The Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 (ACT) - likely to be passed in an amended form - seeks to amend the Drugs of Dependence Act 1989 (ACT) in relation to personal possession of cannabis, with consequential amendments to the ACT Criminal Code 2002.
The 2018 Explanatory Statement indicates
The Bill will amend criminal laws to allow for the personal use and carry of cannabis up to a limit of 50g. The Bill will also allow individuals to cultivate up to four cannabis plants (excluding artificial cultivation). This change will bring cannabis laws more in line with modern community standards and reflect global trends. The Bill will reduce the burden on our criminal justice system and bring us a step closer to a cannabis market.
The Bill will retain penalties for possession above 50g at current levels, cultivation of more than four plants will remain illegal, artificial cultivation will remain illegal, sale will remain illegal and sale and supply to minors will especially remain illegal.
Background
In 1971 Australia signed the Single Convention on Narcotic Drugs of 1961 which extended importation controls over drugs like cannabis. Since then Australia has been a party to further international treaties on drugs and Section 300 of the Criminal Code (Cth) 1995 creates offences relating to drug trafficking and gives effect to the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. States however retain power of laws regarding possession.
In 1992, the ACT decriminalized cannabis possession under 25g through the Simple Cannabis Offence Notice (SCON) scheme. This scheme, according to the 2013 ACT Health Department report Evaluation of the Australian Capital Territory Drug Diversion Programs, aimed to
1. To minimise harms associated with unnecessary involvement in the criminal justice system (CJS)
2. To strength partnerships (between law enforcement, courts, health and other stakeholders)
3. To educate police and courts regarding what are the appropriate responses to Alcohol and Other Drugs (AOD) issues
4. To fulfil the community expectation of community protection and the punishment of offenders
5. To educate young people and families
6. To deter encounters with the CJS
7. To reduce AOD use
8. To reduce cost to the CJS and reduce social cost of AOD
9. To reduce AOD-related crime
The limit was subsequently increased to 50g to reflect the fact that almost universally individuals purchased cannabis at quantities above the 25g limit and therefore were ineligible to be diverted from the CJS.
Recent international developments have seen 9 US states and the District of Colombia legalise cannabis not just for personal use but legalising the industry. Canada has also legalized the sale and possession of cannabis and is in the process of setting up their market. New Zealand has also pledged a referendum on the issue before 2020.
Community attitudes on cannabis are shifting and unbiased research has shown it is not a particularly harmful substance. According to the Australian Institute for Health and Welfare in their report, Impact of Alcohol and Illicit Drug Use on the Burden of Disease and Injury in Australia, alcohol represents 4.6% of the total burden of diseases and injuries in Australia, tobacco 9% and cannabis only 0.1%.
Despite causing 46 times less harm than alcohol, cannabis remains illegal. And despite the decades long campaign waged against drug use, cannabis remains the most popular drug in Australia according to the Australian Criminal Intelligence Commission in their report Organised Crime in Australia 2017. The National Drug Household Strategy Household Survey 2016 found that 35% of Australians have used cannabis and 10% have used it in the last year. But the substantial profits of cannabis go to organised crime and away from health and education.
The Bill will ease the burden on law enforcement who spend over $1.1 billion every year on drug law enforcement in Australia according to the UNSW based Drug Policy Modelling Program in their 2013 report Government Drug Policy Expenditure in Australia 2009/10. And according to the Australian Criminal Intelligence Commission’s 2016-17 Illicit Drug Data Report over 50% of drug related arrests in Australia (154 650 total) were cannabis related and 91% of those were consumer arrests i.e. small amounts.
Cannabis is sometimes touted as a ‘gateway drug’ and that it will encourage people to try harder substances. A comprehensive review of scientific studies on this topic by the American National Academies of Sciences, Engineering, and Medicine titled The Current Health Effects of Cannabis and Cannabinoids states that ‘Additional studies are needed to determine whether cannabis use is an independent risk factor for, or causally contributes to, the initiation or use of and dependence on other drugs of abuse later in life’.
Interaction with Federal Law
This Bill does not affect the prosecution or enforcement of Commonwealth and Territory laws relating to the sale or trafficking of cannabis, including laws prohibiting the possession of amounts of cannabis over 50g and the cultivation of 5 or more cannabis plants.The Statement does not engage with the crucial question of the Commonwealth's ability to override ACT legislation (a fact, evident in relation to the Territory's badly-managed same-sex marriage Act) and willingness to do so (likely, not leasr as a useful diversion).
The report on the Bill by the Standing Committee on Health, Ageing and Community Services features the following recommendations, of which R 11 is of particular interest -
1 The Committee recommends that, subject to the following comments and amendments, the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be supported.
2 The Committee recommends that consequential amendment [1.2] (Section 168(2) of the Criminal Code 2002), in the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018, be amended to increase the number of plants an individual can cultivate to a maximum of four, and the number of plants a household can cultivate to a maximum of six.
3 The Committee recommends that an amendment be included in the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018, to allow for soil cultivation in a greenhouse and/or with artificial light.
