A NSW parliamentary committee inquiry into the impact of rules governing cannabis has recommended Labor takes immediate steps to decriminalise it, with a view to legalising adult use.
The committee, chaired by Jeremy Buckingham, Legalise Cannabis MLC, released its interim report on October 31, just before two days of NSW Drug Summit hearings in Griffith and Lidcombe. The summit will host a final two days on Gadigal land in Sydney in December.
Buckingham noted that changes to the rules could be made in a way that “does not exacerbate cannabis-related harms and, crucially, builds community support for reform”.
The committee outlines a staged pathway for reform and recommends it begin this parliamentary term. “This framework should begin with a relaxation, but not elimination, of the criminalisation of cannabis.”
The report said that while government is not required to commit to decriminalisation or legalisation, the inquiry’s outcomes should persuade the community to support both options along the way.
Lower cannabis criminality
The chief recommendation from the seven Legislative Council members, including NSW Greens MLC Cate Faehrmann and Labor MLC Stephen Lawrence, was to gradually decriminalise cannabis.
The first step would involve changing the quantity-based sentencing regime that is, in part, contained in schedule 1 of the Drugs Misuse and Trafficking Act 1985 (DMT Act) where more than 200 illegal drugs (plants, precursors and reagents) and the penalties for various quantities are listed.
The committee said the punishable quantities of cannabis are too low. The maximum penalty for personal possession of cannabis, under section 10 of the DMT Act — two years imprisonment and/or a fine of $2200 — should become a fine-only offence, they said. If a prison sentence is going to be imposed, it must be a maximum of three months.
The committee also recommends a change to cannabis offences, so that the non-commercial supply is treated as possession. It wants to remove the provision of deemed supply, under section 29 of the DMT Act, from the cannabis regime.
Further, it wants limits placed on NSW Police’s ability to search people for small quantities.
It said the cannabis cautioning scheme should have a presumption towards diversion, an on-the-spot fining system for minor cannabis offences, as South Australia has, and police targeting of cannabis should end.
The final key reform it proposes is a defence against a charge of cannabis driving when the driver uses prescribed medicinal cannabis.
The second inquiry recommendation is for the NSW government to monitor and evaluate these steps and report back to parliament after 12 months.
Domestic cannabis use trends
The NSW inquiry takes place as global attitudes to cannabis use change: 24 states in the United States, along with Washington DC, have legalised recreational cannabis. Uruguay, Canada, Thailand and Malta have variously legalised and regulated models of adult use.
The inquiry report reminds that the Malcolm Turnbull Coalition government legalised the commercial cultivation, manufacture and supply of medicinal cannabis in 2016. More than 1 million people have been prescribed medicinal cannabis.
Decriminalising the recreational use of cannabis follows the precedent set by the Australian Capital Territory, which did this for personal use in January 2020. A person can possess up to 50 grams of dried cannabis or 150 grams of the fresh herb: they can grow up to two plants per person and a household can have four plants.
According to the National Drug Strategy Household Survey 2022–2023, cannabis is the most popular illicit drug here and across the globe: 41% of Australians over the age of 14 have tried it, with 11.5% having used it over the past 12 months.
However, despite changing attitudes and more permissive regimes, the Illicit Drug Data Report 2020–2021 states that arrests for cannabis use have grown over the last decade to 66,285 arrests for that period. The vast amount of these arrests — 90% — are for personal possession not supply.
NSW Police can issue up to two warnings to those with a personal amount of cannabis before making an arrest. The NSW Bureau of Crime Statistics and Research had found that officer discretion results in 12% of Aboriginal adults being issued a caution, compared with 44% of non-Indigenous adults.
Former NSW Director of Public Prosecutions (DPP) Nicholas Cowdery told the inquiry that there is “consistent evidence that decriminalisation doesn’t encourage cannabis use or increase cannabis taking in the community”. He said the opposite is true as decriminalisation opens up pathways to treatment.
Cowdery, who is the longest serving NSW DPP and who represented the NSW Council for Civil Liberties at the inquiry, said his organisation was concerned about the impact that cannabis laws are having on “the unacceptably high level of First Nations people in custody and the general over policing of First Nations people in NSW”.
Cowdery maintains that decriminalisation of cannabis, with consistent quantities for personal use, the removal of criminal profits from the drug market, reducing harms for problematic use, the roll-out of pill testing, ending strip searching and sniffer dog use, as well as the specific concerns of First Nations people, should be on the agenda.
He said the “saviour complex” is hampering drug reform: many politicians believe they need to save the community from illegal drugs. He said the layers of criminalisation for illicit substances do not improve community safety.
“Here we meet an uncomfortable fact: that a huge proportion of illicit drug users are not dependant or addicted,” Cowdery said. “They use by choice and unproblematically for the most part. They deserve to be heard as well.”
“While boosting support services for problematic users is a laudable aim, many just want to have a lawful choice.”
[Paul Gregoire writes for Sydney Criminal Lawyers where this article was first published.]