Research Paper 6 2001-2002

Reforming the Old and Refining the New: A Critical Overview of Australian Approaches to Cannabis

Maurice Rickard
Social Policy Group
10 October 2001

Contents

Major Issues

Cannabis is by far the most widely used illicit drug in Australia. It is used by all ages, but most particularly by Australian youth. The most recent data show that usage among young people continues to grow, and sometimes in ways that might be cause for concern. Although cannabis use is not as harmful (in terms of individual health and public health costs) as tobacco or alcohol abuse, it is not as innocuous as many would portray it. There is emerging evidence of the role of cannabis in the development of dependence syndromes. And attention is focusing increasingly on the nature of its relationship to mental illness. There are also legitimate concerns about its role in the development of more harmful illicit drug use.

Different Australian states and territories adopt different legislative approaches to cannabis. In some jurisdictions all cannabis possession, use and supply is criminally prohibited (Victoria, New South Wales, Tasmania, Queensland, and Western Australia), while in others, only civil penalties apply for some minor offences (South Australia, Northern Territory and the Australian Capital Territory). With the former, all cannabis related activities are prohibited in law, and counted as criminal activities. In line with their criminality they can attract serious penalties (such as major fines, or incarceration, or the equivalent). With the latter, cannabis related activities are still prohibited by law (i.e. are illegal), but some are not considered criminal offences. Less serious 'civil' penalties are applied to minor offences such as possession or cultivation for personal use. Rather than the possibility of a criminal conviction, minor fines or other forms of expiation apply (i.e. ways of discharging an obligation or penalty, which can include payment of fines, but also community work, for instance). A civil penalty system applies in the case of minor traffic infringements.

Although drug related legislation has traditionally been a matter for the states and territories, it is still of considerable significance to the Commonwealth. The Federal Government has responsibility for allocating funding to the states in a number of relevant areas, including health care. Mental health, in particular, has been among its key priorities for a number of years. As well as this, there is some Commonwealth legislation that is relevant to cannabis (e.g. laws penalising the importation of cannabis),⁽¹⁾ and arguments about preferred legislative approaches at state and territory level may have relevance to those Commonwealth laws. The situation is similar with Australia's participation in international treaties which govern drug use. Perhaps most important, is the issue of whether state and territory approaches are consistent with long-standing national policies on drug matters. Since 1985, Australia has had a policy of harm minimisation in relation to drug use, both licit and illicit. Officially, it still is the policy.

The current paper presents the most recent information about cannabis use and supply in Australia, as well as the nature of the potential harms associated with cannabis. The paper takes into account not only the harms and social/economic costs associated with cannabis use, but also those associated with the acquisition and legislative control of cannabis. The paper examines the short-term physical and psychological effects of cannabis use, as well as longer term potential health risks, such as the possible connection with mental illness, the development of cannabis dependence, and the hypothesis that cannabis is a gateway to other more dangerous forms of drug use. The social, personal and economic costs associated with different systems of cannabis legislation are also considered-factors such as the personal impacts of a criminal conviction, the economic costs of processing cannabis offenders through the criminal justice system, and the potential dangers associated with the different ways of acquiring cannabis, particularly exposure to the criminalised cannabis blackmarket.

In the context of this and related information, the paper compares the capacities of the two Australian approaches to reduce cannabis related harm (as per national policy). That comparison is conducted critically and systematically, in terms of how strongly they each reflect the key characteristics of harm minimisation.

Very often a commitment to harm minimisation is expressed without being fully explicit about what that means. A central undertaking of this paper is to articulate the core properties of harm minimisation-what it requires of policy and legislation-and to apply these as criteria for comparing the relative capacity of the two existing Australian approaches to reduce harm. The approaches will be compared in terms of:

• how accurately their legislative aims and objectives target harm
• how comprehensively they apply processes of law enforcement and administration to target harm
• how proportionate the penalties they impose are in relation to the harm of the activity they penalise
• how effective they actually are in reducing harmful or high risk use, acquisition and supply, and
• what other costs and harms they generate in seeking to reduce cannabis related harms (in terms of resourcing and unintended side effects and outcomes).

The importance of having a unified and consistent approach to cannabis (and other harmful drugs) across Australian jurisdictions is also noted.

There is, in particular, one factor whose importance echoes throughout the comparison. There is no legislative approach to cannabis (or drug use in general) that does not, itself, generate costs and harms of its own. Some of the more serious harms that attend illicit drug use in Australia, and throughout the world, are a consequence of the very legislative approaches that are designed to deal with drug use. These approach-generated harms need to be fully recognised and solidly factored into the harm minimisation equation. A key message emerging from the paper is that the choice between legislative approaches to cannabis will always be a compromise that involves enduring some harms and costs for the sake of reducing other more significant ones. With this in mind, the paper probes a little deeper toward its end, and briefly examines the status of nonprohibitionism with respect to harm minimisation.

The purpose of the paper is twofold: to provide a single source for the most recent data and research in this area, but also to put that data and research to work by treating it as evidence that is relevant to choosing one way or another between approaches to cannabis. With complex social-legal questions such as these the devil is often in the detail, and the arguments will inevitably be data driven ones. Despite the complexity from time to time, some key findings and conclusions emerge throughout the paper, including:

• Over one-third of all Australians, and 40 per cent of teenagers have used cannabis, and it is being used more regularly by teenagers. However, cannabis use tends to decline beyond young adulthood, suggesting that among young people it is mostly experimental and transitional, with relatively few becoming ongoing regular users. Adolescents are using cannabis at an earlier age, and early initiation has been associated with increased risk of dependence. The highest rate of cannabis offences (mostly for consumption) are concentrated in the 15-19 year age group, and many offences result in a criminal conviction.
• The significant health related risks and harms connected with cannabis use are associated with heavy and sustained use. There are identifiable groups of people who are more at risk of heavy or sustained use or the harms resulting from it. These include people who start cannabis use early in adolescence, and those who are vulnerable to psychosis.
• Cannabis use that is not heavy and sustained (but which is occasional and recreational) generally does not involve the same significant risk of health related harm (except for particular contexts such as operating vehicles or machinery).
• The Commonwealth National Illicit Drug Strategy has, for a number of years, provided policy direction in relation to cannabis and other drugs, as well as extensive funding for research and program development. While there is no ongoing Commonwealth funding specifically tagged for cannabis related issues, many of the programs funded through the national drug strategy will have application to, or impact on, those issues (e.g. funding of general drug treatment programs). The peak government advisory body, the Australian National Council on Drugs, also provides policy advice to the Federal Government. The most recent initiative sponsored by the Commonwealth to have impact on state approaches to cannabis, is its funding for the development of the 'Tough on Drugs' drug diversion programs in the states and territories. In the case of some jurisdictions (e.g. Qld), this funding has contributed to the initiation of cannabis cautioning schemes.
• There is widespread use of cannabis in most countries, including the European Union, the United States and Canada. There are varied approaches to cannabis legislation in these overseas jurisdictions. At the federal level, the United States criminally prohibits all cannabis related activity, though a number of states have adopted a civil penalty approach in the past. Canada also criminally prohibits cannabis related activities. There is more diversity of approach, however, in the European Union. The Netherlands has for some time not penalised possession or use of small amounts of cannabis, and makes provision for the state regulated availability of cannabis in 'coffee shops'. Spain and Italy have also for some time had a civil approach to cannabis (and other drug use). Recently, some other EU countries (Belgium, Portugal and some German states) are liberalising their approaches by adopting civil or no penalties for minor cannabis offences. Switzerland has also very recently opted for state controlled management of the cultivation and distribution of cannabis for the personal use of its adult citizens.
• Australian legislative approaches involving civil penalties have a greater capacity to minimise cannabis related harms than approaches employing criminal penalties. The former are more sensitive in their targeting of cannabis harms, more effective in achieving their aims, more efficient in their use of resources and the harms and costs they produce, and more proportionate in the penalties they impose.
• The civil penalty systems in Australia do not act to increase cannabis use more than the criminal prohibitionist systems.
• The civil and criminal prohibitionist systems in Australia are similar in their capacity to deter or reduce cannabis use.
• The operation of civil penalty systems in Australia cost considerably less than the operation of criminal prohibitionist systems.
• Because the civil systems in Australia do not apply criminal penalties to low-level cultivation (unlike the criminal prohibitionist approaches), it involves less risk of cannabis users being exposed to more dangerous drugs through the organised criminal cannabis black market.
• Despite the civil approaches being preferable, some of them have been shown to have shortcomings. Nevertheless, these can be readily addressed in order to maximise the capacity of those approaches to reduce harm.

