During the 1970s and early 80s Australian drug policy mirrored the tough-on-drugs approach of the United States. Penalties were raised, the burden of proof needed for conviction was lowered, and civil asset forfeiture laws were introduced. Penalties for marijuana were severe and based on legislation introduced in most of the States and Territories towards the end of the 1800s and early 1900s (primarily concerned with the smoking of opium by Chinese people). Tough law enforcement was viewed as the primary solution to the problem of illicit drug use. A change in some of the attitudes towards illicit drug use first came about in relation to marijuana use. For the most part marijuana was little known or used in Australia until the 1960s.

Australia’s drug policy underwent a major shift with the inception of National Campaign Against Drug Abuse (NCADA) in 1985. The punitive approach was dropped and replaced with a focus on public health and harm reduction. The NCADA stressed that drug use should be treated primarily as a health issue. Drug policy authority was placed under the Federal Department of Health rather than the Federal Attorney General’s Department, due at least in part to the emergence of HIV/AIDS. The new program involved a partnership between the Commonwealth (or federal government), States and Territories. It also attempted to foster a partnership between health and law enforcement in a comprehensive strategy involving an integrated approach to licit as well as illicit drugs.

One of the major initiatives undertaken was to disseminate information throughout Australia about major illicit and licit drugs. The mission of Australia’s drug strategy is to improve health, social and economic outcomes by preventing the uptake of harmful drug use and reducing the harmful effects of licit and illicit drugs. A further principle underlying the new drug strategy was that reliable data, new approaches and ongoing evaluation. As part of this new effort, the Ministerial Council on Drug Strategy (MCDS) commissioned two independent evaluations of the NCADA to assess progress and make appropriate recommendations. Incorporating the recommendations from the two evaluations, the National Drug Strategy continued to stress the importance of harm reduction. Some of the goals of the Strategy were to:

• Minimize the level of illness, disease, injury and premature death associated with the use of alcohol, tobacco, pharmaceutical and illicit drugs;
• Minimize the level and impact of criminal drug offenses and other drug-related crime, violence and antisocial behavior within the community;
• Minimize the level of personal and social disruption, loss of quality of life, loss of productivity and other economic costs associated with the inappropriate use of alcohol and other drugs; and
• Prevent the spread of hepatitis, HIV/AIDS and other infectious diseases associated with the unsafe injection of illicit drugs.

The strategic plan identified six specific concepts which were to underpin the development and implementation of drug policy: harm minimization; social justice; maintenance of controls over the supply of drugs; an intersectoral approach; international cooperation; and evaluation. In June 1999, Commonwealth, State and Territory health and law enforcement Ministers agreed on a national approach to the development of a treatment instead of incarceration initiative designed to divert illicit drug users from the criminal justice system into education and treatment. Diversion is not considered appropriate for trafficking offences. Drug-involved offenders may be cautioned on the streets and provided with treatment referral information if their offense is minor. They can also be sent for assessment or directly to treatment rather than prison, as long as they do not pose a threat to society.

Marijuana Decriminalization

While the National Drug Strategy provides a general framework for responses to drug problems, drug offenses and the penalties in Australia are a matter of state and territorial jurisdiction. The impetus for marijuana law reform in South Australia came out of the recommendations contained in the 1979 report of the South Australian Royal Commission into the Non-Medical Use of Drugs. The Commission recommended that minor marijuana consumption not be treated as a criminal offense. In making such a recommendation the Royal Commission was able to cite several overseas jurisdictions, including ten states in the United States, which had taken such a step without increasing use.

Some Australian states and territories have adopted marijuana decriminilization measures while others have not. The first jurisdiction to adopt marijuana decriminilization was South Australia. Reform of the marijuana laws in South Australia came with the introduction of the Controlled Substances Act Amendment Act, 1986. Under the Marijuana Expiation Notice (CEN) scheme adults coming to the attention of police for “simple marijuana offences” could be issued with an expiation notice. Offenders were able to avoid prosecution by paying the specified fine within 60 days of the issue of the notice. Failure to pay the specified fees within 60 days could lead to prosecution in court, and the possibility of a conviction being recorded. Underlying the CEN scheme is the rationale that a clear distinction should be made between private users of marijuana and those who are involved in dealing, producing or trafficking in marijuana. This distinction was emphasized at the introduction of the CEN scheme by the simultaneous introduction of more severe penalties for offences relating to the manufacture, production, sale or supply of all drugs of dependence and prohibited substances, including offences relating to larger quantities of marijuana.

The Australian Capital Territory (in 1992) and the Northern Territory (in 1996) introduced similar expiation schemes. Victoria implemented a system of cautions for minor marijuana offenders in 1998 and Western Australia has followed with a similar scheme. The changes made in the law are not technically “decriminilization” measures as marijuana possession remains a criminal offence in all Australian jurisdictions. What has been changed is the reduction in the penalty for possessing small amounts of marijuana for personal use. The impact is best seen in South Australia which has been the subject of a number of evaluation studies. The South Australian CEN system began in 1987. The main arguments for an expiation system were the potential cost savings and the reduction of negative social impacts upon convicted minor marijuana offenders. Implicit in the latter view was the belief that the potential harms of using marijuana were outweighed by the harms arising from criminal conviction.

None of the studies upon levels and patterns of marijuana use in South Australia have found an increase in marijuana use attributable to the introduction of the CEN scheme. Marijuana use did increase in South Australia over the period from 1985 to 1995 but this was so throughout Australia, including in jurisdictions with marijuana prohibition. In fact, the largest increase in the rate of weekly marijuana use across all Australian jurisdictions occurred in Tasmania, a criminal prohibitionist state, between 1991 and 1995. A comparative study of minor marijuana offenders in South Australia and Western Australia concluded that both the CEN scheme and the more punitive prohibition approach had little deterrent effect upon marijuana users. However, the adverse social consequences of a marijuana conviction far outweighed those of receiving an expiation notice. A significantly higher proportion of those apprehended for marijuana use in Western Australia reported problems with employment, further involvement with the criminal justice system, as well as accommodation and relationship problems. There has been strong support by law enforcement for the CEN scheme. The scheme has proven to be relatively cost-effective and far more cost-effective than prohibition would have been.