Alternative Systems of Cannabis Control in New Zealand: Part 2

Analysis of Cannabis Control Policies: Introduction

We now consider the various possible systems of cannabis control in light of the principal goals to which a national cannabis policy in New Zealand should reasonably be directed, namely (1) to minimise the harmful use of cannabis and (2) to promote public health.

In view of these goals, a key attribute of cannabis control policies is the extent to which policies reduce (or produce) harm to individuals and societies. In this regard, MacCoun et al. listed nearly 50 "harms and costs" related to drug use, along with an indication of who bears the harm/cost (e.g. user, society) and the primary source of the harm (e.g., the drug itself, illegality).(13) Harms were divided into four categories: health, social and economic functioning, safety and public order, and criminal justice.

Ten health-related harms were identified (e.g., health-care costs, suffering due to physical or mental illness, addiction, disease transmission, inhibition of voluntary pursuit of treatment, restriction on medicinal uses of drugs), of which four were caused wholly or in part by the drug's illegal status or enforcement, while seven stemmed wholly or in part to use of the drug per se. Of twelve harms related to social and economic functioning (e.g., reduced performance in work or school, poor parenting/child abuse, harm to self-esteem, reputation and employability, accruing criminal networks, infringement on personal liberty), eight were related to illegality and enforcement; seven to use (more than one cause was listed for three harms).

Ten harms concerning safety and public order were identified (e.g., accidents at work or on the road, property crime, violence, sense of public disorder, and observably widespread violation of the law) of which eight could be traced to illegality or enforcement, and five to use. Finally, all nineteen harms related to criminal justice (e.g., increased costs for police, courts, and incarceration, policy invasion of personal privacy, corruption and demoralisation of legal authorities, stigma of criminal record) are caused by enforcement and/or illegality alone.

The authors concluded that the substantial majority of harms and costs associated with drug use stem from illegality and/or enforcement of the prohibition laws. However, as noted by the authors, judgment is required to assess the relative weight assigned to the various harms and costs(making it difficult to rank policies definitively according to harm produced or prevented. Nevertheless, methods do exist for assigning utilities (or disutilities) to various outcomes, and relative weights could be assigned to the outcomes by samples drawn from the community, from users, or from "experts". It is also possible that the common metric of cost could be assigned to various outcomes. In either case, a judgement could be made about which policy produced the least possible harm.

The most extensive analysis of the extent to which alternative cannabis control systems reduce harm was conducted by the Australian Institute of Criminology in 1995.(14) The main report was accompanied by a series of seven working papers, the first of which, A comparison of the social impacts of the legislative options for cannabis and their enforcement, evaluated each option in the AIC's six-part taxonomy (above) along each of the following dimensions:(15)

• patterns of cannabis consumption
• health and psychological functioning
• law enforcement, crime and other legal issues
• costs of cannabis law enforcement and other economic factors
• driving behaviour
• public attitudes
• education and employment
• self-identity
• family and community relations
• social impact on young people

The authors concluded that, although large gaps existed in the research evidence, a policy of total prohibition generally increases harm across each dimension. For example, with respect to the dimension most of concern to many observers(social impact on young people(the report concluded that removing criminal penalties from personal use of cannabis would produce the following advantages:(16)

• Reduce the contact of young cannabis users with black marketeers who are liable to be more criminal than their customers.
• Separate the cannabis market from other illegal drug trades thereby making it less likely that cannabis users would graduate onto more dangerous drugs
• Remove the stigma and potentially devastating social harm associated with receiving a criminal record at a young and, in an educational and occupational sense, crucial age.
• Increase both the opportunity and the finance for developing and implementing successful educational campaigns about drug use.
• Help demystify and make less attractive the experience of 'getting stoned' should there be any truth to the popular belief that young people are attracted to illegal drugs as an expression of rebellion. Indeed, in The Netherlands, it has been claimed that policy succeeded, as the government intended, in 'making drugs boring'.
• Reduce tension between young people who use cannabis and the police, improve the reputation and perceived fairness of the law.
• Aid communication between young people and their parents, many of whom would have been part of the cannabis culture of the 1960's and '70's, by removing the stigma, and potential drawbacks, attached to admitting to having done something that was, and is, a criminal offence.

Systematic analyses of the harms associated with cannabis control, such as the two reports just cited, strongly support the conclusion that the greatest harm associated with cannabis stems from its illegality and from the resulting involvement of cannabis users with criminality and the legal-judicial system. It thus seems axiomatic that a cannabis control policy based on harm reduction would require the removal of criminal sanctions on (at least) personal possession. That is, these studies rule out a policy of total prohibition without an expediency principle (i.e., without an administrative decision not to enforce the law, as in the Netherlands). This, of course, is New Zealand's present policy.