Civil and criminal penalty based approaches to cannabis are both alike in being totally prohibitionist. Arguably, total prohibitionism will still leave in place a significant range of potential harms-most notably connected with the organised cannabis black market. There are some preliminary reasons for considering the possibility of nonprohibitionist approaches to cannabis as alternatives.

Introduction

The undertaking of this paper is to present a comparative overview of the legislative approaches in Australian state and territory jurisdictions to cannabis use and supply. It is true that laws and legal approaches do not exhaust all of the state sponsored responses to drug use and supply. In fact, it could be argued that some of the most enduring impacts on problems of drug use are attributable to the operation of drug programs, policies and community based initiatives. Notwithstanding this, the focus here will remain fixed on legislation for the important reason that legislation determines and limits what sorts of drug policies, programs and initiatives the community can ultimately pursue.

No sound overview of the impacts of drug legislation can proceed without all of the relevant available data at hand. The paper therefore begins with a survey of the most recent data on patterns of cannabis use and supply in Australia. Against this background, a brief description is supplied of the existing Australian legislative responses (A more extensive description is provided as Appendix 1. Also, a description of the approaches to cannabis taken overseas in the European Union and in North America is supplied in Appendix 2). Given that the task of the paper is a critical comparison, attention then turns to the issue of how different legislative approaches are to be compared and judged. Arguments are presented in defence of harm minimisation as the primary goal of drug policy, and consequently as the primary measuring stick for legislative success. Following on this, is an extensive survey of the most recent research and views on the nature of the potential harms that harm minimising cannabis legislation should address. These include potential health related harms from cannabis use, harms that may attend different modes of acquiring cannabis, and importantly, the sorts of harms and costs that may be brought about by legislation governing cannabis use and supply. Along the way, an attempt is made to give some sense of how serious and how likely such harms might be, as well as any potential benefits of cannabis.

The choice between legislative approaches will turn ultimately on how well the various harms and risks are reduced, or more precisely, the capacities that the different legislative approaches have to reduce them. Determining what these capacities are, and exactly what the successes and failures of an approach might be due to, is inevitably a difficult and detailed thing. In order to facilitate and organise this assessment, the paper identifies a number of key hallmarks of harm minimisation to act as criteria or dimensions for evaluating particular facets of different legislative approaches.

All of the relevant available evidence and data about the operation of Australian approaches (and from time to time, overseas approaches) is brought to bear to determine how well they meet each criteria. The project of comparison is continued just a little more at the end, where some observations are made about prohibitionism compared to nonprohibitionist alternatives.

Cannabis in the Australian Context

Patterns of Cannabis Use

Cannabis is the most commonly used illicit drug in Australia. The following dotpoints provide a summary of recent characteristics of its use and its users.

Prevalence

• It has been estimated that, in 1998, 39 per cent of the Australian population over 14 years of age had used cannabis at some point in their lifetime, and nearly a fifth of them (2.7 million people) had used it in the preceding 12 months.⁽²⁾
• Cannabis is also the most increasingly used illicit drug in Australia in recent years, with an eight per cent increase between 1995 and 1998 in the proportion of people over 14 years of age who have used cannabis at least once (compared to a three per cent increase for amphetamines or tranquillisers, and nearly one per cent for heroin or cocaine).⁽³⁾

Young People

• Although a significant proportion of older adults have used cannabis (39 per cent of 30-59 year olds in 1998, an increase of over 10 per cent since 1995 of 30-59 year olds who have used cannabis), cannabis users are mainly young people, with nearly 60 per cent of all those who used cannabis at least once in 1998 being 14-29 year olds.⁽⁴⁾ It is also estimated that, in 1998, four in every 10 teenagers (14-19) had used cannabis.⁽⁵⁾
• The use of cannabis by young people has increased significantly, as well, with the proportion of 14-24 year olds who used cannabis within the preceding year increasing by 36 per cent in the ten years between 1988 and 1998.⁽⁶⁾
• Not only are cannabis users more likely to be young people, young people are more likely to use cannabis than any other illicit drug (being used by 38 per cent of 14-24 year old illicit drug users in 1998, compared to 16 per cent in that group who used ecstasy or amphetamines, and just over three per cent who used cocaine or heroin).⁽⁷⁾
• Results of a 1993 national household survey indicate that 96 per cent of cannabis users did not go on to try other illicit drugs.⁽⁸⁾

Regularity of Use

• There is some evidence to suggest an increase in the regularity with which teenagers (14-19 years) use cannabis. In 1995, 33 per cent of adolescent cannabis users used cannabis at least once a week (six per cent more than in 1988), and 41 per cent used it once or several times a month (14 per cent more than in 1988).⁽⁹⁾ This contrasts with the regularity of cannabis use considered overall (for all age groups together) for the same period, with a decline of six per cent in those using at least once a week.⁽¹⁰⁾
• Data from the 1996 Australian School Students Alcohol and Drug Survey indicated that 36.4 per cent of surveyed 12 to 17 year olds reported using cannabis at least once in the previous week, with four per cent of males reporting cannabis use on at least six occasions in that week.
• There is some recent evidence that an estimated 12 per cent of adolescents who have used cannabis in their middle school years go on to daily (and potentially harmful and dependent) cannabis use in their late school years/late teens.⁽¹¹⁾
• Despite the increase in regular use among teenagers, cannabis use tends to decline beyond young adulthood. While 77 per cent of teenagers in 1998 who had ever used cannabis had used it within the preceding twelve months, only 57 per cent of 20-29 year olds who had ever used cannabis used it recently, and 35 per cent of 30-39 year olds.⁽¹²⁾ This suggests that cannabis use among young people is mostly experimental and transitional, with few becoming ongoing regular users. For those who do continue their use into middle age, however, frequency of use appears to decline for women, but increase for men.⁽¹³⁾
• There is a high rate of heavy cannabis use among young adults with psychosis (a third being daily users)⁽¹⁴⁾ and among adolescents involved in the criminal justice system.⁽¹⁵⁾ Psychosis is a class of conditions typified by a distorted perception of reality.

Age of starting

• There is evidence that teenagers are increasingly coming to start cannabis use at an earlier age. It is estimated that in 1993, 14 per cent of people surveyed indicated that they first used cannabis at 15 years old or less, and this increased to 18 per cent in 1995.⁽¹⁶⁾
• It has also been noted that people who have used cannabis recently, and use it frequently, are more likely to have started cannabis use earlier.⁽¹⁷⁾
• Recent research⁽¹⁸⁾ has found that among sentenced property offenders, the average beginning age for regular use of cannabis was 14.7 years, compared to 18.4 years for use in the community as a whole (acording to results from the 1998 National Drug Strategy Household Survey). There is a suggested association between criminal involvement and early initiation of cannabis use and regular use. (It is not clear whether this association is a causal one, however.)⁽¹⁹⁾

Rural/Metropolitan

• In 1998, 49.6 per cent of people in Australian metropolitan areas had ever used cannabis, compared to 40.8 per cent for regional areas. Between 1988 and 1998, the rate of growth in the number of people who had ever used cannabis was greater in metropolitan areas, with a 5.85 per cent average increase in metropolitan users per annum, compared to a 3.9 per cent average increase in regional users per annum.⁽²⁰⁾

Cannabis Supply and Distribution

The most recent data from the Australian Bureau of Criminal Intelligence (ABCI)⁽²¹⁾ indicates that cannabis continues to be readily available Australia wide, and that the domestic production and supply of cannabis was a large-scale industry in Australia. The following dotpoints summarise some of the key characteristics of cannabis supply and distribution in Australia.

