Dain Commission recommended that simple possession offences be repealed.

Other overseas investigations which failed to uncover unequivocal evidence about the harmful effects of cannabis were a study of the United States Institute of Mental Health entitled Ganja in Jamaica (1975), and a United States government study on Costa Rica (1975). It should not be surmised, however, that overseas investigations have all concluded that cannabis use presented no risks to drug users. United Nations reports published between 1973 and 1974 found that cannabis use was likely to lead to dependence, and resulted in public health and social problems. A 1974 US Senate report on Marihuana-Hashish Epidemic and its Impact on US Security reported that cannabis use resulted in brain damage, amotivational syndrome, and genetic and reproductive defects.

In Australia, there have been a large number of Parliamentary inquiries and Royal Commissions into drug use and drug trafficking. In 1971 the Senate Select Committee on Drug Trafficking and Drug Abuse (the Marriott Committee) was established. Its brief included investigation into the incidence, distribution and causes of drug use, and the adequacy of legislation and educational programs. It concluded that penalties for drug use should be commensurate with the different degrees of harm presented by different drugs, that young, first offenders should be treated leniently and that penalties for trafficking should be severe. However, its recommendations were cautious: that, pending further sociological and medical research, 'present restrictions on the use of cannabis drugs should be retained in Australia' (Australia 1971, p91).

The Marriott Committee report was followed in 1977 by one of the most significant Australian inquiries into drugs. In that year, the Senate Standing Committee on Social Welfare (the Baume Committee) produced its report Drug Problems in Australia — an Intoxicated Society? which looked at the use of licit and illicit drugs in Australia. Like other reports, before and since, it recognised differing harms produced by different drugs and concluded that drug use was more a social/medical problem than a legal one. It also considered the social and personal harms flowing from the illegal status of some drugs and recommended that:

  • 'legal controls [should] not [be] of such a nature as to inhibit rehabilitation of the user or to cause more social damage than use of the drug causes' (Australia 1977, p164);

  • cannabis legislation should be enacted that 'recognises the significant differences between opiate narcotics and cannabis in their health effects and in the criminal impact on users and the community' (Australia 1977, p164);

  • possession of marijuana for personal use should no longer be a criminal offence and should attract only a fine;

  • penalties for possession of hashish, hashish oil and purified THC should remain at their present levels because of the potency of these drugs.

Commonwealth Government response to the Baume Committee report was both tardy and hostile. [32] Hartland (1991) quotes Senator Baume's view of that response:

The Prime Minister of the day, rather than come and say I was a fink, did something cleverer. He appointed a learned conservative Judge to head up a Royal Commission into Drugs with terms of reference which virtually made it inevitable that the learned Judge would bring out a report which said we need more social control, heavier penalties, more enforcement authorities, and don't change the laws (p63).

In 1978 the New South Wales Joint Parliamentary Committee upon Drugs handed down its Report into Drug Abuses. Its mandate was to examine the effects, use and supply of drugs of dependence together with policy issues. Alcohol and tobacco were not included in the Committee's terms of reference. The Committee expressed concern about 'the growing social stress that must be arising from the fact that a great many young adults, by indulging in a drug which they see as less damaging than alcohol, run the risk not only of involvement with the criminal law, but also have the prospect of ruined careers' [33](New South Wales 1978, p76). The report and the Committee's earlier Memorandum to the New South Wales Parliament recommended that:

  • personal use of cannabis no longer be a criminal offence;

  • first offenders be given bonds and probation and on successful completion of these, all records be expunged; and

  • penalties for trafficking in cannabis be severe.

The next major inquiry was the Australian Royal Commission of Inquiry into Drugs (Williams Royal Commission). Its multi-volume report was released in 1979. Rather than considering the degree of harm produced by different drugs, the Williams Royal Commission took the view that cannabis was not a harmless drug because it produced an intoxicating effect. It concluded that removal of prohibitions against cannabis would depart from the intention and spirit of the Single Convention on Narcotic Drugs, have a 'domino effect' in that it would stimulate calls for the relaxation of prohibitions on other drugs, and send a signal to the community that drug use was acceptable.

The Williams Royal Commission recommended that consideration of relaxation of prohibitions on cannabis not occur for 10 years, during which time information about the drug and its use would be collected by National and State Drug Information Centres. Although the Commonwealth government set up a National Drug Information Centre, the State and Territory centres were not established — making the review recommended by Williams impossible.

Like the Baume Committee report that preceded it, the report of the South Australian Royal Commission into the Non-Medical Use of Drugs (the Sackville Royal Commission) prompted little government response to its recommendations. In relation to cannabis, the Commission dismissed the progression theory and remarked that where cannabis users also consumed other illicit drugs, this was due to the illegal status of cannabis itself.

The Committee made wide-ranging recommendations, including the repeal of the offence of use or administration of drugs, and the establishment of drug assessment and aid panels. Some of its most radical proposals related to cannabis and cannabis resin. It recommended that 'cultivation [of cannabis] for personal use, use in private and small-scale gratuitous distribution in private to adults ... [should] not be a criminal offence ... No distinction ... [should] be made between cannabis and cannabis resin, but cannabis oil ... [should] remain subject to a policy of total prohibition' ([34] South Australia 1979, p375).

The Commission found no evidence to 'support the view that cannabis [was] associated with a tendency towards aggression and violent crime' ([35] South Australia 1979, p51). In addition, the Commission questioned some of the psychological and physiological ill effects attributed to cannabis, such as amotivational syndrome and psychosis (though it concluded that there was some small risk of brain damage). In general, it did not dramatise the possible adverse effects of cannabis use, recognising the existence of equivocal research findings and insufficient data.

The next major Australian inquiry which touched on cannabis was the investigation by the Parliamentary Joint Committee on the National Crime Authority which reported in 1989. Its terms of reference included the scope and nature of the trade in illegal drugs, the efficacy of law enforcement, and the costs and efficacy of prohibition. It concluded that: 'If the aim of the policy [of prohibition] was to reduce the use of prohibited substances, or even to minimise access to them, it has clearly failed' (Australia 1989, p92), And it concluded that 'should the latest initiatives fail to make any significant inroads on the market then it would be appropriate to consider some relaxation of the present prohibitionism as an alternative policy' (p123). Before concluding this section, a number of recent inquiries into drugs should be mentioned.