The question then becomes which of the remaining five options (outlined on the bottom of page 2) is most appropriate. As noted above, we believe that a policy of free availability (e.g., treating cannabis like caffeine) is insufficiently realistic to warrant discussion here.

Total Prohibition with an Expediency Principle

As noted in footnote 8, the Netherlands has since 1976 permitted the sale and purchase of small quantities of cannabis through a system of regulated coffeeshops. These activities remain technically illegal, but are covered under a term that means "illegal but permitted" -- that is, police put the lowest priority on enforcing these laws. Supplies of cannabis are obtained from a "grey market" consisting both of cannabis brought over international borders (illegally) and from quasi-legal sources inside Holland.

According to current information obtained from The Netherlands' official Ministry of Health internet website, the results of the Dutch policy have been quite positive(17):

In recent years [cannabis] use has once again been considerably higher in other countries (including the United States) than in the Netherlands. This is also true as far as use among minors is concerned. The decriminalisation which took place in the 1970s did not lead to an increase in the use of soft drugs among young people then either. The Dutch objective of protecting young adults who wish to use soft drugs at a certain stage in their lives from the world of hard drugs has also proved to be a realistic one. Only a very small proportion of the young people who use soft drugs make the transition to hard drugs. . . . The government regards the results achieved to date as grounds for continuing the principal elements of the pragmatic policy pursued up to now, which has been geared to controlling the damage done to health.

Recently, the Netherlands came under pressure from French president Jacques Chirac to re-institute cannabis prohibition. Although no serious consideration was apparently given to complying with this request, the law was changed to reduce the amount of cannabis one can purchase from a coffeeshop at one time from 28 to five grammes.

The extent to which a Holland-style coffee-shop model of cannabis control would suit New Zealand is an interesting and open question. From a harm-minimisation standpoint such a system would clearly be an improvement over present total prohibition policies. However, the reliance of the Dutch system on grey- market (or frankly illegally obtained) supplies of cannabis is suboptimal and probably not sustainable in the long term.

One substantial advantage of the Dutch system is that is has proved itself successful after more than 20 years of implementation. Moreover, the international community (with a few notable exceptions(18)), has generally come to accept the Dutch approach to cannabis control. The problem of "drug tourism" which has troubled Amsterdam and a few other Dutch cities would likely be substantially less in New Zealand due to its remoteness and lack of shared borders with other countries.

Prohibition with Civil Penalties

A policy of prohibition with civil penalties is technically not "decriminalisation", as that term is still often used in this context. Thus, someone who denies guilt or does not pay his or her fine will still have to be prosecuted through the criminal courts (or some analogous body). A civil-fine policy changes the way in which the law is enforced in many or most cases, but does not change the essential character of the prohibition.

Without much doubt the major advantage of a civil-fine approach is political, in that such systems have been in place in Australia, the United States, and Europe for many years. As such, adoption of a civil-fine approach in New Zealand would be relatively non-controversial, and indeed several MPs are on record as supporting a civil-fine approach, including the leader of the Labour Party, Helen Clark.(19) It might therefore be argued that a civil-fine approach ought to be implemented initially, if only as a "foot in the door". An alternative system could then be substituted if deemed indicated based on experience with the civil-fine approach.

On the other hand, it might also be argued that New Zealand should learn from(rather than repeat(others' experiences with civil-fine systems, which, as will be described below, have not been especially encouraging. Moreover, if a civil-fine system were implemented after much political turmoil it might take several years before politicians would be willing to revisit the issue (perhaps under the guise of "We've got to give the 'new' system a chance to work").

The major intrinsic (as opposed to political) advantage of civil-fine approaches is that low-level offenders are not burdened with a criminal record. Such an advantage is substantial, of course, although as observed in footnote 16 the extent to which a record of cannabis crimes burdens New Zealanders is unknown, and probably is not as great as in some other countries. Thus, the advantage to be gained from the civil-fine approach in this regard might be relatively small in New Zealand.

Another potential advantage of civil-fines approaches lies in reducing the cost of enforcing the cannabis law. However, several years' experience with such schemes in Australia has shown that they do not necessarily save money for the legal-judicial system,(20) and in fact can increase substantially the number of "cannabis crimes"(21) ( a phenomenon known as "net-widening."