• It is estimated that in 1998, over half (51 per cent) of all 14-24 year olds had the opportunity to use cannabis (i.e. it was offered to them or otherwise available to them though they may not have used it), and had greater opportunity to use it than any other illicit drug.⁽²²⁾ The high rates of cannabis use noted above also reflect its high level of availability.
• It has been estimated that Australian cannabis users spend over $7 billion a year on cannabis, double the per capita annual spending on wine.⁽²³⁾
• The ABCI reports that there is a continuing trend in the demand for, and production, of the more tetra-hydro-cannabinol (THC) potent hydroponically grown cannabis.^(24),(25) There has been an associated decrease in outdoor cultivation.
• Hydroponically grown cannabis is not only favoured by users for its potency, it is favoured by cultivators because of the potential for year round yields, and more easily managed crops. The greater potential for concealment and varied location is also a major incentive, with private residences often being rented or owned solely for the purpose of hydroponic growing. Information on hydroponic growing, as well as necessary equipment, is also easy to obtain.
• Theft of electricity is often involved in hydroponic growing, and state governments are beginning to cooperate with electricity suppliers to identify such thefts.
• Many crops are still grown outdoors, however, and Queensland police indicate that highly organised groups with sophisticated business practices are becoming increasingly involved in large-scale outdoor cultivation.
• There is evidence that legitimate businesses are used to disguise cannabis cultivation and distribution, and that organised groups such as outlaw motorcycle gangs are heavily involved in the supply of cannabis.
• The use of booby traps and armed guards to protect outdoor crops is also reported by the ABCI as common. As well as this, there is evidence that some groups were recruiting people for specific tasks such as crop sitting.
• Cannabis is also distributed in Australia through a variety of means including mail, cars, trucks and aeroplanes.
• The ABCI reports that South Australia is the source of large quantities of cannabis for other jurisdictions, and it is often distributed through long haul transport.
• Given the widespread use of cannabis, and the fact that it is illegal in all Australian jurisdictions, cannabis offence rates are very high (accounting for 67 per cent of all drug related offences in Australia in 1999-2000).
• Cannabis offences are mostly concentrated in the 15-29 age group (with the highest rate being among 15-19 year olds).⁽²⁶⁾ The offences are predominantly for consumption, rather than supply of cannabis, and although few result in custodial sentences, a great many result in criminal convictions. Offences, however, have declined from 80 000 Australia wide in 1995-96 to 56 000 in 1999-2000.
• In 1995, it was estimated that 13 per cent of all criminal justice and police resources were devoted to detecting and processing cannabis offences.⁽²⁷⁾
• The rate at which civil infringement notices are issued is comparatively high in the three Australian jurisdictions that have adopted a system of civil penalties. However, the rate of issue has declined in the ACT and South Australia between 1995-96 and 1999-2000, while it has doubled in the Northern Territory.

The Legislative Response to Cannabis in Australia

The Possible Legislative Approaches to Cannabis

There are a number of possible legislative approaches to cannabis. According to a widely cited taxonomy developed by David McDonald et al.,⁽²⁸⁾ most of the possible approaches are versions of prohibitionism, where cannabis related activities (possession, use and supply) are legislatively prohibited, and are thereby made illegal.

• Prohibitionism with criminal penalties⁽²⁹⁾ counts cannabis related activities as criminal activities, and in line with their criminality they can attract serious penalties (such as major fines, or incarceration).
• Prohibitionism with civil penalties still treats cannabis related activities as prohibited by law (illegal), but applies less serious 'civil' penalties such as minor fines or other forms of expiation (i.e. ways of discharging an obligation or penalty, which can include payment of fines, but also community work, for instance).
• A system based on nominal prohibitionism (or what McDonald et al. call legislative prohibitionism with an expediency principle) treats cannabis related activities as prohibited in law, but in practice the law is not enforced, pursued, or administered when it comes to certain of those nominally prohibited offences. (In the Netherlands and Denmark, where nominal prohibitionism applies, these are possession and use and sometimes sale of small quantities.)
• A partial prohibitionist approach would legislatively prohibit some cannabis related activities (for instance, the cultivation/supply of commercial quantities), but allow others (like personal use, and cultivation/supply of small quantities) without penalty.
• A system of regulated availability (which is arguably a form of partial prohibitionism) would involve state control over, or regulation of, the production and availability of cannabis. Personal use within those regulations would not be prohibited. This is the system that currently applies in the case of tobacco, alcohol and licit drugs in Australia.
• Finally, there is the possibility of a totally nonprohibitionist system of free or unregulated availability, where no legislative restrictions or penalties are applied to any cannabis related activity. In this case, the possession, use, cultivation and supply of cannabis would be treated as purely within the domain of personal freedom.

The Australian States and Territories

Traditionally, it has been a matter for each Australian state and territory to determine its own approach to cannabis related activities, and there are differing approaches in all of them as a result.⁽³⁰⁾ In all jurisdictions the penalties imposed for possession of cannabis will depend on the amount possessed. Legislation in Australian states and territories often makes a distinction between possession of small amounts (for personal use), possession of large amounts sufficient to create a presumption that the cannabis is intended for selling (trafficable quantities), and sometimes possession of even larger 'commercially trafficable' quantities. All Australian jurisdictions prohibit (with criminal penalties) the supplying of cannabis, or the possession of large (trafficable) quantities.

Australian jurisdictions differ, however, in the legislative approaches they take to the possession and use (and cultivation) of small amounts of cannabis (presumptively for personal use). The approaches are of two kinds-prohibitionism with criminal penalties (Tas., Vic., NSW, WA, Qld) and prohibitionism with civil penalties (SA, ACT, NT). Both approaches are prohibitionist in that they legislatively prohibit cannabis possession and supply for personal use (they are illegal), and count them as offences that ought to be penalised. But each jurisdiction prohibits these offences with different degrees of coercive strength, reflected in the different types of penalty they apply. While the former predominantly imposes potentially serious criminal penalties, the latter mostly imposes less serious 'civil' penalties such as minor fines or similar forms of expiation.

In the civil prohibitionist jurisdictions, the offences attracting a civil infringement notice include

• possession of small amounts of cannabis plant (up to 100g in SA, 25g in the ACT, and 50g in NT), and
• cultivation of cannabis plants (up to three in SA, five in the ACT, and two in NT)

Failure to pay the fines may result in court appearances and subsequent conviction.

The criminal prohibitionist jurisdictions have also recently adopted 'diversionary' cautioning procedures which allow first or second time cannabis possession/use offenders to receive a caution or education/counselling session instead of the normal court appearance.⁽³¹⁾ (A more detailed description of the legislative approaches in Australian jurisdictions is supplied in Appendix 1. A snapshot of some overseas approaches is also supplied as Appendix 2.)

The Role and Activities of the Commonwealth

While legislative responses to cannabis are primarily a state responsibility, the Commonwealth still plays some role in this area. The Commonwealth National Drug Strategy has, for a number of years, provided policy direction in relation to cannabis and other drugs, as well as extensive funding for research and program development.⁽³²⁾ While there is no ongoing funding specifically tagged for cannabis related issues, many of the programs funded through the National Drug Strategy will have application to, or impact on, those issues (e.g. funding of general drug treatment programs). The peak government advisory body, the Australian National Council on Drugs, also provides policy advice to the government.

The most recent initiative sponsored by the Commonwealth to have impact on state legislative approaches to cannabis, is its funding for the development of the 'Tough on Drugs' drug diversion programs in the states and territories. In the case of some jurisdictions (e.g. Qld), this funding has contributed to the initiation of cannabis cautioning schemes.

Assessing Alternative Approaches to Cannabis: Clarifying Goals and Criteria

The Primary Purpose of Drug Policy and Legislation

Which legislative approach to cannabis is the best or most successful? In answering this question, it is essential to clarify what the primary or underlying goal(s) of cannabis legislation should be, and what criteria are central to deciding how well a legislative approach meets those goals.

There are currently two major views about the fundamental goals of cannabis policy or legislation.⁽³³⁾ The views are related, but differ importantly. The first view holds that the aim of cannabis (and all drug) policy and legislation is to reduce or minimise the use of cannabis. With this view, the more that some legislative approach reduces the overall usage of cannabis, the more successful it is, or the more preferred it will be to another approach that reduces its use less. The second, and increasingly favoured, view is that cannabis legislation is successful when it reduces or minimises the overall harms associated with cannabis, (even when this does not necessarily result in a reduction in cannabis use). The more cannabis related harm that is reduced by a legislative approach, the better it will be on this view. Harm reduction does not completely ignore the question of cannabis use. It targets harmful or risky cannabis use, and seeks to reduce this, and the harms arising from it.

Harm reduction has been Australia's official policy toward drug use since 1985. There are good reasons to favour it over use reduction as the truly basic goal of cannabis legislation and policy. Clearly, when deciding whether drug use is a good or bad thing, it is the harms associated with drug use, rather than the mere use itself, that seem to be the important consideration. Drug use, if it is problematic or objectionable, seems to be so because of its consequences-the harms it produces or has the capacity to produce. If drug use had no harmful consequences at all, the use of drugs would not be a concern. This strongly suggests that if reducing drug use is desirable, it is only desirable in a secondary and dependent sense, because it sometimes serves the more fundamental goal of reducing harm.⁽³⁴⁾

If the primary goal of sound cannabis legislation is to reduce cannabis related harm, then a system of legislation that reduces these harms to a greater degree will be preferable to ones that reduce them to a lesser degree (or not at all). This principle of harm minimisation will be taken here as the ultimate desiderata when comparing the success of differing approaches to cannabis. In order for such a comparison to be accurate, it will need to take into account the full and comprehensive array of harms associated with cannabis, including the harms and social costs that are inevitably involved in controlling or regulating cannabis. No approach to cannabis control or regulation will be completely harm free or cost free. Different systems will involve different degrees of intrinsic cost (e.g. time and resources in administering and enforcing the regime) as well as differing possible harmful or costly consequences or side effects. In a sense, a harm minimisation principle will require alternative forms of cannabis legislation to be assessed on a cost-benefit basis. This process of assessment requires a clear picture of what the potential harms, costs and benefits are in the equation, and the following few sections give an indication of these.