In 1991 the ACT Legislative Assembly Select Committee on HIV, Illegal Drugs and Prostitution tabled its report on Marijuana and Other Illegal Drugs. The focus of the report was on the 'effectiveness of the current legal and social controls on drug taking, with particular reference to marijuana' [36](Australian Capital Territory 1991, p1). Proceeding from a belief in harm minimisation and the view that drug use can never be completely eliminated, the Committee recommended that:

  • possession of up to 25g of cannabis no longer be an offence;

  • possession of more than 25g of cannabis and less than 100g of cannabis attract a fine of $150;

  • possession of more than 100g of cannabis should incur a penalty of $5,000 or two years imprisonment, or both;

  • cultivation of five cannabis plants should no longer be an offence; and

  • there should be no offence of self-administration in respect to cannabis.

Another recent inquiry into illicit drugs was undertaken by the New South Wales Legislative Council's Standing Committee on Social Issues. However, at the date of writing, the Committee's report had not been completed and there have been suggestions that it will not be (Symonds 1992). In South Australia, a Legislative Council Select Committee on the Control and Illegal Use of Drugs of Dependence has been established. Among other things it has been charged with reporting on the effectiveness of current drug laws in controlling drug trafficking, the costs of enforcing anti-trafficking laws and the social impacts of criminal activity flowing from illicit drug use and trafficking. In Queensland, an Advisory Committee on Illicit drugs was established in the aftermath of the Fitzgerald Committee of Inquiry into Possible Illegal Activities and Associated Police Misconduct. The Committee made cannabis the subject of its first discussion paper for a number of reasons. Among these were the fact that cannabis is the most widely used illicit drug and the illicit drug having the greatest impact on the criminal justice system. The Committee is now seeking submissions on 'preferred legislative, enforcement and social responses to the issues of cannabis use and production' [37](Queensland 1993, p3).

Australian laws

Before embarking on a description of the development and present content of Australian drug laws, it should be stated that the Australian Constitution contains no general power to legislate on crime. While many Commonwealth criminal laws have been enacted incidental to the heads of power enumerated in the Constitution, criminal laws have largely been the province of the States. For this reason, the focus of this section is on State and Territory legislation.

As [38] Manderson (1993) has remarked, consumption of drugs in the 19th century was largely a matter of personal choice. Drugs — including the opiates — were available from a wide variety of sources including medical practitioners, pharmacists, homoeopaths, sellers of patent medicines and grocers. Unlike the opiates, however, cannabis was little known or used in the Australia until the 1960s. There were some exceptions. For example, medicinal use of cannabis occurred in the 19th century and to a minor extent, in the 20th century. Cigares de Joy (cannabis cigarettes) were sold over the counter in Australia into the 20th century [39] (Manderson, 1993).

However, according to [40] Manderson (1993) 'As late as 1938 Smith's Weekly reported "the first appearance in Australia" of "a Mexican drug that drives men and women to the wildest excesses ... distorts moral values and leads to degrading sexual extravagances"' (p72). This drug was, of course, cannabis.

A number of forces coalesced in the development of drug laws in Australia. The first laws — poisons acts — specified certain drugs required to be sold by medical practitioners or chemists and stipulated labelling requirements [41] (Carney 1981). However, these labelling requirements did not apply to drugs sold under medical prescription, to patent medicines or to homoeopathic preparations [42] (Manderson 1993, p9).

According to the Joint Parliamentary Committee (Australia 1989) these early controls were instituted in response to the use of arsenic in suicides, poisonings and homicides. In 1862, South Australia enacted the first Australian statute regulating the sale and use of poisons [43] (Carney 1981). In 1876 New South Wales and Victoria followed with Sale and Use of Poisons Acts. Most importantly, these early laws generally did not stipulate who could use drugs or for what purposes [44] (Fox & Mathews 1992).

The first laws conceptualising drugs as a problem were enacted in the 19th century and were the product of racism and the temperance movement [45] (Carney 1981). This phase of legislative controls on the supply and use of prohibited drugs has been characterised as involving 'the application of criminal penalties to certain activities related to drugs, particularly the supply of opium, which had not previously attracted legal sanctions' [46] (South Australia 1978, p33). Early laws singled out opium smoking — a practice of Chinese immigrants who had come to Australia in the mid-19th century during the Gold Rush. There were two targets — the Chinese themselves and the Aboriginal people believed to be financially and sexually exploited by the Chinese who provided them with opium.

In 1891 Queensland passed the Sale and Use of Poisons Act which proscribed the supply of opium to Aboriginal people, except for medicinal purposes. Later other States enacted laws directed at opium smoking — South Australia passed the Opium Act 1895, and Victoria passed the Opium Smoking Prohibition Act 1905 and the Police Offences (Amendment) Act 1908. The Commonwealth, by a 1905 Proclamation, banned the importation of opium suitable for smoking.

While racism was a very significant force in the development of early Australian drug laws, other influences were also at work. The late 19th century witnessed a movement away from laissez-faire attitudes towards greater interventionism and a belief in the efficacy of law in promoting social and moral goals [47] (Manderson 1993). It witnessed a struggle for supremacy between the medical professional, other health professionals and the sellers of patent medicines. It also saw the growth of the prohibitionist movement. Prohibitionist movements were not confined to the United States nor to alcohol — patent medicines and tobacco were also prohibitionist targets (Manderson 1993).