Diversion Schemes

Net-widening probably affects most systems incorporating reduced penalties, including "diversion" schemes in general,(22) where offenders who are charged with (usually) relatively minor crimes are offered an alternative resolution to the charge which does not involved trial or the possibility of conviction. Such schemes are widely employed in Australia,(23) and have been used in New Zealand since 1989. Diversion programs often aim to obtain treatment for drug offenders;(24) in New Zealand, offenders accepting diversion are typically required to apologise and make reparation to their victims (if any), or to make a "contribution" to a public charity.(25)

The practice of diversion does not fit neatly into the taxonomy of cannabis control systems considered in this discussion paper. In particular, the terms under which offenders are discharged from the system vary considerably and do not amount simply to paying a civil fine. As such, diversion schemes differ from "classic" civil-fine systems, such as the Cannabis Expiation Notices system used in South Australia and the Simple Cannabis Offence Notice scheme in the Australian Capital Territory.(26) (27)

In a sense, diversion schemes are based on administrative expediency principles, and as such could be grouped with The Netherland's approach. Specifically, police exercise administrative discretion over who will be offered diversion and who will be prosecuted, and such discretion is motivated in large part by concerns of expediency.

However, this same discretion, while potentially useful when skillfully and impartially applied, can also be a source of unfairness if applied on a discriminatory or ad hoc basis. Consider the New Zealand Crown Law Office Prosecution Guidelines, in which it is noted that "It is of great importance that decisions to commence and to continue prosecutions be made on a principled and publicly known basis."(28) However, it is unclear whether any such "principles" have been made publicly known. Indeed, it appears that decisions about whom to offer diversion are made on a case-by-case basis.(29) This situation differs substantially from the administrative expediency principle operating in The Netherlands, where the rules regarding non-prosecution are relatively clear and uniformly applied. For this reason, and because diversion resembles civil-fine approaches in aiming to avoid exposure to the criminal justice system, it seems appropriate to classify diversion schemes with civil-fine systems.

Little is known about the outcomes of diversion schemes, including New Zealand's, with respect to the costs and time required of police and magistrates, satisfaction with the process of all involved parties, level of re- offending, and characteristics of offenders offered diversion. In particular, the possibility of differential application of civil-fine and diversion schemes is real and worrisome. As noted in the 1995 AIC report, almost half of those charged with minor cannabis crimes in South Australia failed to pay their fines,

therefore ending up in the criminal justice system anyway. Correspondingly, early results suggested that non-payers were more likely to be individuals of lower socio-economic status suggesting that the scheme is discriminatory with regards to some groups.(30)

Also,

On the basis of police data for 1993 and 1993/94, expiable offences appeared to comprise about 83% of cannabis offences; however, only about 45% of CENs were expiated. . . .It seems probable that poverty - inability to pay - is one reason for the low expiation rate.(31)

Probably the major drawback of both civil-penalty and diversion systems is that simply substituting civil or other penalties for criminal ones does nothing to reduce the size and harmfulness of the black market. The high profits available in illicit cannabis commerce would continue to draw entrepreneurs into that market. This is significant because many of the harms to young people associated with cannabis use stem directly from the presence of a black market.

It was primarily for this reason that the Victorian Premier's Drugs Advisory Council (DAC) rejected civil- fine approaches to cannabis control, recommending instead a system of partial prohibition.(32)

Partial Prohibition

As discussed above, a policy of partial prohibition would permit adults to possess up to a certain amount of cannabis and to cultivate up to some number of cannabis plants. Non-profit distribution amongst friends would be permitted, but sale for profit would remain banned.

The DAC appeared to consider partial prohibition as essentially equivalent to "partial regulation":

Council believes that strategies to reduce use and misuse are most likely to be effective if use of cannabis is no longer a criminal offence but is regulated in a number of important respects. Education and treatment will be facilitated by this change and respect for the law may also increase [emphasis supplied].

Recommendation 7.1 Use and possession of a small quantity of marijuana should no longer be an offence. 'Small quantity' should be defined as no more than 25 grams (half the amount currently specified in the Act). (Section 3.8).(33)

Recommendation 7.2 Cultivation of up to five cannabis plants per household for personal use should no longer be an offence. 'Household' should be defined to exclude everything other than private residences. (Section 3.8)

Recommendation 7.3 Sale of marijuana should remain an offence.

Recommendation 7.4 Provision for the Summary Offences Act 1966 should be reviewed to ensure offensive behaviour under the influence of marijuana can be dealt with by police. Similarly, local government should establish bylaws that restrict consumption in public places. Such bylaws would reflect current restrictions on alcohol consumption. (Section 3.8).