Potential Harms, Costs and Health Benefits of Cannabis

Like any other mind-altering drug, cannabis use involves potential harms, costs and benefits. Just what these harms, costs and benefits are, and the degree to which they are so, will depend very much on the context and circumstances surrounding the cannabis use. This will include factors such as who is using the cannabis and how frequently, how the cannabis was acquired, and also what the legal consequences are of using it. In view of all this, the following will outline cannabis related harms and benefits under the headings of cannabis use, cannabis supply and cannabis control.

Harms of Cannabis Use

Physical and Cognitive/Psychological Harms

There are physical and cognitive/psychological consequences of cannabis use that can occur immediately after use (acute effects), or as a result of long-term use (chronic effects).

The immediate effects, which generally do not persist after intoxication,⁽³⁵⁾ can include:

• Short-term impairment of psychomotor coordination and reaction time. The degree to which these effects are harmful will depend on context. In themselves they may merely count as an inconvenience, but when driving or operating dangerous machinery, they may carry the strong risk of very serious harm (especially in conjunction with alcohol, seeing that the effects are additive in conjunction with other nervous system depressants).
• Short-term deterioration of attention and memory.⁽³⁶⁾ These effects manifest in performing complex tasks requiring divided attention (such as driving and operating machinery).
• Distorted temporal and spatial perception. Time is perceived as going faster than actual clock time, and perceptions of distance and depth are affected.⁽³⁷⁾
• Mood changes. (These are dose dependent) feelings of panic, anxiety and mild paranoia, particularly with novice users.⁽³⁸⁾
• Increased risk of experiencing psychotic symptoms (while intoxicated) among vulnerable individuals.⁽³⁹⁾ Short-lived symptoms include the likes of hearing voices, having unwarranted feelings of persecution, feelings of depersonalisation.⁽⁴⁰⁾

The potential physical and cognitive/psychological effects of long-term regular cannabis use are not just experienced while intoxicated, but can persist as risks or conditions after long-term use. These effects can include:

• Susceptibility to respiratory disorders and cancers. These include chronic bronchitis and emphysema, and an increased chance of cancer of the mouth, oesophagus, and certain forms of pharyngeal cancer.⁽⁴¹⁾ The tar from a cannabis cigarette contains all the constituents of tobacco smoke (with the exception of nicotine).⁽⁴²⁾
• Subtle cognitive impairment. This includes impairment of memory, attention, and capacities to organise and integrate complex information.⁽⁴³⁾ The longer cannabis has been used, the more pronounced the impairment. These impairments are low-level and it is not clear as to the extent to which they affect normal daily functioning, or whether the impairments would desist after an extended period of abstinence.⁽⁴⁴⁾
• Possible risk factor for mental illness. It was noted above that people can experience (short-lived) psychotic symptoms while intoxicated from cannabis. It has also been hypothesised that cannabis use may be linked with the onset or exacerbation of an ongoing psychotic syndrome or condition in vulnerable individuals. Though there is some evidence to support this, the relationship between cannabis use and chronic psychotic disorders is complex and subject to qualification and ongoing theoretical debate.⁽⁴⁵⁾

• that heavy cannabis use may cause a specific 'cannabis psychosis', a psychosis which would not have occurred except through cannabis use, and which will remit when cannabis use ceases
• that heavy cannabis use is one among a number of possible factors (like genetic disposition), that can bring about an episode or condition of schizophrenia, which may or may not persist after abstaining from regular or ongoing use, and
• that cannabis use can worsen or exacerbate symptoms in those who have a schizophrenic disorder.

• Immunity and Reproductive effects. There have been suggestions in the literature that chronic cannabis use can affect immunity and decrease resistance to infection.⁽⁵⁵⁾ The evidence for this, however, is inconclusive, and based on studies of the effects of very large doses of THC on animals. The situation is similar with studies indicating that THC can have reduce fertility.⁽⁵⁶⁾ The evidence that cannabis use in human pregnancy can decrease birth weight, is slightly stronger.⁽⁵⁷⁾ There is also evidence that being exposed in utero to cannabis results in deficits in attention, memory and higher cognitive functioning during infancy and early years.⁽⁵⁸⁾ It should be noted that the effects of cannabis are small compared to those of maternal tobacco use.⁽⁵⁹⁾
• Development of Cannabis Dependence Syndrome. There is emerging evidence that some users can become dependent on cannabis in the sense that they are unable to reduce or adjust their use even when they recognise it as having undesirable impacts on their lives. The distinctive harm associated with dependence (above and beyond the other potential harms mentioned here) is the fact that one's use comes to interfere with the enjoyment of opportunities, or the undertaking of responsibilities. It is not entirely clear whether cannabis dependence is psychological, or one which has a pharmacological basis (or a combination of both). However, there is some evidence of 'withdrawal' symptoms associated with abrupt cessation of heavy cannabis use,⁽⁶⁰⁾ and also evidence that the active chemical agents in cannabis act on the same neurological reward systems as alcohol, cocaine and opioids.⁽⁶¹⁾ It has been estimated that, in the USA, one in ten of those who ever use cannabis exhibit symptoms of dependence at some time in their four or five years of heaviest use. (This is a similar rate for alcohol dependence, but less than for nicotine or opiate dependence).⁽⁶²⁾ In Australia, an estimated two per cent of adults exhibited symptoms of cannabis dependence in 1998.⁽⁶³⁾ Those who use cannabis daily over periods of weeks to months are most at risk.⁽⁶⁴⁾
• 'Amotivational Syndrome'. It is sometimes thought that heavy cannabis use can result in lethargy, an unwillingness to work, a general loss of interest and a desire to 'opt out '.⁽⁶⁵⁾ The empirical evidence for what has been called an amotivational syndrome has largely come from uncontrolled studies of long-term cannabis users in various cultures, and it is not clear what credibility they have.⁽⁶⁶⁾ It is true that a proportion of cannabis users are unemployed (in 1995, 23 per cent of Australians recently using cannabis).⁽⁶⁷⁾ However, these 'amotivational' symptoms may be nothing more than mere manifestations of being intoxicated, or else a reflection of the fact that frequent cannabis use can itself be a concomitant of unemployment, or a pre-existing dissatisfaction with one's life or social circumstances.
• Effects on school performance. Similar things can be said of the observed association⁽⁶⁸⁾ between heavy cannabis use during adolescence and early exit from secondary schooling and job instability in young adulthood. When this association is examined more closely, it turns out that young heavy cannabis users had poor school performance compared to their peers before they used cannabis.⁽⁶⁹⁾ There have been some studies, however, that do show an association between early cannabis use and the likes of unplanned parenthood, unemployment, and leaving home early.⁽⁷⁰⁾ It should be recognised, nevertheless, that there may be no simple cause and effect relationship between early heavy cannabis use and these behaviours.⁽⁷¹⁾ It is also important to recognise in this context that many adolescents who merely experiment with cannabis still do well at school.⁽⁷²⁾
• A Gateway Effect. It is commonly believed that cannabis is a 'gateway' drug in the sense that it leads to the use of more harmful illicit drugs like heroin, cocaine and amphetamines. The belief that cannabis use leads to harder drugs has its source in the observation that nearly all those who use harder drugs have used cannabis first.⁽⁷³⁾ However, while the evidence of a correlation is strong, it is generally agreed that the 'causal gateway' interpretation of the evidence is faulty. Such an interpretation is falsified by the fact that even though the great majority of harder drug users used cannabis first, the great majority of cannabis users⁽⁷⁴⁾ do not go on to use harder illicit drugs.⁽⁷⁵⁾ A causal relationship would suggest that (at least) most of those who use cannabis would go on to use other illicits.

1. heavy cannabis users and users of hard drugs sharing underlying characteristics (e.g. rebelliousness, stimulus seeking, poor economic prospects, etc.); and/or
2. heavy cannabis users' frequent involvement in the cannabis market exposing them to many opportunities to use other drugs (the 'overlapping drug markets' or 'drug-subculture' hypothesis).