4 The Committee recommends that Section 171AA(2) of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill be amended to define plant weight, wet weight, dry weight and any other format in which cannabis can be possessed.
5 The Committee recommends that the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 should also clarify that, while growing a plant, it is counted as a plant and its weight is not relevant for the purposes of this legislation.
6 The Committee recommends that if artificial cultivation is not allowed, the dry weight (or equivalent) allowable be expanded to 100 grams as in South Australia.
7 The Committee recommends that Section 171AB(1) of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to adopt similar smoking offences as presented in the Smoke-Free Public Places Act 2003, as well as Smoking in Cars with Children (Prohibition) Act 2011 for smoking cannabis in public places.
8 The Committee recommends that Section 171AB(2) of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to adopt similar smoking offences as presented in the Smoke-Free Public Places Act 2003, as well as Smoking in Cars with Children (Prohibition) Act 2011 for smoking cannabis near a child.
9 The Committee recommends that the ACT Government collaborate with ACT Policing to adopt a cannabis drug driving test that determines impairment.
10 The Committee recommends that Section 171AA of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to include express authorisation for the cultivation and use of cannabis by individuals for personal use.
11 The Committee recommends that the ACT Government intervene in any prosecution by the Commonwealth of ACT residents who cultivate or possess cannabis in accordance with the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 to defend the intent of the Bill.
12 The Committee recommends that, should cannabis for personal use be legalised in the ACT, the ACT Government considers appropriate measures for overturning convictions relating to possession and cultivation of cannabis for personal use.
13 The Committee recommends that, regardless of whether or not the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 is passed, the ACT Government ensures that there are sufficient health resources available to treat cannabis dependence.
14 The Committee recommends that the ACT Government develop a public health campaign about cannabis to be delivered on an on-going basis.
15 The Committee recommends that strong public information about the provisions of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 proceed or coincide with the implementation of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018.
16 The Committee recommends Section 162 of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to include a provision that allows group cultivation where: • The number of people in the group is between two and 10; • The cannabis must be cultivated on the premises of one of the members; • Every plant must be ‘owned’ by an individual ACT resident and the name and address of this individual must be made available to police if requested; • No one in the group can own more than the legal limit of plants for an individual; • Cannabis product in the group is owned by the individual owner of the plant that produced it; and • Cannabis product cannot be traded or exchanged with other individuals.The Government's response last week states
The ACT Government does not condone or encourage the recreational use of cannabis or other drugs. This is a message we will continue to share with the Canberra community both in the context of this legislation, and more broadly.
We must acknowledge, though, that the outright prohibition model of drug policy is not working, as cannabis use is prevalent both across Australia and within the Canberra community. There is good evidence from drug law reform around the world that a harm minimisation approach delivers better outcomes both for individuals and communities.
This is why the ACT Government has indicated we intend to take a harm minimisation approach by supporting the Drugs of Dependence (Personal Cannabis) Amendment Bill 2018 with a range of amendments to add further safeguards and protections for the community. The Government’s view is that the Bill is a logical next step of the Simple Cannabis Offence Notice (SCON) scheme rather than a revolutionary change. Its effect will be to remove penalties for the use and possession of small amounts of cannabis by individuals over 18 years, in line with the ACT’s harm minimisation objectives. The SCON scheme is intended to continue for individuals under 18 years old.
In this context, the Government offers the following response to the Committee’s report and recommendations. This re-states and expands upon a number of important points made in our original submission to the inquiry, as well as responding to the Committee’s individual recommendations.
ACT drug policy
The ACT Government’s policy regarding the harms caused by alcohol, tobacco and other drugs is clearly articulated in the ACT Drug Strategy Action Plan 2018–21 (the ACT Action Plan). The Action Plan, which aligns with the National Drugs Strategy, outlines a commitment to evidence-based and practice-informed responses to drug use that minimise harm in our community.
The Government has been clear that we do not condone nor encourage the recreational use of cannabis, which we know presents health risks. However, outright prohibition clearly does not work as an effective strategy for dealing with drug use in our community. Despite currently being illegal, 8.4 per cent of Canberrans have reported using cannabis in the previous 12 months.
The ACT has a long history of taking progressive steps and trying new ideas to minimise the harm of drugs in our community. This includes being one of the first jurisdictions in Australia to decriminalise the personal possession of small amounts of cannabis. The Government intends to continue taking well considered steps to improve our drug laws.
It is important to note that, even after the passage of this Bill, possessing and growing cannabis will carry a degree of risk arising from interactions between Territory and Commonwealth law. We believe the ACT is able and entitled to make our own laws on this matter. However, we would be the first jurisdiction in Australia to legislate in this way, and the interaction with existing Commonwealth law remains untested. The amendments proposed by the Government aim to reduce the risk to individual Canberrans but cannot remove this entirely.
There is also uncertainty as to how a Commonwealth Government may react to the ACT passing this Bill. We cannot guarantee the Commonwealth Government would not intervene to prevent reforms – as has occurred in the past when the ACT has attempted nation-leading progressive reform on issues like marriage equality.