Recommendation 7.5 Legislation should be introduced to expunge all recorded convictions for possession and use of small quantities of marijuana. (Section 3.8).(34)

Like the DAC, the AIC appeared to favour a policy of partial prohibition in its 1995 report:

Many of the drawbacks associated with any legislation against personal use of cannabis would diminish under a partial prohibition regime. This move would save considerable law enforcement and criminal justice resources. It would avoid confusion about the legal standing of cannabis for personal use and avoid bringing the law into disrepute as a result of being flouted by so many. It would also remove a stigma of criminal (or even civil) convictions by otherwise law-abiding users; it would reduce their contact with criminals; and it would avoid possible discrimination during enforcement of legislation. However, it is likely that a significant proportion of users would continue to buy cannabis on the black market, which may be easier than cultivating their own or simply because they are familiar with doing so. But, this situation might be expected to lessen with the passage of time. In addition, this option would permit educational messages to be more easily communicated, both about the harms associated with use and about ways in which potential harm might be minimised.(35)

The extent to which partial prohibition would affect the black market and its associated harms is an important question. Limited data are available concerning the proportion of cannabis users who would elect to "grow their own" or who would procure their supply in the form of non-profit transactions among friends, if such were legal. Experience in Alaska suggests that a substantial black market has persisted despite a policy of partial prohibition.(36) The extent to which this experience is relevant to New Zealand is uncertain. Growing conditions are substantially superior in New Zealand compared to Alaska, and a greater degree of networking might be available for sharing "home-grown" cannabis than in sparsely populated Alaska.

A related concern with respect to the effect of policy changes on the cannabis black market must be raised at this point. The "shadow of illegality" hanging over many rural communities, including (and especially) Maori communities, almost certainly detracts from the well-being of those communities and of the individuals who live in them. Ironically, however, any decrease in the black market produced by home- growing throughout New Zealand might reduce income to communities currently dependent on black- market cannabis commerce. The potential impact on rural income of a regulated approach to cannabis control is discussed in the next section.

One theoretical disadvantage to permitting home cultivation while banning regulated sales could be that some users would be encouraged to consume more cannabis than under a regulated system. This could occur if people who want to try cannabis were to invest considerable time and effort into cultivating a crop, thereby making a larger commitment to that crop and ending up with a much larger supply than they'd have purchased -- possibly for years to come. Admittedly this concern is quite speculative, and it is likely that the AIC is correct in saying (quoted previous page) that many or most users would continue obtaining their supply through the black market.

Limits on Personal Cultivation

Recent governmental reports recommending policies of partial prohibition, including the Victorian Premier's Drug Advisory Council(37) have advocated limits of five cannabis plants under cultivation and possession of 25 grammes of finished product at a given time.

At the time of this writing (July 1997), the Australian federal government is developing an Australian Model Criminal Code to reconcile substantial differences in criminal law provisions among the nine State and Territorial jurisdictions. As part of this process, the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General has prepared a substantial (411 page) discussion paper(38) which deals primarily with large-scale drug cultivation and trafficking. The Committee is currently seeking submission concerning, among many other issues, the problem of how to define "traffickable quantities" of cannabis.

In preparing to address this issue in a submission on the discussion paper, the Australian Drug Law Reform Foundation (ADLRF) sought input from knowledgeable individuals on the internet concerning this question. This request produced several responses, from which the following three have been selected for quotation:(39)

Peter Watney wrote:

> We are hoping that some of you will be able to advise us on quantities of cannabis plants it would be reasonable for a moderate recreational user or a medical user to have in cultivation who cultivated plants purely for his or her own personal use.<

Unfortunately, it's sometimes hard to make such a distinction based solely on the number of plants. For example, some people I know grow 3 or 4 plants in a closet for personal use, letting them get quite big so they produce in total about 1/4 pound. However, others I know that also grow for personal use prefer to grow more plants and keep them smaller; they may grow 20 small plants in a closet, and still end up with around 1/4 pound each time.

If it must be quantified, perhaps 10 or 12 plants would suffice. Most commercial growers plant at least several dozen plants, but usually several hundred or even several thousand.

This is a more difficult question than one might suppose due to all the variables involved. I smoke pot daily for medical reasons and have used recreationally for about 20 years. Because I use medically and recreationally, the line is blurred in my case. Without going into all the variables, something I would be glad to do if it is helpful, 5 plants a year, grown outside, would be a great plenty for me as long as a freezer were available for storage. If grown indoors, 10-15 plants, twice a year, would produce about the same amount of pot. I use 1 to 3 ounces per month, depending on the plant potency and whether I smoke it or make brownies or cookies.