Lenton et al. note that the latter hypothesis has been empirically tested and partially verified. In a sample of New York State high school students, it was found that cannabis users who did not become involved in the illicit market were no more likely to begin using other illicit drugs than non-cannabis users.⁽⁷⁸⁾ The overlapping markets hypothesis also appears to be given some support by the observation that the more frequent the cannabis use (and so, the more frequent the exposure to drug sellers), the more likely one is to come to use other illicit drugs.⁽⁷⁹⁾ With this said, Hall notes that there are still studies suggesting that heavy cannabis use in adolescence predicts an increased risk of harder drug use, where this is not due to background factors such as those of (i) and (ii) above.⁽⁸⁰⁾

Physical and Cognitive/Psychological Benefits of Cannabis Use

If cannabis were not perceived to have beneficial effects it would not be used. Many people who use cannabis, use it because of its relaxant and euphoric effects, and in some cases because of the belief that it facilitates social interaction. Historically, cannabis has also been used for medicinal purposes in various parts of the world. There is now an emerging body of scientific evidence that some of the active components of cannabis can have therapeutic effects.⁽⁸¹⁾ A recent review of the evidence⁽⁸²⁾ has collated the following beneficial actions of active components in cannabis:

• Suppression of nausea and vomiting (particularly in cancer patients). Often patients are reluctant to undergo chemotherapy because of the nausea involved, and THC has been shown to be effective in reducing nausea.⁽⁸³⁾
• Muscular relaxant. Muscle spasms and spasticity associated with multiple sclerosis has been shown to be reduced by doses of THC.
• Appetite stimulant for cancer and AIDS patients. There is evidence that THC is effective in appetite improvement and slowing of weight loss in cancer patients.
• Pain relief. THC has been shown to have analgesic effects.
• Glaucoma treatment. There is evidence that THC and other cannabis compounds can reduce the intra-ocular pressure symptoms associated with glaucoma.
• Treatment of insomnia, anxiety and depression. There is evidence from some studies that THC in the form of Nabilone can produce significant improvements in patients experiencing anxiety. Preliminary data also suggest that the active component in cannabis may be an effective hypnotic to reduce insomnia. THC has also been observed to have anti-depressant effects in cancer patients and others.
• Anticonvulsant. There is evidence (though not conclusive) that THC can reduce the rate of seizures associated with epilepsy.

A number of government reports have recently been completed on the issue of the medical use of cannabis, including the following:

• In the UK in 1998, a Select Committee of the House of Lords recommended that cannabis should remain a controlled drug, but that the law should be changed to allow doctors to prescribe an appropriate preparation of cannabis if they saw fit.
• More recently, in March 2001, it was reported that the House of Lords Select Committee on Science and Technology considered it undesirable that genuine therapeutic users of cannabis who possess or grow it for their own use should be prosecuted.⁽⁸⁴⁾
• A recent report commissioned by the NSW government⁽⁸⁵⁾ recommended the introduction in NSW of a compassionate regime to assist those suffering from a specified range of illnesses to gain the benefits associated with the use of cannabis without facing criminal sanctions. It also recommended further clinical trials and surveys. The NSW Premier Bob Carr has given strong indication that clinical trials will be conducted.⁽⁸⁶⁾
• The recent report of the Victorian Drug Policy Expert Committee recommended that Victoria Police and the courts use their discretion when dealing with people using cannabis to manage symptoms of serious, debilitating and often terminal conditions for which there are indications of therapeutic effect.⁽⁸⁷⁾

Harms Associated with the Acquiring of Cannabis

There are different ways in which users can acquire their cannabis, or in which others can supply it to them. Users can acquire it through organised networks involved in large scale cultivation and supply. They can also acquire small amounts through peers and friends who grow their own. And individuals can grow cannabis themselves for their own use. There will be different levels of potential risk, costs and harms associated with these for the user as well as for third parties. The most serious costs and harms are associated with the organised large-scale production and supply of cannabis, the currently dominant source of cannabis in Australia.⁽⁸⁸⁾ Lenton et al. have noted the following risks and costs associated with large scale supply:

• Associated criminal activity. Large-scale production and supply of cannabis often involves organised profit driven criminal distribution networks. The sums of money involved in large-scale production also involve a high risk of other criminal activities such as money laundering, violence, and corruption of officials
• Risk to users of further criminal involvement. Organised criminal distribution networks are a potential harm to individual cannabis users who directly access the networks to acquire their drugs and become exposed to the risk of further criminal involvement themselves.⁽⁸⁹⁾
• Opportunity for harder drug use provided by overlapping markets. There is evidence that cannabis users acquiring their cannabis from the existing large scale illicit drug market become exposed to other more harmful illicit drugs. Lenton et al. argue that large-scale profit driven drug markets involve cannabis users in distribution networks where there is opportunity to use a variety of other illicit drugs. They cite a number of studies in relation to this. For example:

• A 1993 study of drug dealers indicated that cannabis buyers might be willing or persuaded to buy cheap injectable amphetamines from them if cannabis turned out to be unavailable or expensive.⁽⁹⁰⁾
• A 1998 survey of 55 cannabis users found that 43 per cent of them had purchased their cannabis from suppliers who also offered them another illicit drug.⁽⁹¹⁾
• A 1999 study of 51 first time minor cannabis offenders found that nearly half who had bought cannabis in the last 12 months had been offered (or asked for) other drugs in that period.⁽⁹²⁾

Compared to large-scale provision, self-supply and low-level acquisition (acquiring small amounts from friends who grow their own) can be argued to involve fewer of these harms (legal consequences aside, which will be discussed shortly).⁽⁹³⁾ With self-supply, the immediate concern is probably the costs to the grower in terms of initial equipment outlays, labour and time in maintaining plants as well as efforts at concealment. There is also the risk of failure of plants to grow or survive, or to properly develop heads (the most THC-active parts).⁽⁹⁴⁾ In this event, the potential harm of crop failure is not so much the added cost of having to re-grow, but the possibility that the grower will resort to the established large-scale market to acquire cannabis.⁽⁹⁵⁾

Harms and Costs Associated with Controlling Cannabis Use and Supply

As was said, not only will cannabis use and supply involve potential harms, so too can the very attempts to regulate or control cannabis use and supply. Of course the nature and level of cost and harm will depend on the form of regulation in question. Nonetheless, some key observations can still be made about the prohibitionist approach that is dominant in Australia at the moment. Again, after reviewing the evidence, Lenton et al. note the following risks and harms of prohibitionism:

• Very high level of police and justice resource expenditure. As noted, a substantial proportion of all drug offences in Australia are cannabis related ones (nearly 70 per cent). The great bulk of these are consumer as opposed to provider offences, and relatively few are serious enough to result in prison sentences. The time and resources expended by police and the courts in processing such a large proportion of offences is considerable, particularly when the offences are minor ones.⁽⁹⁶⁾ It was estimated in 1995, that 13 per cent of all police and criminal justice resources were devoted to cannabis offences.⁽⁹⁷⁾ When viewed in terms of other more serious crimes that could have been attended to, this level of resource expenditure on cannabis charges seems all the more serious.
• High resource costs of detection with very limited impact. There are considerable costs involved in police detection efforts and operations relating to organised large-scale cannabis production, but there has been limited success and minimal impact on the availability of cannabis.⁽⁹⁸⁾
• Personal costs of a criminal conviction. In most Australian state jurisdictions, there is the likelihood of a criminal conviction for cannabis possession or use, and certainly for supply (if not for the first or second offence, then for later ones). A 1996 study found that in Western Australia 2-3 people per day received a criminal conviction for merely possessing cannabis for personal use.⁽⁹⁹⁾ A criminal conviction can have impacts on the lives of those convicted, including possible difficulties with employment, accommodation and travel to certain destinations.⁽¹⁰⁰⁾ Eric Single makes the following observations:

• A deterrent to seeking advice and help. It is often argued that the prohibited and criminal status of cannabis use can act to deter people, particularly young people, from seeking accurate information about the harms and effects of cannabis use. The same could be said about seeking out professional help with problematic use.

With respect to the supply of cannabis, criminal prohibitionism can also involve potential harms:

• Prohibiting self-supply may continue to entrench large-scale organised cannabis production. If self-supply is prohibited, then this is an incentive for those people who are determined to use cannabis (and who would not be deterred by laws against use), to continue accessing the cannabis black market, with its associated risks. To the individual user, it is better that the black marketeers take the risk of serious penalties for supply, than the individual user.

For completeness, it is worth mentioning that there may also be benefits from controlling or regulating cannabis use and supply as well as costs and harms. Exactly what the benefits are, and the degree to which intended benefits are realised, will depend on the particular form of control/regulation in question, and what things would be like without any control at all. Without going into the detail (just yet) of the effectiveness of various approaches at controlling or regulating cannabis, it would probably be safe to say that some form of control or regulation or public management of cannabis use and supply would be better than none. Where cannabis is freely available to anyone under any circumstances, and there is no license for state intervention, there is probably less chance of addressing the potential harms of cannabis use and supply.

