Monitoring the South Australian Cannabis Expiation Notice Initiative

Abstract

In 1987, a Labor government in South Australia made widespread changes to laws concerning possession and use of small amounts of cannabis. At the time of the introduction of the new legislation, because of not inconsiderable media and other attention being paid to law enforcement data on the controversial "on-the-spot" scheme, the government gave an undertaking that the new approach would be monitored and results published. Despite problems with the lack of long-term survey data on patterns and trends of drug consumption in Australia, and the fact that only limited research resources were available, the Office of Crime Statistics undertook a study of the critical first nine months of the new procedures. Monitoring the new system provided Parliament and the public with the opportunity to assess operation of the new procedures and to gauge whether there had been consequences not anticipated when the legislative changes were made. Full results of the study are in Cannabis: The Expiation Notice Approach released in South Australia in September 1989 (Office of Crime Statistics 1989). This article reproduces parts of the report and provides an update on an attempt in 1990 by the South Australian Opposition party to repeal the scheme.

Introduction

Release of the Office of Crime Statistics' report (1989) coincided with publication of findings of the Fitzgerald Commission of Inquiry which had examined police improprieties in Queensland, many of them related to enforcement of drug laws. Commissioner Fitzgerald's report made the following observation:

Attempts to stamp out the illegal drug trade have failed all over the world and have consumed more and more resources. There is no benefit in blinkered thinking. The starting point must be an acceptance that illegal drugs are established in the community and that the prohibition has not worked. Orthodox policy is quite unable to enforce the law. Priorities must be established for the use of the [limited] available resources. One thing is certain: the conventional method of giving the job to the police, on top of all their responsibilities, has failed all over the world and a new approach is needed (quoted in Marks 1990:65).

The South Australian cannabis expiation notice experiment, then, was timely.

The legislative vehicle, which put in place South Australia's new approach toward a range of cannabis offences, was a new section - 45a - inserted into the Controlled Substances Act (SA) 1984. Read with the Controlled Substances (Expiation of Simple Cannabis Offences) Regulations, it introduced the Cannabis Expiation Notice (CEN) system, and defined the offences affected by the new procedures.

One of the principles underlying the expiation notice approach was that distinctions between private consumers of cannabis and large-scale operators should be strengthened. Section 45a(2) provided for the issuing of notices "on-the-spot" to adults alleged to have committed a "simple cannabis offence." Simple cannabis offences included possessing up to one hundred grams of cannabis or twenty grams of cannabis resin, cultivating up to one thousand seedlings or plants, smoking or possessing cannabis or resin in private and possessing equipment to assist use or consumption. None of these activities could be prosecuted in court ("an expiation notice must be given to an alleged offender") unless the recipient of the notice had failed to pay the "prescribed expiation fee" within sixty days.

Despite introduction of the notice system, the Controlled Substances Act continued to provide severe penalties for non-expiable cannabis offences - in fact penalties increased. Possession of one hundred grams or more of cannabis, or twenty grams or more of resin, now would deem an offender (unless the court could be satisfied to the contrary) to be a "small scale" dealer to whom penalties of up to $50,000 and ten years imprisonment could apply. Persons with more than one thousand growing plants, one hundred kilograms of cannabis or twenty-five kilograms of resin would be deemed "large scale" traffickers and face a fine of up to $500,000 and twenty-five years imprisonment. The act also continued to proscribe the production, sale or supply of cannabis - regardless of amount - in circumstances where a court was satisfied that the offender had been engaging in "commercially" oriented activities.

Even within the framework of "simple cannabis offences" and large and small scale trafficking, moreover, there are complexities. Expiation notices were not to be issued to juveniles (that is, people under eighteen years at the time of the offence) who generally are still required to appear before a Children's Court or Aid Panel. Consumption of cannabis in public (including use of cannabis in a vehicle parked publicly) is not expiabIe and rendered an offender liable for a fine up to $500.