For law enforcement purposes, in a one size fits all bureaucratic model, 5 plants under cultivation at any one time, should work fine and would factor in the growing season. You could get one crop per year outside and 3-4 crops a year inside. The total annual yield would be close to the same in terms of total weight.

I have written two best selling cannabis culture books in Canada, Grow Your Own Stone 1973, and A Treasury of Hashish 1976, as well as acting as director of research and public policy at the Hemp Futures Study Group, established 1978 to help introduce Industrial Hemp into the legal farm menu here in Canada. My ideas are frequently if nefarically sought after by Government and private sector groups hoping to advance Canadian Drug Policies or reform legislation already in place.

In Grow Your Own Stone I prepared and included a mock licence application to obtain a cultivation permit from the Dept. of Health. This was taken very seriously, and thousands of requests arrived at the Health Canada offices. The main point in my application agenda was the idea of a maximum of 8 growing mature female plants....This number is the informal limit that the Canadian police subsequently now use to establish intent when they raid growing marijuana plants and seek convictions for personal cultivation as distinguished from clearly commercial intentions.

I calculated the threshold of 8 plants based upon the reasonable expectation of harvesting about 100 grams of smokable material per plant, for a total of 800 grams....more than enough for a private smoker and their circle of friends, yet not enough to generate a surplus for trafficking. Curiously, a skilled hand can coax more than 800 grams of material, and many people find it more suitable to devote time and space to cultivate about 4 specimen plants, but to do them better service to create somewhat less material, but it is of a more satisfactory quality.

Not everyone is a skilled agronomist, and this model may be considered..

A) A permit holder may purchase, at a registered Government green house up to a maximum of 8 plants grown under secure conditions, from certified varieties of psychoactive strains of Cannabis sativa. These plants may be sold for up to $25 each.... this high initial cost separates the sincere private citizen from the opportunist. Each plant will be affixed with an Identification tag that must not be removed during the time of active growth, and must be retained after harvest for inspection if required. . . .

B) It will remain, strictly forbidden....
- to sell any licenced marijuana
- to provide any licenced marijuana to minors
- to export any licenced marijuana outside the country
- to obtain a permit under false pretences
- to fail to comply to specified standards
- to divert any licenced cannabis material for oily concentrate
- to make clones from licenced plants for illicit propagation.

C) The sale of tagged certified cannabis plants from Government inspected greenhouses will likely generate sufficient revenues to pay for the entire permit programme as well as providing funds to research horticultural and health studies pertaining to the recreational use of the Cannabis plant. Top quality, high yielding potent strains of cannabis, offered by certified government agronomists will soon crowd out the contraband gardens that will not be able to compete with the legal offerings. The rather high initial prices for tagged Govt. specimen plants are necessary to ensure success of the program. As time passes, and the prices can justifiably held at these levels, illicit cultivation will wane as the legal offerings become established as the best buy for the money.... with the added bonus of directing funds to the tax coffers that would otherwise be absorbed by the criminal element.

Despite the apparent consensus among governmental commissions and policy analysts in favour of establishing limits on personal cultivation, potentially serious logistical and philosophical problems would complicate such a policy. Most obviously, how should whatever limits are selected be monitored and enforced? Without resorting to intrusive police tactics, it is likely that the only feasible approach to enforcement would be to foster an ethic in the cannabis-consuming community to the effect that the reformed system of cannabis control deserves loyalty and respect( recognising that the alternative is continued (or re-instated) prohibition. The system would presumably foster the "dobbing in" of cheaters by offended citizens, just as tax cheats might be. Whether such a system of self-enforcement would be effective is uncertain, at best.

In addition, it is not difficult to conceive of problematic situations. For example, an individual who harvested a cannabis crop on behalf of himself and friends might well temporarily possess more than the stipulated limit until s/he distributed the crop amongst the friends. There is also the problem of determining how many plants under cultivation will in fact yield useable cannabis. Only the female plants are generally considered useable, and of these some will fail to mature for a variety of reasons. How many plants in total are needed to ensure five (or whatever number) mature female plants? There are no easy answers to such questions.

A further problem with imposing limits on personal cultivation concerns a fundamental tenet of law involving sale of goods. Uniformly, the passage of goods and the passage of some return value must be proved: A provided 20 widgets to B and B paid A $20 in return. On the other hand, a cannabis law might say that because A has 6 cannabis plants, A intends to sell them for a profit. There is no need to identify or produce B, nor to prove the passage of the goods, payment for the goods, whether there was a profit from the sale, or even that there is an intention to sell. All of these factors are "proven" by the mere existence of (say) 6 plants. This seems problematic. At the least, additional evidence of intent to sell (for profit) would seem necessary before charges would be laid. On the other hand, there is surely some number of plants above which the intent to sell for profit can reasonably be inferred.