The second phase in the history of Australian drug laws involved domestic implementation of international agreements [48] (South Australia 1978). The growth of international conventions led an inexorable, although very gradual expansion of Australian drug laws to cover cannabis. Australia was not alone as a nation in feeling the pressure to conform to these international instruments. However, it was subject to additional pressures from the British government. The United Kingdom represented its colonies and dominions at international meetings and insisted that they comply with international controls. Following the 1925 Geneva Convention, the Commonwealth was the first government to succumb to the exhortations of the United Kingdom. It proscribed the import of cannabis in 1926 through the Customs (Prohibited Imports) Proclamation and at the same time banned the export of cannabis. Efforts to bring the States into line were less successful. Cannabis use in Australia was not a problem and there appears to have been little domestic agitation in support of proscription. However, while the response of the States was slow, it was nevertheless inevitable: It was enough that international organisations had called for controls and that the calls had been heeded by the United Kingdom Parliament, whose attitudes in this as in other matters were of paramount importance to Commonwealth and State legislators (South Australia 1978, p6).

The first State controls on cannabis use were introduced in Victoria in the Poisons Act 1928, which penalised the unauthorised use of Indian hemp and resin. This was followed by the Dangerous Drugs Act 1934 (SA), the Police Offences Amendment (Drugs) Act 1935 (NSW), the Health Act 1937 (Qld), a 1950 Proclamation under the Police Offences (Drugs) Act 1928 (WA) and the Dangerous Drugs Act 1959 (Tas). Australia's attitude to drugs and drug laws became entrenched at an early stage. Manderson (1993) has described it very clearly — lack of a domestic problem (and this particularly applied to cannabis) meant that legislation was accepted uncritically; no pressure groups existed to stimulate debate or mount opposition, and the absence of a drug problem meant that it was impossible to evaluate the costs and benefits of the prohibitionist model — it was simply assumed that the model worked effectively:

As the structure of modern drug laws ... took shape, each brick depending on those beneath it for support and validity, few remembered or even thought to question why they had ever been laid. So effective had the gradual process of entrenchment been that alternative approaches soon became unthinkable. What counted was the preservation of the laws already in place. If they were failing, the answer was simple — more of the same' [49](Manderson 1993, p75).

The impact of drug use in the 1960s has been well-documented and was an international phenomenon. But until this time, drug use was not viewed as a widespread social problem in Australia — rather as contained and containable. The consumption of drugs such as morphine, pethidine, opium and heroin by dependent users was chiefly confined in Australia to those with a dependence that was therapeutic in its origins or to minority groups — for example, very old Chinese members of the community.

In 1960 Australia reported to the Commission on Narcotic Drugs that some Indian hemp use was occurring in the 'theatrical world' (quoted in Manderson 1993, p144). But during the 1960s, the nature and extent of illicit drug use — including the use of cannabis — changed dramatically. It became more widespread, it became matter of choice (rather than 'necessity' through therapeutic dependence), it was embraced by students and youth, and it was associated with changing moral values and practices, alienation, and challenges to societal values and the political order. It brought increasing numbers of otherwise law-abiding Australians into contact with the criminal law, criminal penalties and associated stigmatisation. The use of drugs such as cannabis and heroin came to be regarded both as a symptom of social malaise and a cause of it.

The third phase in the history of Australian drug laws commenced during the 1960s. From that time 'the States began overhauling their drug laws and the Commonwealth became much more actively involved in the field, both by ratifying new conventions and by revising the provisions of the Customs Act' ([50] South Australia 1978, pp35-6). In addition, in response to treaty obligations, the Commonwealth introduced new federal laws on drugs — the Narcotic Drugs Act 1967 was the first of these. At state level, control of recreational drugs was gradually removed from poisons statutes, whose original purpose was to 'regulate and control the supply and distribution of pharmaceuticals and poisons on public health grounds' ([51] Kirby 1992, p315), and placed into special legislation. Drug laws and drug policies from this time onwards can be characterised as follows.

  • First, a law enforcement approach became firmly entrenched at Commonwealth level with the important role played by Customs, which had no interest in any medical or public health model of drug use or supply.

  • Second, penalties were increased.

  • Third, there were changes to basic principles of criminal law — such as reversal of the onus of proof — in order to make convictions easier ([52] Manderson 1993).

Last, there was a shift in legislative emphasis away from drug users to drug traffickers. Both Commonwealth and some State laws distinguished between traffickable quantities of drugs (including cannabis) and amounts deemed as being less than traffickable quantities. For the most part, penalties for cultivation, production and manufacture, possession and use of cannabis, and possession of drug paraphernalia were substantial during the 1960s and 1970s. For example, in South Australia the penalty was $4,000 and/or 10 years imprisonment for knowingly cultivating cannabis (s5(2)(b)) and $2,000 and/or two years imprisonment for knowingly being in possession, using or administering (s5(1)).

Debate about cannabis, research that showed the widespread nature of cannabis use, alarming law enforcement statistics, the work of the early Parliamentary and other inquiries, and difficulties in administering some drug laws, led to the first legislative changes in the middle to late 1970s. These distinguished between simple possession of cannabis and other drugs. The first jurisdiction to change law enforcement practices and then legislation was the Australian Capital Territory. A non-enforcement policy in relation to simple cannabis possession offences was instituted following a number of court cases in which the police failed to secure convictions because the Public Health (Prohibited Drugs) Ordinance did not contain a definition of cannabis.

In 1975, the Ordinance was amended to include a definition of cannabis. At the same time the maximum penalty for possession of less than 25g of cannabis was reduced to $100. Some reforms also occurred in the Northern Territory. Under the Prohibited Drugs Ordinance 1977 (NT), a first offender was liable to a fine of $500; while second or third offences of possession were more heavily penalised, imprisonment was not provided as a sanction. Further legislative change occurred in the 1980s. The Drugs, Poisons and Controlled Substances Act 1981 (Vic) contained slightly less severe penalties for cannabis trafficking than for trafficking in other illicit drugs. The Drugs, Poisons and Controlled Substances (Amendment) Act 1983 set the maximum penalty for possession of less than 50g of cannabis at $500. In addition, s76 of the Act empowered magistrates to award an adjourned bond in certain circumstances in the case of an offence of possession of up to 50g of cannabis. No conviction could be recorded in the case of a first offender. Section 76 applies only to cannabis, not to other drugs, and it does not apply to trafficking offences in respect of any drug.