Putting the Harms in Perspective

The cannabis related harms listed above are potential harms. This means they will not necessarily arise or occur in every case for every cannabis user or acquirer, or in every instance under a legislative system. They have been noted in clinical and empirical studies as outcomes of cannabis use or outcomes of modes of acquisition or regulation that are probable (rather than matters of pure chance), and probable enough to take note of. The harms are not all equally probable either. Some may be more likely to occur than others. Similarly, some types of user will be more vulnerable to some harms than to others. Given all this, the harms listed above are best thought of as cannabis related risks which may or may not be realised in any particular case depending on a variety of circumstances and contextual factors.

The evidence suggests that the significant health related risks from cannabis use are associated with heavy and sustained use, and early adolescent use or initiation. Other than in these circumstances, cannabis use does not appear to be significantly harmful to health and wellbeing (aside from the risks associated with its legal status, of course). It was noted earlier that in 1998, 39 per cent of Australians over 14 years of age (approximately 5.4 million people) had used cannabis at some point in their life, and that 2.7 million had used it in the previous 12 months. In the vast majority of these cases, cannabis use is thought to be occasional. It was noted also that among young people it is typically experimental and transitional, with few becoming ongoing regular users. Approximately 96 per cent of those who had used cannabis did not go on to use more harmful illicit drugs. Certainly all cannabis use brings with it the possibility of the immediate, but short-lived acute harms mentioned earlier (and these can be significant when, say, driving a car). But the overall level of chronic health related harms is limited, despite the widespread prevalence of cannabis use in the community.⁽¹⁰³⁾ Dependence is arguably the most prevalent of the health related harms currently associated with cannabis use.⁽¹⁰⁴⁾ However, while 10 per cent of those who have ever used cannabis meet some of the criteria for dependence, that still leaves 90 per cent of those who have ever used who do not exhibit symptoms of dependence.

This does not mean that the harms of cannabis use are negligible. They are certainly worthy of public policy concern, especially when certain groups are particularly vulnerable to risk of significant harm.

Who is Most at Risk?

Adolescents. As was observed earlier, cannabis users are mainly young people, and a significant proportion of them are adolescents. Adolescents are often more disposed to risk taking and experimentation, and tend to be more susceptible to peer influences. They are generally also not as socially well placed as adults to access reliable information, or support in the context of drug use. But it is not only the harms specifically associated with cannabis use that are a heightened risk for adolescents. Susceptible adolescents are particularly at risk when it comes to acquiring their cannabis from suppliers who may also be in the business of providing other illicit drugs. As was noted earlier as well, adolescents who are heavy cannabis users are more at risk of using other more harmful drugs.

Adolescents who begin use early in their adolescence. There is evidence that earlier initiators of cannabis use are more likely to become long-term frequent users, and with this there is increased risk of experiencing cannabis related harms, including cannabis dependence.⁽¹⁰⁵⁾ At least one study has also indicated that early initiators are more likely to try other illicit drugs.⁽¹⁰⁶⁾ As well as this, there is an observed association between earlier initiation of cannabis use and property offending.⁽¹⁰⁷⁾

Adolescents involved in the criminal justice system. These people have high rates of very heavy cannabis use.⁽¹⁰⁸⁾

People susceptible to mental illness. Heavy cannabis use can bring on psychosis in those predisposed to it, or make symptoms worse in those suffering it. There is also evidence that those suffering a mental illness can become dependent on cannabis use⁽¹⁰⁹⁾ (and this can interfere with treatment or retard recovery). One-third of young adults with psychosis are daily cannabis users.⁽¹¹⁰⁾

People driving or operating machinery under the influence of cannabis. Given the well observed perceptual and psycho-motor affects of cannabis, those in control of vehicles or machinery are at significant risk of seriously harming themselves or others.

Pregnant women. Heavy cannabis use during pregnancy may affect unborn children.

It should be kept in mind with these at-risk groups, that some individuals can fall into more than one risk category (for instance, cannabis users who are adolescent females with a mental illness who are at risk of pregnancy).

How Should Alternatives be Compared?

The overview of cannabis related harms and benefits just presented gives some indication of what, at bottom, needs to be compared when assessing alternative approaches to cannabis. But there is still a further, closely related question about how a comparative assessment like this is to best proceed. Simply listing or collating all the harms reduced by each legislative approach would be cumbersome and unorganised. Besides this, legislative approaches to cannabis need to be compared not just in terms of their observed impact, but also sometimes in terms of their probable or potential impact on cannabis related harms. Given this, it makes sense to go about comparing legislative responses in terms of their general capacities to reduce harm. In other words, in terms of how well they exemplify or reflect certain hallmarks of harm reduction-legislative properties that arguably facilitate and maximise the reduction of cannabis related harm. By proceeding in this way, potential as well as observed impacts can be taken into account. It will also make for a more organised and informative comparison.

Key Criteria for Comparing Alternatives

The central aim of cannabis legislation is not merely to reduce harm, but to reduce it as much as possible in the circumstances. Arguably, there are certain characteristics that a system of legislation can have that serve to enhance its capacity to minimise harm. The more strongly those properties are exhibited in the legislative approach, the more successful it is likely to be in minimising harm. These hallmarks of harm minimisation can thus act as criteria for critically comparing different approaches to cannabis.⁽¹¹¹⁾

Rational targeting of harm. This first hallmark of harm minimisation relates to the aims and objectives of a legislative approach, and the types of cannabis activities (e.g. possessing, using, acquiring, cultivating, supplying cannabis, etc.) that it should disallow or aim to deter (or otherwise regulate). Harm minimising cannabis legislation will target cannabis related harm. It will disallow only cannabis activities that are (sufficiently) harmful or risky, but not disallow those that are harmless (or involve only a very low risk).⁽¹¹²⁾ The focus on harm is paramount. There is no compulsion to reduce or restrict instances or types of cannabis activity that do not involve imminent or deferred harm (of a sufficient degree). Harm targeted cannabis legislation, in other words, will be selective and tolerant in the cannabis activities that it seeks to regulates. This will apply not just to types of cannabis use that are low risk, but also types of cannabis production and supply that are (near) harmless (if there are any).⁽¹¹³⁾

Well targeted cannabis legislation will be rational in its targeting, too. Clearly, the harms it seeks to deter need to be sufficiently serious (either in each individual case, or in their collective impact). But it would not seek to restrict a cannabis activity simply because there may be some probability of it being harmful. Simply saying that the cannabis activity can be harmful, is not enough, no matter how serious the potential harm. The harm needs to be a typical or expectable consequence of that type of activity-there needs to be a significant probability that the harm will, in fact, arise. It may be that, even when a cannabis activity can result in a serious harm, the expected incidence of that harm may be so low, or confined to such specific circumstances, that it may be just not justified to restrict the entire type of activity.⁽¹¹⁴⁾ Rationally targeting will be responsive to both the seriousness and the likelihood of harm. So, harm minimising cannabis legislation will seek to come as close as possible to capturing all and only those cannabis activities that are likely to involve sufficiently serious harm. The closer a legislative approach comes to this, and the more sensitive it is in its targeting, the more preferred it will be from the point of view of harm minimisation.

Comprehensiveness. The procedures and interventions that surround legislation-the enforcement and the administration of the law-can also significantly contribute to its harm reducing capacity.⁽¹¹⁵⁾ Written legislation is sometimes a blunt instrument for targeting harms, especially when the harms are variable and contextual. Law enforcement interventions and judicial decisions usually relate to particular cases of cannabis activity. They can, therefore, be more sensitive and attuned to the nature and probability of the potential harms involved, and can respond accordingly. Police, for example, are in a good position to exercise discretion⁽¹¹⁶⁾ in judging how to deal with an encounter, or whether to proceed with it, in the light of the harm involved.⁽¹¹⁷⁾ Similarly, the more that discretion in sentencing can be exercised by the judiciary, the more opportunity there is to match consequences to the actual harm of the offence (as per proportionality, discussed later).

Law enforcement interventions and judicial decisions can also provide opportunities for demand reduction and secondary prevention, opportunities that might not otherwise be available. For example, police have the capacity to provide information to offenders, or to direct them to drug education or counselling or maybe even treatment-all with the aim of reducing their inclination to further engage in harmful cannabis use or modes of acquisition or supply.⁽¹¹⁸⁾ Similarly with sentencing. There are opportunities for judges and magistrates, when imposing consequences for offences, to require offenders to undertake similar demand reducing activities, including drug treatment, or life skills training or employment tasks. The greater the opportunities a system of legislation provides for demand reduction and discretionary targeting of harm, and the more fully and comprehensively their potential is used, the greater its capacity to reduce harm.