It can be seen that the problem of specifying limits on personal cultivation is a significant one for systems of partial prohibition. Similar difficulties arise in the context of a regulated system where personal cultivation is also allowed.

Regulation

As noted above, a regulated system would treat cannabis much like alcohol or tobacco. Growers would be licensed by a cannabis control board, which would also be responsible for taxing, labeling, purity/potency checks, and administering the system. A distribution system similar to cigarettes would carry cannabis into licensed outlets, such as pubs(40) or in adults-only coffeeshops, as in Holland. Advertising would presumably be banned, and health warnings placed on the package labels.

The potential of a regulated approach to harness the financial power of cannabis commerce, i.e., through taxes, is an attractive feature . Informal estimates of the value of New Zealand's cannabis crop exceed $1 billion NZD annually. Although this estimate is probably substantially inflated (especially taking into account the price drops that would result from removal of black market incentives), potential tax revenues would still likely be in the range of tens of millions of dollars per year (assuming a 10-20 percent tax rate). A tax rate would need to be selected that balanced the need to undercut the black market (by keeping taxes relatively low) against society's interest in discouraging excessive cannabis use (by keeping taxes relatively high).

Probably the greatest advantage of a regulated system is that only via regulation is the black market in cannabis likely to be severely reduced or eliminated. As is often noted, schools are rarely troubled by black marketeers attempting to sell alcohol or tobacco at (or near) schools. This is not to say that gangs and other forms of organised crime would simply disappear, of course, and indeed they would likely turn to other forms of criminal activities to replace the lost revenue in trafficking in cannabis. Nevertheless, by removing this important source of black market income the power of gangs over young people would in all likelihood be substantially reduced.

A further argument in favour of a regulated approach is that quality and potency can best be controlled through governmental regulation.(41) Moreover, regulation provides Government with substantial control over terms of sale and related activities."(42)

Regarding drawbacks to a regulated approach, the 1995 AIC report cautioned that under a regulated system "greater visibility of the drug in retail outlets may act as an effective form of advertising, exposing more people (in particular, more young people) to the temptation to experiment."(43) However, if the sale of cannabis were restricted to adults-only venues (e.g., designated coffee shops) this problem would probably be manageable. Moreover, cannabis is already widely available in schools. It seems unlikely that the availability of cannabis to adults in adult-only venues would substantially increase young people's propensity to experiment (which is more often due to peer pressure and a desire to demonstrate rebelliousness).

What impact would a regulated approach have on rural (often Maori) communities? In the previous section it was argued that partial prohibition might reduce income to these communities by virtue of reducing the black market. A regulated system, in contrast, could benefit rural communities insofar is it would cut out much of the profits currently taken by urban distributors, who buy from the farmers in large quantities and sell in the towns and cities in small quantities.(44) A regulated approach might therefore return proportionally more income to the communities.

However, if cannabis prices fell substantially below current black-market prices, total community income could remain stable or even drop.(45) There is therefore considerable uncertainty surrounding the question of what impact either partial prohibition or regulation would have on Maori and other rural communities. What is certain is that in a regulated environment these communities would be free of the stigma of criminality associated with a principal farming commodity, and would be able to compete in (what would become) a "white market". Also, the impact on Maori communities of moving away from a policy of total cannabis prohibition depends on much more than economics. In this regard, it is vital that input be obtained from Maori communities concerning the likely effects of various systems of cannabis control on Maori health and well-being.

The major drawback to a regulated system is likely to be political. No other country has adopted a system in which cannabis is regulated and taxed like alcohol or tobacco; the Netherlands' approach comes closest. Partial prohibition, on the other hand, has been tried with success in other countries. Whether New Zealand's propensity for social innovation and pragmatism could permit trialing a regulated system of cannabis control as part of a "social experiment" is perhaps unlikely in view its basic conservatism on drug issues.

Personal Cultivation in a Regulated System

If a regulated system were adopted, should personal-scale cultivation also be permitted? Continued small- scale growing could be viewed as equivalent to "home brew" beer or small-scale wine making. Dale Gieringer has studied this question:

[E]xperience shows that it is no easy task to track down and regulate marijuana growers. More so than alcohol or tobacco, marijuana lends itself easily to small-scale home cultivation and production. The problem therefore arises as to how to treat home cultivation in the legal market. Clearly, the [for-profit] sale of untaxed home marijuana must be banned. In theory, home cultivation could also be taxed and licensed in order to maintain high prices. However, it seems unlikely that such requirements could be enforced in a world of legalized marijuana. The policing of home growers would appear to require many of the most odious and objectionable techniques of current marijuana enforcement, such as helicopter surveillance, snooping on homes and spying on garden stores.(46)

From a practical perspective it likely that the best approach would be to permit a certain level of personal level cultivation by adults. This raises the question of what limits might be placed on the number of plants one would be permitted to grow, as discussed above.