Generally, however, the government's legislative policy sought actively to distinguish between serious and minor drug offences. Some commentators contend that South Australia has "decriminalised" minor cannabis offences and indeed this term has begun to appear in literature describing the CEN system. Use of the term "decriminalisation," however, can be deceptive. In the United States it has been used to signify a range of things: that imprisonment has been abolished as an option for the least serious cannabis offences; that a defendant will not be taken into custody pending trial; and that no enduring criminal record relating to the offence will be maintained. In South Australia the term "decriminalisation" may imply in the public mind that small scale cannabis possession, cultivation or use no longer are criminal offences. That is not strictly the case - although there is some ambiguity in that section, 45a(5) specifically notes that payment of the expiation fee is not an admission of guilt. One legal writer therefore has preferred to use the term "civil offence" (Carney 1987:136-6).

Perhaps the best summary from a legal point of view is that the South Australian government embarked upon a prosecution policy which deemphasised the criminal status of small scale cannabis use but stopped short of decriminalising it.

The Office of Crime Statistics initiated two studies. The first was to ensure that plotted trends in the issuing of CENs were accurate, and that there were valid comparisons with data on offences detected under the previous provisions. Because numbers of detected cannabis offences can fluctuate sharply, a mathematical model was developed to assist this work.(1) Short-term and longer-term series were analysed. The short-term data related to all cannabis offences detected between May 1985 (when a Controlled Substances Act first was introduced) and January 1988 (nine months after CENs had become effective). Long-term data were taken from South Australian Police Department reports for the period 1971-87. The results provide the basis for an authoritative statement on whether trends and patterns in detected offences did, in fact, alter after the CEN system was introduced.

The second study was designed to cast light on the meaning of changes (if any) in detected cannabis offence trends. Previous analysis of law enforcement data (Office of Crime Statistics 1983) had shown that drug offences reported or becoming known to South Australian police rose significantly throughout the 1970s and early 1980s, without there being any evidence that consumption had risen to the same extent, or that the profiles of users had altered. A more plausible hypothesis simply was that shifts in law enforcement organisation and procedures had resulted in comparatively minor drug offences being more intensively policed. 7be CEN system had potential to alter the intensity of drug law enforcement. The office needed independent data to help assess whether this was occurring.

To overcome this problem, the second study collected profiles from police department files on the two groups of people whose offences were detected in corresponding nine-month periods before and after the CEN system was introduced. The principal unit of analysis was the offence report.(2) By comparing gender, age, occupation and other characteristics of these individuals, and contrasting their profiles with what research has suggested about the backgrounds of cannabis users in general, researchers hoped to be in a better position to assess what, if anything, changes in police figures might mean. Only if the police offender data was broadly consistent with known findings on the demographics of cannabis users would it be at all plausible to argue that shifts in the figures mean that the extent of cannabis use itself had altered. If, on the other hand, persons issued with CENs were a very atypical minority of cannabis users, a change in detected offence trends was more likely to be an artifact of enforcement policy.

Collection of these nine-month "before" and "after" profiles also allowed two other issues to be addressed. By comparing the locations of offences detected under the CEN system and the previous provisions, the Office of Crime Statistics evaluation could provide information of some relevance to the oft-made suggestion that CENs would encourage use or possession of cannabis in "sensitive" locations, such as school playgrounds. By comparing the rates at which people were being apprehended on second and subsequent occasions, the office also could monitor whether the CEN system was being less effective in discouraging "recidivism." (3)

Findings From the Long-Term and Short-Term Studies

The report of the Office of Crime Statistics details the findings from the study. In summary, the rate of police detections of minor cannabis offences continued to rise under the cannabis expiation system. However, the rate of increase (I I % p.a.) was less than the long-term rate of increase (25 % p. a.) which had applied over the previous thirteen years of the former legislation, and was less than the rate (16% p.a.) which applied during the first two years of the Controlled Substances Act (Figure 1). Little significance was attached to this apparent slowing down in the rate of increase in detected cannabis offences because rates were all well within normal range of variability apparent during similar short periods over the preceding fifteen years. It seen-is unlikely that trends in detected offences had any direct relationship with the introduction of the scheme: any change in figures is more likely to be indicative of the ease with which cannabis offences can be dealt with by police officers.