In South Australia, the Controlled Substances Act was passed in 1984. As originally formulated, the Act distinguished between offences involving cannabis or cannabis resin and offences involving other illicit drugs. The Act proscribed (and still proscribes) the possession, smoking, consumption, administration or self-administration, manufacture, sale or supply of drugs of dependence or prohibited drugs, and the possession of drug paraphernalia. Under the 1984 Act, the penalty for possession, smoking or consumption of small quantities of cannabis or cannabis resin was a maximum of $500. For any other drug of dependence or prohibited drug the maximum penalty was $2,000 and/or two years imprisonment. Similarly, some distinctions were made between cannabis and other drugs in respect of trafficking offences. More significant reforms came in 1986 with the Controlled Substances Act Amendment Act which provided for an expiation notice scheme. The expiation notice scheme commenced operation on 30 April 1987. Section 45a(2) of the Act enables expiation notices to be issued to adults in certain cases — for example, when less than 100g of cannabis or less than 20g of cannabis resin is involved. Notices can be issued in respect of cultivation that is not for commercial purposes, for smoking or consumption of cannabis or cannabis resin except in a public or prescribed place, and for possession of equipment used for the smoking or consumption of cannabis or the preparation of cannabis resin. Payment of the expiation fee before the expiration of 60 days from the date of the notice means that no conviction is recorded against the alleged offender. The fees are $50 for possession of less than 25g of cannabis and $150 for less than 100g of cannabis. In the case of cannabis resin the expiation fees are $50 for possession of less than 5g and $150 for amounts ranging between 5g and less than 20g of resin. Cultivation of 10 plants or less incurs a fine of $150. It should be noted that at the same time that the cannabis expiation notice system was introduced, amendments to the Act also substantially increased penalties for trafficking offences. In addition, amendments to the Controlled Substances Act in 1990 provide severe penalties for offences such as sale, supply and administration of prohibited drugs and drugs of dependence, including cannabis, to a child.

Although some jurisdictions reformed the law relating to personal consumption of cannabis, heavier penalties were introduced for trafficking offences and a scale of trafficking offences was commonly provided — for example, traffickable, indictable and commercial quantities. Manderson (1993) puts it this way:

The emphasis on Mr Big as an evil in his own right allowed a less severe approach to drug users by removing them from the centrality of drug laws. The harsh penalties imposed on marijuana smokers and other users of drugs could be softened without undermining 'the war on drugs' (p185).

The focus on the Mr Bigs of the drug world has also enabled legislatures to enact drug laws which give extensive powers of search and seizure to the police, and which give considerable powers in relation to the use of listening devices and telephone taps. While some reforms were put in place in the 1970s and 1980s, the picture that emerges nationally is an uneven one.

The Drug Misuse and Trafficking Act 1985 (NSW), for example, distinguishes only between cannabis and other drugs in the case of commercial trafficking. In the case of cannabis the maximum penalty that can be imposed is $500,000 or 20 years imprisonment, or both. For commercial trafficking in any other drugs, a life sentence can be imposed. In New South Wales, possession, administration and self-administration of prohibited drugs, including cannabis, are proscribed, as is the possession of equipment for the administration of prohibited drugs. Personal consumption offences (involving less than five plants or less than 25g of cannabis) make an offender liable to a penalty of $2,000 and/or two years imprisonment. Cultivation, manufacture and production, and supply are prosecuted on indictment. The Drugs Misuse Act 1986 (Qld) assigns dangerous drugs to Schedules under the Act. Drugs like heroin and cocaine appear in the First Schedule and cannabis sativa is listed in the Second Schedule. Offences relate to trafficking (s5), supply (s6), production of dangerous drugs (s8), possession (s9), and possession of drug paraphernalia (s10).

In addition, penalties vary in the case of aggravated supply which is defined in s6(2) of the Act as including supply to a minor, an intellectually handicapped person, and supply in an educational or correctional institution. While there are differences in the statutory penalties applicable to First and Second Schedule drugs, they are minor.

Under the Drugs Misuse Act Amendment Act 1990, the penalty for unlawful trafficking in cannabis carries a penalty of 20 years imprisonment, while for First Schedule drugs the penalty is 25 years (s5). Possession of cannabis carries a penalty of 15 years imprisonment, or 20 years imprisonment if the quantity equals or exceeds 500g or 100 plants (s9). The penalty for possession of drug paraphernalia is imprisonment for two years. Offenders may be fined in addition to or instead of being imprisoned (s54) and may be prosecuted summarily for minor offences (s13).

In 1989 the Australian Capital Territory remodelled its drug control legislation, and the Drugs of Dependence Ordinance was introduced with the idea of it being used as a model for all other jurisdictions. The Act establishes two classes of drug:

  • prohibited drugs which are subject to special treatment. (According to the Act's Explanatory Statement, prohibited drugs have no medical use and are harmful for recreational purposes); and

  • drugs of dependence, which are distinguished from prohibited drugs in the Explanatory Statement, in that they are said to have a medical use.

The Act defines cannabis, cannabis fibre, cannabis oil, cannabis plants and cannabis resin. Schedule 2 to the Act lists cannabis, cannabis oil and cannabis resin as prohibited drugs and defines commercial and traffickable quantities of the drug. In addition, cannabis is listed in Schedule 5 as a prohibited plant.1

The Act makes clear distinctions between personal use activities and trafficking. It reserves extremely harsh penalties for the latter and contains deeming provisions. It also makes distinctions in penalties between cannabis and other prohibited drugs. Cultivation of prohibited plants, including cannabis, is an offence (s162(2)), as is cultivation for the purposes of sale or supply (s162(3)), sale or supply, or possession for sale or supply (s165(1)). Possession, self-administration and administration of cannabis are offences under s171.

The harshest penalties are reserved for sale or supply of commercial quantities of cannabis — life imprisonment (s165), and cultivation of more than 1,000 plants — life imprisonment (s162(3)).