International Treaty Considerations

Two international treaties are relevant to the discussion of cannabis policy: the Single Convention on Narcotic Drugs 1961(47) as amended in 1972, and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention).(48) As the name of the latter treaty suggests, the Vienna Convention is primarily concerned with international trafficking, whereas the Single Convention restricts the domestic cannabis policy of signatory nations. As such, the Single Convention (to which New Zealand is a signatory) is the primary potential obstacle to changes in domestic cannabis policy.

Article 36 of the Single Convention requires signatory nations to make possession and use of cannabis,(49) "cannabis resin (hashish), and "extracts and tinctures of cannabis" (among other drugs) an offence:

. . . each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally.(50)

Use and commerce in drugs covered under the Single Convention are to be restricted to "scientific and medical purposes".

Although this particular clause seems rather black-and-white, the treaty as a whole provides considerable room for varying interpretations. As noted by a 1979 Canadian Department of Justice report

The deliberate vagueness of some critical treaty provisions and the discretion permitted each party allow for a considerable variety of cannabis control regimes. As one official of the United Nations Division of Narcotic Drugs has recently written: "the treaties are much more subtle and flexible than sometimes interpreted." (Noll, 1977:44).(51)

One major question to be addressed is whether the provisions of the Single Convention concerning cannabis possession are aimed at small-scale personal use or, alternatively, large-scale (even international) trafficking. No less an authority than Adolf Lande, who served as secretary of the UN Permanent Central Narcotics Board and the UN Drug Supervisory Body, and who was also one of the main drafters of the 1961 Convention, wrote that

the term 'possession' used in the penal provisions of the Single Convention means only possession for the purpose of illicit traffic. Consequently, unauthorized possession and purchase of narcotic drugs including cannabis for personal consumption need not be treated as punishable offences or as serious offences".(52)

Similarly, the official Commentary on the Single Convention on Narcotic Drugs 1961, prepared by the Office of the UN Secretary General, states that whether personal use of drugs requires imposition of penal sanctions "is a question which may be answered differently in different countries."(53) The same commentary proceeds to note that those nations that do interpret Article 36 as requiring a legal approach to personal use

may undoubtedly choose not to provide for imprisonment of persons found in possession, but to impose only minor penalties such as fines or even censure [since p]ossession of a small quantity of drugs for personal consumption may be held not to be a "serious" offence under article 36 . . . and only a "serious" offence is liable to "adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.

Further, as noted by Noll, a senior legal officer of the United Nations Division of Narcotic Drugs, the requirement that Parties limit the use of drugs to medical and scientific purposes does not require them to "attain that goal by providing penal sanctions for unauthorized 'use' or 'personal consumption' of drugs."(54) Noll also points out that the "whole international drug control system envisages in its penal provisions the illicit traffic in drugs; this also holds true for the 1972 Protocol."(55) (Emphasis in original.)

An explanation for the apparent contradiction between these interpretations and the language found in Article 36 (s-para 1-A) is provided by Smith.(56)

Governmental commissions on cannabis control have arrived at divergent opinions on the question of whether the Single Convention requires signatory nations to ban personal use of cannabis. The Williams Royal Commission(57) concluded in the affirmative, as did the Canadian LeDain Commission.(58) However, the 1978 Sackville Commission report concluded that

the Convention does not require signatories to make either use or possession for personal use punishable offences, although the creation or retention of such offences would be consistent with the treaty. This is because 'use' is not specifically covered by Article 36 and the term 'possession' in that Article and elsewhere can be read as confined to possession for the purpose of dealing.(59)

Similarly, the U.S. National Commission on Marihuana and Drug Abuse took the view that "the word 'possession' in Article 36 refers not to possession for personal use but to possession as a link in illicit trafficking."(60) The Commission concluded that measures such as "an educational program and similar approaches designed to discourage use" could be employed to meet treaty obligations.(61)

The 1972 Protocol added a second subparagraph (s-para 1(b)) to Article 36, paragraph 1. This provision reads:

Notwithstanding the preceding subparagraph [quote above], when abusers of drugs have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social reintegration. . . .