Findings From a Study of the Profiles of Offenders

Data collected indicated remarkable consistency in profiles of offenders detected before and after CENs were introduced (Table 1). Both groups, however, showed marked dissimilarities with user survey data. In particular, far fewer females appeared in police statistics than should have been the case if these figures were representative of actual consumers. The "detected offender" data also contained an apparent disproportion of Aboriginal people, people with criminal records and lower status (particularly unemployed) cannabis users. In light of these findings it seems that, as appears to be the case in the United States, current and future trends in detected offences in South Australia are unlikely to bear a strong relationship to actual cannabis use or possession in the community.

Findings also failed to support claims that there had been an increase in the detection of cannabis use or possession at "high risk" locales, such as schools. Nor did they support concerns that rates of re-detection had increased as a result of the CEN scheme.

Preceding paragraphs indicate that trends in detected offences and profiles of offenders did not provide support for the claim that introduction of the CEN system would lead to increases in cannabis consumption among "at risk" groups. Further evidence to discount such a hypothesis is provided by yearly surveys by the Drug and Alcohol Services Council (Neill, Christie and Cormack 1991) on self-reported alcohol and other drug use among South Australian school children. The surveys, conducted each year from 1986 to 1989, indicate that the percentage of students who ever had used marijuana remained relatively stable over the four years. So too has the proportion of students - less than 6% - who report using marijuana on a weekly basis.

Technical and Law Enforcement Concerns

Prior to the introduction of CENs, some critics argued that the system would be impossible for law enforcement officers to administer. In particular, there were suggestions that the police could

• find it difficult to prosecute individuals dealing in small quantities of cannabis.
• face problems in verifying the identities of offenders.
• be confronted with problems in locating offenders if the expiation fee was not paid.

From the outset, it was clear that statistical data on the initial nine months' operation of CENs could not provide a basis for conclusive answers to all these questions. At the completion of the project, however, the office solicited a formal submission from the police department on whether practical problems had been experienced. With the exception of one issue - discussed below - the department did not identify any major difficulties. In particular, extraordinary expenditure on additional equipment to weigh and seal exhibits had not proven necessary. Generally, it seemed that introduction of a CENs system did not generate the technical and law enforcement problems that some critics had anticipated.

Net Widening

Studies of alternatives to formal prosecution often have found that they can give rise to an actual increase in the number of people and range of behaviours subject to some kind of social control. One of the concerns of the researchers in the CEN study was to determine whether or not the legislation had precipitated this "net widening" effect.

Generally, data collected in the course of this study indicated that offenders detected by police since CEN continued to be an unrepresentative sample of total users, and that disadvantaged groups - particularly unemployed people - were significantly over-represented. However, because there had not been any change in the characteristics or size of the group of cannabis users detected by police, it did not seem that net widening had occurred. It was noted, however, that nine months is not long enough to be confident that this will not take effect in the longer term.

Introduction of CENs did have some outcomes that were not anticipated. One matter of concern identified in interim reports (Office of Crime Statistics 1987a, 1987b) was a requirement under the scheme as originally introduced that an expiation fee could only be accepted if the offender was willing to expiate all matters on the notice. In other words, a person cited for several CEN offences could not dispute one and pay the others. All charges on the notice either would have to be paid or the entire notice would have to be taken to court. Once this problem was identified there was general agreement that it was unsatisfactory. Accordingly, a "General Expiation Notice" was introduced on 1 August 1988 and relevant instructions in the Police Commissioner's Office Circular No. 476 were amended to ensure that each notice could contain details of only one expiabIe offence.

Even though this specific difficulty has been rectified, however, concern still remained with the authors of the report that a CEN system pressures recipients who believe they are not guilty into paying fines rather than contesting the matter. People who decline to pay a CENs amount are confronted with several risks. Defending the charge may involve payment of a solicitor's fees, as well as the possible trauma and even stigma associated with a court appearance. If found guilty, the defendant faces court fines (which may be similar to or higher than expiation fees), a "victims of crime" levy (four times the amount for an expiated offence) and the possibility of incurring a criminal record. To some extent, of course, these problems are inherent in any system which allows expiation in lieu of a court appearance. Nonetheless, the authors argued there may be a case for closely assessing options which would make it less risky for CEN recipients who believe themselves not to be guilty to defend the charge. One such option would be to amend the law to provide that there be no conviction recorded in the event that a person who contests a CEN is found guilty.