In the Northern Territory, the Misuse of Drugs Act 1990 prescribes a penalty of $2,000 or two years imprisonment for administering cannabis. Possession of less than a traffickable quantity 'attracts penalties ranging from a $10,000 fine to imprisonment for 14 years; possession of a commercial quantity attracts penalties ranging from 14 to 25 years imprisonment. The penalties for cultivation offences also depend on the quantity cultivated; commercial quantities carry a 25-year prison term; traffickable quantities carry a seven-year prison term; and other cases attract a penalty of a fine of $5,000 or imprisonment for two years' (Australian Capital Territory 1991, p35).

Like Queensland, Northern Territory legislation creates separate offences and penalties in respect of supplying illicit drugs to children. In the Northern Territory, the penalty is 25 years or imprisonment for life (s5). Offences and penalties relating to illicit drugs are covered by the Poisons Act 1971 and the Criminal Code in Tasmania, and in Western Australia by the Misuse of Drugs Act 1981.

In the Australian Capital Territory, changes to the law on cannabis were introduced by the Drugs of Dependence (Amendment) Act 1992. These amendments were by no means as far-reaching as those envisaged by the Legislative Assembly's Select Committee on HIV, Illegal Drugs and Prostitution (outlined earlier) which recommended the removal of personal possession offences involving small amounts of cannabis. However, the amendments do introduce an expiation notice scheme that applies to both adults and juveniles (s171A). Under the amendments, a simple cannabis offence is defined as: * an offence under s162(2) of cultivating or participating in the cultivation of not more than five cannabis plants; * an offence under s171(1) of possessing not more than 25g of cannabis. A police officer is empowered to serve an offence notice on a person believed to have committed a simple cannabis offence. If the prescribed penalty of $100 is paid within 60 days, then the offence is discharged and no conviction is recorded. The prescribed penalty of $100 is the same as that previously applying under the Act for possession of small amounts of cannabis.

Drug law reform is still an active issue for some Australians. In 1993, interest in drug laws and social policy resulted in the establishment of an Australian Parliamentary Group on Drug Law Reform — a group whose membership includes current and former politicians from different political parties and a range of jurisdictions, medical practitioners, researchers and members of the legal profession. Among the short-term goals being considered by the Committee are the rejection of criminal sanctions for personal use of drugs and the nationwide adoption of an expiation scheme model for personal use of cannabis ([53] Van Raay 1993).

Overseas legislation

In many European countries, no distinction exists in law between the so-called 'hard' and 'soft' drugs. In a recent study of 12 EC nations, only the following nations distinguished cannabis from other drugs:

  • Spain distinguishes between 'substances which can cause serious damage to health and cannabis and its derivatives' ([54] Leroy 1991, p58);

  • Ireland distinguishes between 'cannabis and other narcotic products' ([55] Leroy 1991, p58);

  • The Netherlands distinguishes between 'substances presenting an unacceptable risk' ([56] Leroy 1991, p58) and cannabis;

  • Italian law distinguishes between 'highly addictive drugs (Schedules I and III) and drugs with lesser addictive properties AND cannabis (Schedules II and IV)' ([57] Leroy 1991, p58); and

  • the United Kingdom Misuse of Drugs Act contains three Schedules in which drugs are placed according to their level of risk. Cannabis, some opiates, barbiturates and some amphetamines are classified as Schedule B drugs.

Drug use (involving both 'hard' and 'soft' drugs) is not proscribed in Spain, Ireland, Italy or The Netherlands. Possession for personal use is prohibited in Spain, Ireland, Italy and The Netherlands, but lesser penalties are provided when possession involves cannabis. In the case of trafficking offences, laws in Spain, Ireland, Italy and The Netherlands impose less severe penalties when trafficking involves cannabis.

In the United States, the federal Controlled Substances Act lists cannabis in Schedule 1 — where drugs with a high dependency potential and no accepted medical use are located. Possession of a controlled drug attracts a lighter penalty than does trafficking. Even so, penalties for possession are substantial — a first offender being liable to up to one year's imprisonment and a fine of between $1,000 and $5,000.

During the 1970s, at State level, 11 States adopted a civil penalty model for possession of small amounts of cannabis for personal use. Oregon was the first State to introduce civil penalty laws in 1973. In general, the maximum penalty for possession of small quantities of cannabis for personal use in the 'decriminalised' states is $100. Exceptions are Mississippi ($250) and Nebraska ($200).

Efforts to recriminalise these activities have been described as 'concerted' ([58]Reuter 1992), with William Bennett, the National Drug Control Director, personally appearing before a number of state legislatures to argue for recriminalisation. In 1990, Alaska reintroduced criminal penalties for possession of small amounts of cannabis.

In Canada, the federal Narcotic Control Act 1961 has remained largely unaltered to this day. There are six basic offences under the Act. These are: simple possession, trafficking, possession for trafficking, cultivation of opium or cannabis, import or export of scheduled drugs, and prescription shopping ([59] Solomon 1988). According to Solomon, apart from the offence of cultivation, the Act does not differentiate between scheduled drugs. Cannabis possession can be tried summarily or on indictment. In the case of simple possession offences, summary conviction of a first offence renders the offender liable to a fine of $1,000 and six months imprisonment. In the case of a subsequent offence, summarily prosecuted, the penalty is $2,000 and one year's jail. On indictment, an offender is liable to seven year's imprisonment.

The Canadian Government did not respond positively to the Le Dain Commission recommendation that possession of cannabis no longer be a criminal offence. However, in 1972 the Criminal Law Amendment Act gave judges a discretion to direct that an offender be discharged absolutely or on probation. It appears that law enforcement officers rarely proceed on indictment in the case of possession offences, and that 'judges rarely impose the maximum sentence or anything close to it in cannabis cases' ([60] Solomon 1988, p126).

In this section, particular attention is devoted to the laws and enforcement practices of The Netherlands and the United Kingdom. Illicit drug laws in both countries have been influenced by existence of international conventions. Initially both countries enacted drug laws in the absence of a domestic drug problem.