Efficient harm reduction. It was pointed out earlier that the very process of attempting to reduce cannabis related harms will involve costs, and these costs can themselves be counted as harms. It is central to harm minimisation that as much harm as possible is reduced with the least possible created. This means that a good legislative approach to cannabis needs to be efficient at two points-at the point of resource expenditure and at the point of emergent outcomes. Consider the first. There would be something troubling about a legislative approach to cannabis if the resource costs (e.g. time, labour and material) of enforcing and administering it significantly exceeded the benefits it produced,⁽¹¹⁹⁾ or if an alternative approach produced the same or greater benefits with fewer resource costs. It seems desirable that the costs of enforcing and administering a system of cannabis legislation should be as low as possible for the harms it reduces, and certainly should not outweigh or exceed the harms reduced. On a goal of harm minimisation, approaches that reduce the most harm with the least resource cost will be preferred.⁽¹²⁰⁾

The second point of efficiency relates to the harmful or risk producing outcomes or side effects that a system of drug legislation can sometimes unintentionally have. To take an example relating to injecting drug use, laws prohibiting possession of injecting equipment, though intended to deter injecting drug use, can also provide a disincentive for injectors to use needle syringe exchanges (which require them to carry their used and new injecting equipment). A great public health risk is thereby perpetuated. Similarly, a system of cannabis legislation and enforcement may unforeseeably (or even predictably) affect the pattern and prevalence of cannabis use and acquisition, and this may result in changes in the level and distribution of harms. Severely reducing the availability of cannabis in some area, for instance, may result in some people shifting to the use of other more harmful drugs such as amphetamines. Clearly, a legislative approach to cannabis should avoid such harmful side effects and 'perverse incentives' as much as possible, and not cause more harm than it reduces. Harm minimisation will prefer approaches that are the most outcome efficient and reduce the most harm with the least degree of harmful side effects.⁽¹²¹⁾

Effective (and pragmatic) harm reduction. An approach to cannabis not only needs to aim for the right outcomes (as per targeting), there needs to be a sound expectation of it being reasonably successful in achieving them. The more effective an approach is in achieving the particular objectives it sets for itself in reducing cannabis harm, the better (other things being equal). But this is not the end of the story. Certain outcomes may ideally be good to produce, and a system of cannabis legislation may design itself to produce them, but it may turn out in reality that there is little chance of it being effective.⁽¹²²⁾ Many believe, for example, that the complete elimination of potentially harmful drug use and supply is such an outcome, and that regardless of our efforts, there will always be those who continue to use drugs and those who will continue to supply them. A legislative approach to cannabis that aims too high in its attempts at harm reduction, and is ineffective, will be less preferable to an approach that seeks more modest or qualified harm reduction outcomes but is more successful in achieving them.⁽¹²³⁾

Integrated and consistent harm reduction. If cannabis related harms are to be reduced as much as possible, it is important that there be consistency and coordination of legislative approaches between Australian jurisdictions. It is pointless having a harm reducing approach in one Australian jurisdiction if it is undermined by the outcomes and side effects of the less harm reducing approaches in other geographically adjacent jurisdictions, where people can freely and easily come in and out. Within a federation of state jurisdictions with open geographical boundaries and easy transport, such as in Australia, it important that legislative approaches to cannabis be as coordinated as possible to minimise counter productive effects.

The capacity an approach has to reduce harm can also be held back if it is does not respond in a consistent way to the interrelationships between different types of cannabis activities. For example, using cannabis and acquiring it are clearly interrelated activities. If a legislative approach makes provision for cannabis use in some way, it also needs to address the issue of how this use is to be acceptably supplied.⁽¹²⁴⁾ There also needs to be harm sensitive legislative consistency in relation to drugs other than cannabis, including licit ones. The deterrent force of laws relating to cannabis are very likely to be influenced by the laws and legal attitudes to other drugs such as tobacco and alcohol.

Proportionality in penalties. When a legislative approach specifies penalties for engaging in certain cannabis activities, the 'cost' or burden to the offender of the imposed penalties should be proportionate to the harms caused by, or inherent to, the offence (whilst also factoring in the need for a deterrent effect). The point of this is to prevent the seriousness of the penalties being manifestly out of step with the harmfulness of the offence, through being too severe or too lenient.

Limitations of Comparison and Provisos

The task at hand now is to assess the different approaches to cannabis in terms of how well they reflect these six hallmarks of harm minimisation. To do this, we need to identify the relevant social impacts of the different approaches, and to sensibly compare these with alternatives (both actual and possible). This process is far from an exact science, however. Often the impacts to be compared will merely be postulated or probable ones based on extrapolations or other arguments. And even when the impacts in question are concrete and observable, there may still be questions about how they should be interpreted. Consequently, expectations about the outcomes of broad social comparisons such as these need to be qualified and tempered with a degree of caution. The following indicates some of the major methodological limitations that can apply when comparing alternative legislative approaches to cannabis.

The question of causal attribution. The critical comparisons being conducted here assume that the specific impacts of legislation on cannabis harms can be incontrovertibly isolated and retraced. The truth, however, is that the nature and prevalence of cannabis related harms in society at any one time is influenced by a number of interrelated social factors, legislative conditions being only one among them. Socioeconomic, cultural, and individual or personal factors can all play a causal role. There will always be difficulty in sufficiently disentangling the various influences of these factors to be in a position to unequivocally attribute a particular state of drug related harms in society to a particular cause.⁽¹²⁵⁾

The availability of limited and non-uniform data. Not all jurisdictions that might be usefully compared keep all of the data that might be pertinent to such comparisons. Where they do, it is not always readily available in a form suitable for comparison. For instance, not all Australian jurisdictions keep information on treatment episodes where cannabis is the drug of primary concern, or information about the resource costs of processing cannabis offenders. And with data that does exist in a jurisdiction, it is not always centrally located or easily accessible (as with law enforcement data, sometimes). Its collection is not always centrally coordinated, or collected and processed in a way that is uniform between jurisdictions. Given all this, the aim can only be to make comparisons where the available data allows them to be soundly made. Unfortunately, this may not give as full a picture as might ideally be desired.

The commensurability of the harms being compared. If different legislative approaches are to be assessed as to their capacity to reduce cannabis related harm, it must be possible to plausibly judge that a particular sort of risk or harm has the same or different weight or importance or urgency as another sort of risk or harm. In many cases those judgements can plausibly be made and defended. For instance, few would disagree that being at high risk of a psychotic episode is more serious than being slightly disoriented from cannabis intoxication. But there are other comparisons which are not as easily made. Which is worse, for instance, the risk of permanent subtle cognitive impairment or the risk of further criminal involvement through exposure to black market drug suppliers? Even when no particular harms are in mind, which has greater weight, the small probability of a very great harm, or a great probability of a modest harm? Which legislative approach should be preferred, one that reduces the former risk or the latter?⁽¹²⁶⁾ To compound these questions, it is even possible that different stakeholders in the issue of cannabis regulation might sometimes assign different weights to different harms.^(127),(128)

The upshot of these three methodological limitations is that comparing alternatives may not always be straightforward, and the conclusions that arise ought not to be thought of as the incontrovertible conclusions of watertight arguments-proven beyond reasonable doubt, as it were. They should be viewed more as emerging on the balance of probabilities, in the context of the limited available evidence and the best arguments that can be framed from it. The comparative overview to follow is presented with this in mind.

Australian Approaches to Cannabis Compared

The rest of this paper will set about providing a critical overview of Australian approaches to cannabis by comparing their respective capacities to minimise harm. The two types of legislative approach currently operating in Australia-prohibition with predominantly criminal penalties (NSW, Qld, Tas., Vic., WA) and prohibition with civil penalties (ACT, SA, NT)-will be compared in terms of how strongly each exhibits or reflects the hallmarks of harm minimisation identified above. To determining how strongly each reflects those hallmarks, account will be taken of the available data and evidence, including observed outcomes, probable or projected impacts, and other considerations and arguments when they are relevant. This will hopefully leave us in a position to decide which of the two types of approach appears preferable overall.

Prohibitionism in Australia: Criminal versus Civil Penalties

Distinctions are usually made in Australian state legislations between offences of possession of small amounts of cannabis for personal use, possession of larger quantities, possession of commercially trafficable quantities, and cultivation, supply and trafficking offences. These are the broad sorts of activities that prohibitionist legislation in Australian jurisdictions prohibits and penalises. There are differences between civil prohibitionist jurisdictions and criminal prohibitionist jurisdictions in the penalties they impose, and how they class some activities as offences. In what follows, each of the hallmarks of harm minimisation will be taken in turn and the two legislative approaches compared with respect to it.