Another possibility is the introduction of a prosecution policy that would allow non-expiators to "opt out" of appearing in court. In this event, as Marshall (1985:146) explains, failure to pay does not lead to prosecution unless the accused actively opts for a trial. In other words, his or her acceptance of guilt is assumed, and debt enforcement procedures are initiated immediately. This would have the effect of reducing the likelihood of non-expiators incurring prosecution costs and higher victim levies. The difficulty with this option, however, is that it assumes that people who wish to plead not guilty are exceptional. Such a scheme would have to undergo careful assessment from a policy point of view prior to its introduction.

Further, in reviewing unintended consequences, it was noted that the nine months of CENs had confirmed that people detected possessing or using small amounts of cannabis continued to be drawn from lower socioeconomic groups, and that low-income people figured disproportionately among those prosecuted after failing to pay expiation fees. One objective in introducing an expiation system was to make the law bear less heavily on disadvantaged groups and to ensure that persons committing simple cannabis offences should not be penalised by incurring a criminal record. The authors therefore argued that serious consideration should be given to increasing publicity about the benefit of paying expiation fees rather than being prosecuted. This may lessen the impact of these laws on the disadvantaged.

When CENs was introduced, it was anticipated that this would bring about a significant decrease in defendants appearing before Courts of Summary Jurisdiction. Data from the initial nine months did not indicate that this was likely to be the case. Of notices resolved, nearly half (45%) still were going to court because of failure to expiate. The report, therefore, argued that unless significant effort was made to increase the rate of expiations, the impact of CENs on court workloads may not be significant.

In March 1990 two bills came before the South Australian Parliament: the Controlled Substances Act Amendment bill (sponsored by the opposition), and the Controlled Substances Act Amendment bill (No. 2 sponsored by the deputy premier). Both sought to modify the existing Controlled Substances Act, with the former seeking to do away altogether with the expiation notice system. In introducing the Controlled Substances Act bill, the opposition sought to repeal section 45a and replace the penalty for simple cannabis use with a maximum fine of $500 and a conviction. It also sought to lower to one-tenth of current levels the quantity limits for cannabis production and supply beyond which the most severe penalties could apply. 'Me goverment supported the second of these objectives, but rejected the repeal of the expiation notice system. The bill passed the House of Assembly(4) and the Legislative Council(5) in this form. Thus, the expiation system remained intact although other aspects of the legislation changed.(6)

The Controlled Substances Act Amendment bill (No. 2) was introduced by the government to clarify definitions in the Controlled Substances Act, and to recast penalty provisions in section 32. The bill passed the House of Assembly and the Legislative Council with much debate on fine detail, but with little disagreement on ultimate objectives.

Much of the debate surrounding introduction of the CEN scheme concerned its alleged potential for increasing the extent and frequency of cannabis possession and use. Definitive answers on this issue would have required access to long-term survey data on patterns and trends in drug consumption. No jurisdiction in Australia can provide this type of information.

However, it can be stated unequivocally that introduction of CENs did not lead to any immediate change in the rate of detection of simple cannabis offences or in the type of people detected possessing or using cannabis. Nor do the study or surveys of use patterns among school age populations in South Australia provide support for claims that introduction of an enforcement notice approach encouraged previous non-users to experiment with cannabis.

Data assembled established conclusively that police figures on detected cannabis offenders are not representative of cannabis possession or use in the general community. Trends in law enforcement data should not be used as a basis for arguing that the incidence of these activities in broader society or among specific sectors has changed. Careful compilation and assessment of police figures on CENs in the first nine months in fact indicated that there was no increase in detections either generally or among "at risk" groups such as young people. Even if enforcement figures do alter in future, the study provided enough evidence to believe that factors other than a real shift in the extent of drug possession or use are likely to be responsible.