In The Netherlands illicit drug laws were first introduced in the Opium Act 1919. Apart from amending legislation in 1928, drug laws remained unchanged until the present Opium Act was passed in 1976. Current Dutch attitudes towards illicit drug use — manifested in the Prosecution Guidelines that govern the enforcement of the Act — are said to arise from a number of factors peculiar to Dutch society and history. First, realism and pragmatism. Second, a belief in social pluralism. Third, an ideology of normalisation in which 'illicit drugs are seen as a limited and manageable social problem rather than an alien threat forced on an otherwise innocent society' ([61] Leuw 1991, p2). Fourth, is the context of the criminal law itself. Dutch writers stress that the criminal law is not perceived as enforcing social morality but rather as 'an instrument of social control, whose results must be assessed from case to case' ([62] Ruter 1988, p6).

They further report that the criminal law has a minor role in The Netherlands. Until the introduction of the Opium Act 1976, drug offences in The Netherlands appear to have been actively prosecuted and severely sanctioned. According to [63] van de Wijngaart (1991), cannabis appeared in The Netherlands in the 1950s; harsh sentences were handed down, for example — 12 months imprisonment for minor cannabis offences; and media coverage was sensationalist.

However, despite sentencing practices, an increase in cannabis use was reported, especially among Dutch youth. During the 1960s pressure for law reform increased and culminated in 1976 with new opium legislation. The present Opium Act distinguishes between drugs posing unacceptable risks such as heroin, cocaine, LSD and cannabis oil, and hemp products — marijuana and cannabis resin.2 It also decreased penalties for possession of drugs for personal use, but increased penalties for trafficking in hard drugs. Overlying the offences and penalties in the Opium Act are police and prosecution guidelines which have produced a situation that some commentators have described as de facto decriminalisation. These guidelines relate to the 'intensity of police custody and preventive detention, prosecutorial alternatives (dismissal, fine, or prosecution) and penalties involving violations of the Opium Act, and were established by the Procurators-General in 1976' (Marshall et al. 1990, p395). The guidelines are made possible by the Expediency Principle set out in Articles 167 and 242 of the Code of Criminal Procedure. This principle operates where the public good is served by refraining from prosecution. It can operate for both individual offenders and categories of offence. In the case of the Opium Act, a number of activities are designated as 'not for prosecution, detection or arrest'. These include:

  • the sale of less than 30g of hemp products; and

  • dealing in, possessing or cultivating up to 30g of cannabis.

High priority is given under the guidelines to the detection and prosecution of traffickers. In Britain, like Australia and The Netherlands, drug laws were in existence long before the existence of a widespread domestic drug problem. During World War I concerns about drug taking by soldiers led to the issuing of Army Council orders forbidding the supply of cocaine, heroin, Indian hemp, morphine, and other substances to soldiers except by medical practitioners.

The existence of international conventions resulted in the enactment of the Dangerous Drugs Act 1920 — as a signatory of the Treaty of Versailles, Britain undertook to incorporate the 1912 Hague Convention into domestic law. Even at this early stage penalties were severe. Illegal possession of listed drugs could result in a 200 fine or six months imprisonment, or both. Penalties were higher for repeat offenders. The Dangerous Drugs Amendment Act 1923 raised these penalties. However, '... at most the total annual convictions and known addicts numbered only a few hundred until the second half of the twentieth century' ([64] Howitt 1990-91, p357).

The present Misuse of Drugs Act 1971 creates different classes of drugs according to their potential for harm and penalises activities such as possession and cultivation. Cannabis and cannabis resin are Class B drugs and, while subject to lesser penalties than Class A drugs, still carry substantial penalties. For example, summary prosecution for an offence of possession of a Class B drug can result in three months imprisonment and/or a 500 fine. If the offender is convicted on indictment the maximum penalty is five years jail or a fine, or both. Cultivation of a Class A, B or C drug exposes the offender to a penalty of six months incarceration and/or a 2000 fine on summary conviction, and up to 14 years imprisonment or a fine, or both, if convicted on indictment ([65] Fortson 1992). Like The Netherlands and Australia, the most substantial penalties are available for drug trafficking. While imprisonment is available as a sanction for cannabis possession in Great Britain, it appears that custodial sentences are not imposed for possession of cannabis for personal use. In addition, enforcement of the Misuse of Drugs Act may vary considerably throughout the nation, especially where cannabis is involved: In an urban area if a policeman finds a young person in possession of a few grammes of cannabis he may deal with the matter informally or offer a caution, and no official record will be made. In a country town possession of exactly the same quantity of the drug might lead to prosecution, a fine, and headlines in the local newspaper' ([66] Royal College of Psychiatrists 1987, p125).

As in Australia, drug law reform continues to be an issue in Europe. Some reforms to European drug laws have been foreshadowed. [67] Wodak (1993) reports that: the lead has come from municipal authorities. Thirteen cities in Europe have signed a document known as the Frankfort [sic] Declaration which commits these municipal authorities to a programme of drug policy reform. Thirty-three other cities have signed an expression of interest and are considering their position. In November, this Declaration will be signed by the Mayor of Baltimore in the United States (p7).

In Italy, voters were asked in a referendum held on 18 April 1993 whether drug users should be imprisoned. The referendum was the result of changes to drug laws in 1990 which enabled courts to imprison drug users found guilty of possession of more than the 'average daily dose' of a drug (dose media giornaliera) (UNICRI, pers comm). As a consequence of the referendum, such drug users are now liable only to administrative sanctions such as a fine or the confiscation of their driver's licence. Drug traffickers are still liable to imprisonment.

Current international treaties

The international treaties relating to cannabis are the Single Convention on Narcotic Drugs 1961 as amended by the 1972 Protocol, the Convention on Psychotropic Substances 1971 and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention). The Convention on Psychotropic Substances includes THC, the psychoactive constituent of cannabis. As THC is rarely extracted for illicit drug use ([68]Fox & Mathews 1992), no further attention will be devoted to it.