The official Commentary emphasises that these alternatives to punishment for the offences listed in Article 36 s-para 1A can be instituted "no matter how serious that offence may be."(62) This provision reinforces the more permissive interpretations of the treaties described above.

The authors of 1994 AIC report appear to take the position that only free availability is ruled out by international treaties,(63) permitting both a policy of partial prohibition and a regulated approach. The Victorian Premier's Drug Advisory Council took the position that partial prohibition was permitted under the treaties, but recommend further study of the matter.

While there are diverging legal opinions about what the conventions require, the Queensland Criminal Justice Commission concluded that legalising possession of cannabis for personal use would be outside convention terms (Criminal Justice Commission, 1994). . . . Another view is that the combined effect of the conventions preclude only one option: legalisation or total deregulation of drugs (Woltring, 1990). . . . Internationally, parties to the conventions have a variety of approaches for dealing with cannabis ranging from 'administrative' decriminalisation in the Netherlands, to decriminalisation at different times in Italy and Spain.(64) Council is not aware that any action has been taken against these regimes.(65)

A few other provisions of the Single Convention have received attention in the cannabis policy debate, including paragraph 3 of Article 28, which states that "The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant."(66) Similarly, Article 22 of the Single Convention reads as follows:

In all cases in which, in light of the circumstances prevailing in the country or area of a Party, prohibition of the cultivation of the poppy plant, coca plant or cannabis plant is, in the view of that Party, the most appropriate measure for protecting public health and welfare and to prevent the narcotic substances from finding their way to illicit trafficking, the Party involved can prohibit cultivation.

A reasonable interpretation of these clauses is that if a country decides that a system other than prohibition is most appropriate for protecting public health and welfare and for deterring illicit trafficking, that country is not obligated by virtue of the Single Convention to maintain a prohibition policy. It is for this reason that the Oregon Cannabis Tax Act, a citizen referendum slated for a vote in 1998, makes frequent reference to the fact that the proposed new system of cannabis control (regulated, taxed, and sold through state-run liquor stores) is being put in place for the express purpose of "preventing the misuse of, and illicit traffic in" cannabis. In addition, the text of the Act amply details why prohibition increases both misuse and (almost by definition) illicit traffic.

Along similar lines, Article 2(5) requires that:

(a) A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and

(b) A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials herewith to be conducted under or subject to the direct supervision of the Party.

As noted by the 1994 AIC report, "It must be emphasised, however, that Article 2(5) is not mandatory. Rather, special measures of control can be imposed if, in the opinion of the Party, they are 'necessary' or 'appropriate'."

Our reading of this complicated literature, and of the treaties themselves, leads us to conclude that a policy of partial prohibition, as defined above, would certainly be considered by most authorities as being in compliance with international treaties. On the other hand, a policy of regulated commerce would find less support among a majority of authorities. However, the authoritative interpretations of the Single Convention described above would appear to permit a system of regulation and control.

In particular, if New Zealand were to notify the United Nations that, after careful study, it had determined that a regulated system of cannabis control were necessary to reduce both public harm and illicit trafficking, it seems unlikely that such an announcement would be condemned (except, perhaps, by the United States). To clarify matters, and as permitted by the Single Convention, New Zealand could propose an amendment to the treaty,(67) perhaps along the lines of "Notwithstanding any other provision, a regulated system of domestic cannabis control shall not be deemed impermissible, provided due care is taken to prevent international trafficking."

As described earlier, only regulated commerce in cannabis is likely to substantially reduce or eliminate the black market. Moreover, rural (and perhaps particularly Maori communities) would likely be disadvantaged by partial prohibition. It seems inappropriate for countries to be forced by international treaty to foster black markets within their borders, especially if doing so serves to disadvantage native populations.

Such concerns have been raised increasingly, including by the AIC:

An important question to be answered is whether Australian drug laws, so long dominated and directed by influences beyond our shores, and so little attuned to Australia's own circumstances, should continue to be determined externally. As cautious an inquiry as the Williams Royal Commission commented, in relation to the Single Convention, that the spirit and intention of the treaty was 'a secondary matter in the sense that Australia must first decide what is the correct domestic policy and then shape its international course accordingly' (1980, pC263).(68)

Similarly, the Victorian Drugs Advisory Council discussed with concern the restrictions imposed by international treaty restrictions, particularly with respect to cannabis:

In Australia and other countries, there is concern about the impact of the treaties on policy flexibility. The debate on the legal status of cannabis and the most effective way to reduce its use and misuse is perhaps the most visible focus of concern.(69)

Analogous concerns could be raised in the New Zealand environment. International involvements should not dictate domestic policy.