There are a range of health implications that must be considered. It is clear that some people experience adverse mental health effects from using cannabis, and that its use can become problematic over time. These health risks already exist for anyone who uses cannabis under current legislative settings, but it will be important to continue raising community awareness of these risks in parallel with the legislative process.
The Government believes implementation of this Bill may assist in addressing some of these health risks. For example, the stigma and risk of punishment associated with illegal drug use may mean that people do not seek medical or other types of help when they need it. Legalising the personal use of small amounts of cannabis will create opportunities to better reach people who are already using the drug and connect them with the services or supports they need.
Proposed Government amendments
In light of these and other issues, the Government will move a number of amendments to the Private Members Bill.
1. Personal plant limits
Whereas the Bill proposes to allow an individual to possess four cannabis plants, the Government will move amendments to limit this to a maximum of two plants. This is consistent with the settings of the current SCON scheme and is considered a reasonable limit for personal use.
2. Household plant limits
The Bill does not currently include a limit on the number of plants that would be allowable in any single dwelling. This gives rise to potential situations where share houses (or properties that otherwise have multiple residents) could effectively be used as larger scale ‘grow houses’. The Government will move amendments introducing a household limit of four cannabis plants, regardless of how many individuals are resident.
3. Restrictions on where cannabis can be grown
The Government will move amendments to restrict where personal cannabis plants can be grown. These amendments will address two separate issues. First, cannabis plants will only be able to be legally cultivated on parts of residential property not generally accessible by the public. This would exclude cannabis being grown in areas such as verges or community gardens. This restriction is intended to minimise access to cannabis plants by people other than the legal owner or resident. This would also have the effect of preventing cannabis being legally cultivated on commercial or community property. Second, cannabis plants would only be able to be legally cultivated by a person usually residing at that property. This is intended to establish a nexus of ownership for cannabis plants.
4. Storage
Government amendments will require cannabis to be kept out of reach of children when not in an individual’s possession in order to restrict access by children and young people or other vulnerable individuals. The Government amendments will require a person in possession of cannabis to take reasonable steps to store the cannabis out of reach of children. Examples will be provided in the supplementary explanatory statement for the Government amendments, reflecting current approaches to storing dangerous chemicals or prescription drugs.
5. Distinction between fresh and dried cannabis
The Bill as drafted would legalise possession of 50 grams of cannabis, which is taken to refer to dry cannabis in line with the settings of the SCON scheme. This creates a practical issue due to freshly harvested cannabis plant material weighing more before it is dried. To reduce ambiguity in the Bill, the Government intends to move amendments that will distinguish between ‘dry’ cannabis (ie. cannabis ready to be used) and ‘wet’ cannabis (ie. harvest plant material that has not yet been dried). Dried cannabis would still be subject to a 50 gram limit as included in the Bill. The Government will move to include a separate limit of 150 grams for ‘wet’ cannabis that would apply to cannabis that has been harvested but not yet dried. This limit has been selected primarily on the basis that it would limit individuals from potentially possessing amounts of dry and wet cannabis that would approach the threshold for a trafficable quantity.
6. Smoking near children
The Government supports the intention of the Bill’s restrictions on smoking near children, but considers there would be practical challenges to implementing this through the proposed 20 metre distance rule. For example, an individual legally smoking cannabis in their own open backyard could potentially be within 20 metres of a child in a neighbouring property without intending to, or even being aware this is the case. To make this element more practical, the Government will move amendments to prohibit the smoking of cannabis near children through an offence involving a mental element, rather than a distance-based rule. That is, an individual will be deemed to have committed an offence if they knowingly use cannabis in a way that exposes a person less than 18 years old to this. The Government amendments include a defence for situations in which the individual can prove they took all reasonable steps to ensure the child was not exposed to smoke or vapour.
7. Interaction with Commonwealth Government legislation
The Government will move amendments that are designed to resolve potential incompatibilities with Commonwealth laws. The approach the Government considers most closely achieves this objective is to retain offences in the Drugs of Dependence Act for possession and cultivation of cannabis over prescribed limits but include an exception such that those offences do not apply to anyone over 18 years of age. This would mean the ACT still retains a relevant offence in legislation but with the practical outcome that possession and cultivation of small amounts of cannabis would be effectively legal for individuals. While the Government notes that Recommendation 10 made by the Standing Committee seeks to address these issues, we consider these proposed amendments to be a preferable option to achieve compatibility.
Other matters
The Government acknowledges that changes to the legal framework for personal use of cannabis of this kind have not been tried in Australia before. Notwithstanding the above amendments, there remains a degree of uncertainty and risk associated with the proposed new approach. We will seek to collect relevant data to effectively evaluate the outcomes of these reforms, with an evaluation being conducted no more than two years after the date of the Bill’s implementation. This will help inform decisions about any necessary further reform or amendments to the legislative framework created through this Bill. The Government’s response to the Committee’s individual recommendations is outlined below. In summary, the Government agrees to four recommendations (#1, #13, #14 and #15), notes eight recommendations (#4, #5, #7, #8, #9, #10, #11, #12) and does not agree to four recommendations (#2, #3, #6, #16).