The study also reviewed rates at which particular offenders were re-detected, and assessed its potential for "net widening." It is on these issues that it is particularly difficult to draw lasting conclusions from a nine-month study. However, the data, as well as a police department submission, did not indicate that the CEN system was being flouted by frequent users or exploited by small-scale traffickers. Nor was there any immediate evidence of net widening effects.

Specific recommendations of the study were that:

• The level of non-expiation of offences should continue to be monitored and that efforts be made to increase expiation rates if the proportion of cases going to court remained high.
• The net widening potential of CENs should continue to be monitored over a longer study period.
• Legislators should consider removing the possibility of a court conviction for a simple cannabis offence that had not been expiated and should assess ways of further reducing the risks associated with defending a CEN.

Perhaps the most important conclusion of all, however, was that if the community is genuinely interested in trends in cannabis use and possession, alternatives to existing data collections should be established. Trends in cannabis use among the general community cannot be inferred from police data. Indeed speculation from law enforcement figures can only be unproductive and unhelpful.

2. Full details of the model, developed by Mr. Tim Pulsford, are in Office of Crime Statistics (1987b). 

3. An offence report is completed whenever somebody is charged with an offence. Where one person is charged with several offences at the same time, normally all offences are on the same report. While files of almost seven thousand offenders were accessed, for technical reasons researchers were able to code only 90% of the relevant police reports during the two periods.
   
4. The authors acknowledge that statements concerning the most frequent locations of cannabis offences, or about re-offending rates, which are based solely on police data, are on shaky ground. Nonetheless, such statements were being made, and a first step in the monitoring process was to assess whether police data in fact provided any support. 
6. South Australian Hansard, I March 1990: 514-515; 22 March 1990: 778-780. 

7. South Australian Hansard, 28 March 1990: 905-906; 11 April 1990: 1438. 

8. Following the 1990 amendments offenders apprehended with one hundred or more growing plants, ten kilograms or more of cannabis and 2.5 kilograms or more of resin could be deemed "large scale" traffickers and face maximum penalties of both a fine of up to $500,000 and twenty-five years imprisonment. 

9. South Australian Hansard, 22 March 1990: 788-790; 27 March 1990: 864-874.

10. South Australian Hansard: 28 March 1990: 910-912; 3 April 1990: 1043-1045; 11 April 1990: 1411-1413, 1436-1439.

Carney, T.
1987 Drug Users and the Law in Australia. North Ryde: Law Book.

Marks, R.
1990 Prohibition and regulation: An economist's view of Australian heroin policy. Australian and New Zealand Journal of Criminology 23:65-87.

Marshall, T.
1985 Alternatives to Criminal Courts: The Potential for Noll-judicial Dispute Settlement. London: HMSO.

Neill, M., P. Christie and S. Cormack
1991 Trends in Alcohol and Other Drug Use by South Australian School Children 1986-1989. Adelaide: Drug and Alcohol Services Council.

Office of Crime Statistics
1983 Courts of Summary Jurisdiction. Crime and Justice Series A No. 5. Adelaide: Attorney-General's Department.

Office of Crime Statistics
1987a The Cannabis Expiation System Monitoring Project: A Preliminary report oil the First Three Months. Adelaide: Attorney-General's Department.

Office of Crime Statistics
1987b The Cannabis Expiation System Monitoring Project: Second Interim Report 30 November 1987. Adelaide: Attorney-General's Department.

Office of Crime Statistics
1989 Cannabis: The Expiation Notice Approach. Adelaide: Attorney-General's Department.

About the authors:

Adam Sutton, Ph.D., is principal research fellow, Criminology Department, University of Melbourne. From 1982 to 1988 Dr Sutton was director of the South Australian Office of Crime Statistics and from 1989 to 1991 was director of crime prevention and criminology, responsible for developing and implementing an integrated crime prevention strategy for South Australia. His research interests include white-collar crime (on which he has co-edited a book and written several articles), crime prevention and the evaluation of justice programmes.

Rick Sarr, LL.B., is senior lecturer in law at the School of Business, University of South Australia. He completed is LL.B. degree at the University of Adelaide, and has a Masters of Arts degree in Criminology from the University of Toronto.