Targeting of Harm

Criminal prohibitionism. Criminal prohibitionist cannabis legislation in Australia targets all forms of cannabis possession, use, cultivation and supply. All instances of these types of activities are disallowed. How accurately does this sort of legislation target harm? Taking cannabis possession and use first, because criminal prohibitionism seeks a blanket prohibition, it certainly aims to deter all those cases of possession and use that are likely to involve significant harm. But there are reasons to think it casts the net too widely, and fails to confine its deterrent aims as close as possible to only those cases that involve a significant risk of harm. It was observed in an earlier section (pp. 9-13) that, for the most part, cannabis use is not a significantly harmful activity (legal consequences aside). Certainly all cannabis use brings with it the possibility of the immediate, but short-lived, harms mentioned earlier. And clearly, in some contexts like operating vehicles or machinery, cannabis intoxication is a serious risk. However, the chronic health related harms and risks that have been associated with cannabis use are largely associated with heavy, sustained use, or in some cases, early age initiation of use.

In view of this it would seem that in a notable proportion of cases of cannabis use, blanket prohibition over-targets. It seeks to prohibit and intervene in cases where a goal of harm minimisation would be tolerant. (And to the extent that possession of a small amount of cannabis can be taken as an indication of occasional use, a case could be put that there is some over-targeting in the blanket ban on possession, too.)

It might be replied here that even though occasional or experimental use is not particularly harmful, it still involves a risk of harm, albeit small, that it might lead to heavier use-and this risk justifies a blanket prohibition. It is better to make sure that people do not use cannabis at all, and are never exposed to that risk, by seeking to deter all cases of possession and use. So, it could be continued, blanket prohibition does accurately target harm to the extent that it targets use that carries a risk of harm. On top of this, targeting all use has the extra benefit of sending a message that there are risks. If some types or occasions of use were freely allowed, this would send the wrong message, particularly to young people, and would completely undermine the deterrent force of the law.

It is not clear, though, that this sort of argument is convincing. The probability that any one occasion of cannabis use will result in sufficiently serious health related harm (either immediately or later) would be very small. The only risks and probabilities that are arguably worth heeding are those associated with heavy use, or with specific circumstances (like use of machinery), or at-risk groups. It is not just any possible risk of harm in an activity that warrants a legislative response to it. The risk needs to be serious enough. Claims about sending the wrong message are questionable as well. But they are best examined under the heading of effectiveness, and will be taken up shortly.

What about the blanket prohibition on cannabis cultivation and supply? Whether this targets harm well or not depends on whether all or most or enough cases of cultivation and supply involve a sufficient risk of harm. It can be argued that there are two possible 'sources' of the harms associated with cannabis cultivation and supply. At one level, cultivating and supplying cannabis (for people's use) might be considered harmful to the extent that using cannabis can be risky or harmful. The observations above suggest that there is only a limited capacity to justify a blanket targeting of cannabis cultivation and supply on this basis. The significant risks attach mostly to heavy sustained use. Low-level occasional use does not carry the same risk, and if there are forms of supply and cultivation associated with occasional use (perhaps, home-growing of small amounts for personal use), there will be less justification for prohibiting them.

But there are also other reasons, apart from the risks with cannabis use, to view cultivation and supply as harmful activities. The possible involvement of organised criminal syndicates, large sums of money, money laundering, and the threat of violence-all connected with medium to large-scale cultivation and organised distribution-are examples. These potential harms are certainly serious enough to warrant attention. Criminal prohibitionism seeks to deter and intervene in these occurrences, and to that extent it is well targeted. With this said, however, there is significant question as to whether criminal prohibitionism (or prohibitionism in general, for that matter) is likely to be successful in reducing such harms. (This important issue will be taken up later.)

So, in all, it appears that criminal prohibitionism does not completely confine its aims to deterring only those forms of cannabis possession, use, cultivation and supply that hold a significant risk of harm. It correctly aims to deter the major harms associated with the cannabis black market, but it over-targets in other areas. This is particularly so in the case of possession of small amounts for occasional personal use, and perhaps even small scale home cultivation for occasional personal use.

Civil prohibitionism. Does this approach do any better? Civil prohibitionism and criminal prohibitionism, while differing in the strength of penalties they apply, are still the same in the cannabis activities that they prohibit (and apply penalties to)-all possession, use, cultivation and supply. They both impose a blanket prohibition and, to that extent, civil prohibitionism targets harm pretty much along the lines of criminal prohibitionism. There is a sense in which they both seek to deter all cannabis related activities.

Of course, it will be rightly observed here that targeting harm is not just a matter of which activities are aimed at, but also the degree of strength with which they are targeted. Assigning penalties of different severity to different activities serves to focus different levels of deterrent force on them. Different levels of penalty also provide different incentives and disincentives for behaviours. From a harm reductionist point of view, more harmful activities should be targeted with greater deterrence (or with stronger incentives against or disincentives for, the activities). Criminal and civil prohibitionist legislations both apply a graduated system of maximum penalties, presumptively in line with the relative harmfulness of the activities penalised. Typically very severe penalties are applied to large-scale cultivation and trafficking, and less severe to smaller scale activities, and even less so to simple possession and use. However, by imposing only fines for possession or use of small quantities, the civil prohibitionist approach sets a level of deterrence closer to the actual harm of these, by and large, low risk activities.

Civil prohibitionism also has another important advantage. Under criminal prohibitionism there are strong disincentives for users to acquire their cannabis by producing it themselves on a small scale. And for those who still want to use cannabis, this can act as an incentive to source their cannabis from others, including large-scale criminally organised cultivation and distribution networks.⁽¹²⁹⁾ Civil prohibitionism, in applying less serious penalties for small small-scale cultivation weakens this incentive, and acts as an influence to 'separate' drug markets (thereby targeting the risks associated with exposure to organised drug networks).

Proportionality in Penalties

Criminal prohibitionism. Is a criminal conviction (apart from whatever monetary or custodial penalties accompany it) a proportionate response to the harms involved in the cannabis activities that prohibitionism prohibits? This is different from asking whether a conviction or any other penalty is a sufficient deterrent for an activity. A life sentence for possession or use of cannabis, or a death penalty for any level of cultivation, would probably have sufficient deterrent force. But they would generally be regarded as completely disproportionate to the seriousness of the offences involved. Although effectiveness is crucial, proportionality is more a matter of fairness or justness (and limits what can justifiably be imposed in the name of deterrence or punishment).

Under criminal prohibitionism in Australian jurisdictions, there is the possibility of a criminal conviction for any of the cannabis activities prohibited. It was mentioned in an earlier section that receiving a criminal conviction can have notable impacts on people's lives and life opportunities, including restrictions on some career opportunities and travel options, as well as the possibility of social stigmatisation. The risks and potential harms associated with major activities like large-scale supply and distribution are agreed to be considerable, so most of the attention has focused on whether a criminal conviction is proportionate in the case of minor offences such as possession of small amounts for personal use, or cultivation of small amounts for that purpose.

Whether one will actually receive a criminal conviction as a sentence for mere possession/use of cannabis, as opposed to some other varies between Australian criminal prohibitionist jurisdictions. Some jurisdictions convict at a higher rate than others. Between 1993 and 1995 in Western Australia, for instance, 99 per cent of those charged with possession/use received a criminal conviction.⁽¹³⁰⁾ In 1993, two to three West Australians per day acquired a criminal record for cannabis use or possession of small amounts for personal use.⁽¹³¹⁾ A substantial proportion of these people would have had no previous conviction (40 per cent in 1996)⁽¹³²⁾ and many would have been first time offenders (42 per cent in 1993).⁽¹³³⁾ In other jurisdictions, other sentencing options may sometimes be applied which avoid conviction, (e.g. an adjourned bond with or without conditions, in Victoria). (There are also diversion schemes for first time offenders which will be noted below.)

In most cases, people's use of cannabis is experimental, occasional and involves relatively little harm to users or others. Given this, many argue that the enduring consequences of a criminal conviction are out of step with the seriousness of the offence.⁽¹³⁴⁾ This is thought to be particularly so seeing that experimental and occasional use is most prevalent among young people, and that cannabis users generally appear to be otherwise law abiding people.⁽¹³⁵⁾

Civil prohibitionism. Civil prohibitionism arguably fares better with respect to proportionality because it applies penalties that are more commensurate with the level of harm involved in minor cannabis offences. A criminal conviction is not the first port of call in the case of small scale possession, use and cultivation offences-moderate fines being imposed instead. There is an important qualification to this, nevertheless. Although a criminal conviction may not be the first port of call with minor cannabis offences, it is not always completely off the agenda, either. In many civil prohibitionist approaches, if offenders in the end fail to pay their fine, the matter reverts to the justice system and is dealt with via court order. In these circumstances, the matter may well result in a conviction being imposed after all.⁽¹³⁶⁾

Overall, however, the civil system employs penalty options that do seem more proportionate than th