The Single Convention consolidated a number of previous Conventions on narcotic drugs and amalgamated a number of monitoring organisations to create the International Narcotics Control Board. Australia ratified the Single Convention on 1 December 1967. Cannabis is not a narcotic drug, but is classified as such for the purposes of the Single Convention.

This classification has been important in shaping public and political perceptions — that cannabis is dangerous to personal health and community safety. Narcotic drugs are listed in Schedules to the Convention. Schedule I contains the major opioids, as well as cocaine and cannabis. Schedules II and III contain less powerful drugs such as codeine. Schedule IV contains drugs regarded as having particularly dangerous properties. Cannabis, as well as drugs like heroin, is part of Schedule IV. Articles 36, 4 and 2(5) of the Single Convention are of particular importance for the purposes of this report. Article 36(1) of the Convention provides that, 'subject to its constitutional limitations', each Party shall adopt measures to ensure that activities such as manufacture, possession, distribution, sale, transport, importation and exportation of drugs 'contrary to the provisions of this Convention ... shall be punishable offences when committed intentionally ....'.

In addition, Article 4 provides that: (c) Subject to the provisions of this Convention, [Parties are] to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs. Cannabis is also located in Schedule IV of the Convention. Article 2(5) requires that: (a) A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and (b) A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials herewith to be conducted under or subject to the direct supervision of the Party.

It must be emphasised, however, that Article 2(5) is not mandatory. Rather, special measures of control can be imposed if, in the opinion of the Party, they are 'necessary' or 'appropriate'. Under the Single Convention Parties are required to criminalise activities relating to trafficking, subject to their constitutional limitations. In the past, however, questions have also arisen about the need for Parties to criminalise activities associated with personal use and possession. The Williams Royal Commission concluded that to remove prohibitions against cannabis would depart from the spirit and intention of the Convention. In Canada, the Le Dain Commission regarded possession for personal use as falling within the ambit of the Convention. Woltring (1990) also takes this view on the grounds that 'possession could relate to both possession for trafficking or possession for personal consumption' (p20).

However, there is authority (e.g. [69]United States 1972, [70] Noll 1977, [71] South Australia 1978) that 'the Convention does not require signatories to make either use or possession for personal use punishable offences, although the creation or retention of such offences would be consistent with the treaty. This is because "use" is not specifically covered by Article 26 and the term "possession" in that Article and elsewhere can be read as confined to possession for the purpose of dealing' ([72] South Australia 1978, p46).

Further, the requirement that Parties limit the use of drugs to medical and scientific purposes does not require them to 'attain that goal by providing penal sanctions for unauthorized "use" or "personal consumption" of drugs' ([73] Noll 1977, p44). In the view of the Shafer Commission, measures such as 'an educational program and similar approaches designed to discourage use' could be employed (1972, p167). While the International Narcotics Control Board appears to be equivocal about this interpretation of the Convention in respect of personal possession, it does not appear to condemn it, merely remarking in relation to the Single Convention, that Parties: may take the view that they are not required to establish such activities as criminal offences under law. The basis for this view appears to be that, since obligations relating to penal provisions appear among articles relating to illicit traffic, the obligations only apply to cultivation, purchase or possession for the purpose of illicit trafficking (1992, p6). The 1972 Protocol provides for measures to treat and rehabilitate drug users in addition, or as an alternative to, punishment.

It also contains provisions relating to the International Narcotics Control Board, and international narcotics trafficking. Australia ratified the Protocol on 22 November 1972. Australia's international treaty obligations must now be read taking the 1988 Vienna Convention into account. Australia ratified the Convention without reservations on 16 November 1992. While the Single Convention attempts to contain the supply of illicit drugs by limiting the use of scheduled drugs to medical and scientific purposes, the Vienna Convention is directed particularly at drug trafficking and is designed to provide a system of international cooperation to counter trafficking activities. It must be read subject to the Single Convention. The Vienna Convention was made against a background of international horse-trading, and was ratified domestically in the face of a measure of opposition.

An International Conference on Drug Abuse and Illicit Traffic in Narcotic Drugs and Psychotropic Substances was convened in 1987. At the Conference there was debate between the consumer, producer and transit states about the content of the treaty. Consumer nations felt that the Convention should target the movement of illicit drugs between states, while producer countries argued that the Convention needed to address drug consumption — in other words, create obligations for drug-using nations. As a result, provisions relating to domestic drug consumption are included in the Convention.

Nevertheless, the major thrust of the Convention is towards trafficking and international cooperation in matters such as extradition, mutual legal assistance, and transfer of proceedings. Paragraph 1 of Article 3 relating to trafficking offences states that 'Each Party shall adopt such measures as may be necessary to establish [them] as criminal offences under its domestic law, when committed intentionally'. Paragraph 2 of Article 3 deals with cultivation, possession or purchase for personal use.

In relation to the establishment of criminal offences its wording is different to and more qualified than that in paragraph 1. It states:

Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.

In addition, paragraph 4(d) of Article 3 provides that: The Parties may provide, either as an alternative to conviction or punishment, or in addition to conviction or punishment of an offence established in accordance with paragraph 2 of this article, measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender. Not surprisingly, there are a number of different interpretations that can be placed on the provisions of the Vienna Convention as they relate to personal consumption activities.

The International Narcotics Control Board states that the 1988 Vienna Convention requires criminal offences to be established in relation to possession, purchase or cultivation for personal use. However, it adds: None of the conventions requires a party to convict or punish drug abusers who commit such offences even when they have been established as punishable offences. The party may choose to deal with drug abusers through alternative non-penal measures involving treatment, education, after-care, rehabilitation or social reintegration ([74]International Narcotics Control Board 1992, p4).

Other commentators take the view that the Vienna Convention is a trafficking convention and that, with respect to personal use activities, a Party may choose not to retain or introduce criminal offences for those activities if such an approach does not accord with matters such as 'the basic concepts of its legal system'. What then are the implications of the Single Convention, the 1972 Protocol and the 1988 Vienna Convention for public policy options relating to cannabis?

Total Prohibition

Total prohibition is the policy pursued by many of the Parties to the Conventions — including the Australian jurisdictions of Queensland, Northern Territory, Victoria, Western Australia and Tasmania.

Some writers describe the Single Convention as prohibitionist in nature ([75] Fox & Mathews 1992); others as 'regulatory as opposed to merely prohibitionist' ([76] Woltring 1990, p19). Whatever the case, extremely stringent measures can be employed by the Parties. In both the Single Convention and the Vienna Convention provisions exist that enable the Parties to 'adopt more strict or severe measures than those provided for by the convention if, in [their] opinion, such measures are desirable or necessary to prevent or suppress illicit trafficking' ([77] International Narcotics Control Board 1992, p4). Civil penalty option. As described earlier, this policy option removes criminal penalties for personal use activities such as possession and instead imposes civil penalties — most commonly fines. Australia ratified the Vienna Convention after consultations with the States to ensure that legislation in all jurisdictions conformed with treaty obligations.

While some commentators ([78] Fox & Mathews 1992) argue that civil penalties such as those provided in the South Australian legislation represent a minor breach of international treaty obligations, this does not appear to be the view of the Commonwealth or of other commentators. There appear to be no international law impediments to the civil penalty approach.

Partial prohibition.

As described by the [79] Sackville Royal Commission (South Australia 1978), partial prohibition distinguishes between trafficking in cannabis and activities associated with personal use such as possession. Partial prohibition would remove all penalties, both civil and criminal, in respect of personal use and possession activities. These activities would no longer be criminal offences. The removal of offences and penalties for personal use and possession activities can be seen as inconsistent with the conventions. Such a conclusion might be reached on an interpretation of the Single Convention along the lines suggested by [80] Woltring (1990), and of the Vienna Convention.

It can also be argued that partial prohibition can be accommodated under the Conventions. The Sackville Royal Commission (1979, p311) took this view in regard to the Single Convention — on the basis that the Convention did not encompass personal use and possession activities. Partial prohibition could be reconciled with the Vienna Convention on the basis of two interpretations. For those who take the view that the Vienna Convention is a trafficking convention and that there is no requirement that personal use and possession activities be criminalised, there is no obstacle to partial prohibition. It could also be argued that partial prohibition could encompass an option where a criminal offence existed for personal use and possession activities, but no criminal or civil penalties were provided. The existence of a criminal offence would be a signal of society's disapproval of cannabis use. Treatment, education, rehabilitation or social reintegration could be provided instead of criminal or civil penalties, it being up to State Parties to determine whether these measures are provided administratively or by statute.

Regulatory option

Regulatory options might include regulated commercial sale or a government monopoly. In 1979 the Sackville Royal Commission took the view that regulation could not be accommodated under the Single Convention (p311). The advent of the AIDS epidemic and concern about injecting drug use and disease transmission may have contributed to recent interpretations of treaty obligations that differ from this view. [81] Woltring (1990) states that it is open to Parties, within the context of 'medical or scientific purpose', to:

  • provide for the cultivation of cannabis by a government agency;

  • provide for the manufacture of cannabis by a government agency or private concern under government licence;

  • trade in and distribute cannabis through a government agency or private enterprise under government licence;

  • 'supply or dispense drugs to drug abusers or AIDS/Hepatitis B risk users under appropriate programs' (p20).

He goes on to remark that 'While any Party could adopt such options on the basis that they serve the medical or therapeutic objective of treating drug addiction or abuse, the options could not be adopted if their ultimate purpose was to enable recreational use as distinct from medical or therapeutic use' (p20).

Under [82] Woltring's model, regulation could co-exist with treaty obligations, but only to a limited extent — within a medical model. Supply or dispensation of drugs to drug users for medical purposes is considerably easier to reconcile with treaty obligations in the context of injecting drug use than in relation to cannabis. It might be argued that high THC content of illicit cannabis represented a health risk to users 3, that could be overcome through regulated supply, or that separation of drug markets would make it less likely that cannabis users would be exposed to and thus move on to more dangerous drug use involving injecting drugs. However, these propositions would be unlikely to convince most governments or commentators.

Free availability.

This policy option could not be accommodated under the Conventions and would place Australia in breach of its treaty obligations. This discussion of international instruments suggests that Australia has some flexibility in considering and implementing policy options in the context of treaty obligations. However, for some options it might be thought necessary to seek amendments to the Conventions or, indeed, denounce them.

An important question to be answered is whether Australian drug laws, so long dominated and directed by influences beyond our shores, and so little attuned to Australia's own circumstances, should continue to be determined externally. As cautious an inquiry as the Williams Royal Commission commented, in relation to the Single Convention, that the spirit and intention of the treaty was 'a secondary matter in the sense that Australia must first decide what is the correct domestic policy and then shape its international course accordingly' (1980, pC263).

References

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Australia. Parliamentary Joint Committee on the National Crime Authority 1989, Drugs, Crime and Society, AGPS, Canberra. Australia.

Senate Select Committee on Drug Trafficking and Drug Abuse 1971, Report, Commonwealth Government Printing Office, Canberra. Australia.

Senate Standing Committee on Social Welfare 1977, Drug Problems in Australia — An Intoxicated Society?, AGPS, Canberra. Australian Capital Territory.

Legislative Assembly Select Committee on HIV, Illegal Drugs and Prostitution 1991, Marijuana and Other Illegal Drugs, Canberra.

Australian Royal Commission of Inquiry into Drugs 1980 Report, Book C, AGPS, Canberra.

Canada. Commission of Inquiry into the Non-Medical Use of Drugs 1972, Cannabis, Information Canada, Ottawa.

Carney, T. 1981, 'The history of Australian drug laws: Commercialism to confusion?', Monash University Law Review, vol. 7, June, pp165-204.

Caswell, A. 1992, 'Marijuana as medicine', Medical Journal of Australia, vol. 156, April 6, pp497-498.

Fortson, R. 1992, The Law on the Misuse of Drugs and Drug Trafficking Offences, 2nd edn, Sweet & Maxwell, London.

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