In Australia there is a metaphorical ‘war on drugs’ that has failed comprehensively and as a result there is an ever-increasing level of support for the movement for drug reform.[1] There are a plethora of drug offences that relate to cannabis and a variety of statutory doctrines covered by both Commonwealth and State Law which assist in the prosecution of drug offences. The following report includes an overview of drug offences in NSW with a focus on cannabis. As well as an examination of policy issues associated with the criminalisation of recreational cannabis and potential risks and benefits related with alternative legal frameworks, in addition to a recommendation relating to the decriminalisation of cannabis. Drug Offences:The drug offencescovered under the Drug Misuse and TraffickingAct 1966 (NSW) (DMTA) include use, possession, supply, trafficking,cultivation and manufacturing of prohibited plants and drugs as well as aidingand abetting and taking part in offences involving prohibited drugs and/orplants. These laws apply to cannabis as the substance is a prohibited drug asspecified in Schedule 1 of the DMTA andis a prohibited plant as outlined in s 3. Additionally, cannabis is a poisonsand can be found under s 8 of the Poisonsand Therapeutic Goods Act 1966 (NSW), cannabis is a Schedule Nine substanceand therefore is a substance which may be misused or abused and themanufacture, possession, sale and/or use is prohibited by law’[2] Under s 40 of the DMTA the ‘deemed drug’ provision, makesit an offence to attempt to supply or misrepresent a legal substance as anillicit drug e.g. representing parsley as cannabis. The definition of supply ins 3 makes the offence complete upon making the offer contrary to whether supplyeventuates or whether there was an intention to supply is irrelevant. Under s29 of the DMTA where a person isfound to be in possession of a certain amount of a prohibited drug it isassumed that they are a drug trafficker, for cannabis leaf this weight is300grams and the onus falls on the accused to prove otherwise. Traffickableoffences also include possession of prohibited plants (s 23) and supply ofprohibited drugs (s 25) as outlined in the DMTAand carry fines of 2,000 penalty units and/or 10 years imprisonment. DMTA prohibits the manufacture, supply,possession and/or use of prohibited drugs including cannabis. There are avariety of drug offences in NSW. As outlined in Pt 2 Div 1 of the DMTA including possession (s 10) and self-administration(s 12) which are summary offences and mean that an individual is liable for afine of 20 penalty units and/or 2 years imprisonment (s 21).[3] Unders 11 of the DMTA it is an offence tobe in possession of equipment for administration of prohibited drugs. The Poisons and Therapeutic Goods Act 1996 (NSW) also assists in theprosecution of drug offences as it regulates, controls and prohibits the supplyand use of different categories of drugs of which cannabis is classified as adrug of addiction thus a prohibited substance under Schedule 9 of the PoisonsAct. The above-mentioned statutory doctrines must also coincide with theelements of criminal offences – mens rea and actus reus before a person isfound guilty.Major policy issuesStatutorydoctrines and court decisions created to assist in the prosecution of drugoffences have contributed to the over criminalisation of drug-relatedbehaviours. Drug policy in NSW is increasingly concerned with promotingapproaches to minimise health risks and other harms caused by the use ofcannabis and other legal and prohibited drugs.[4]There are a number of practical and ethical policy issues that are associatedwith the criminalisation of cannabis. Many policy issues arise regarding harmminimisation through ‘therapeutic’ criminalisation and harm minimisation. Thisincludes the Cannabis Cautioning Scheme (CCS)which was introduced in 2000 and is a formal cautioning of adult offendersdetected for minor offences relating to cannabis. As well as the MedicinalCannabis Compassionate Use Scheme (MCCUS)which allows police to use their discretion as whether or not to cautionterminally ill patients.[5] Other policyissues that arise as a result of criminalisation include a lack of medicalsupervision inevitably leading to the spread to preventable disease, overdosedeaths, adulterated substances, drug related violence, distraction of policeresources. ‘Prohibition is counterproductive — it causes significant harmsadditional to those resulting from drug use’ instead of funding for health andsocial services funding is diverted to law enforcement, prosecution andincarceration.’[6]  There are concerns as to criminalisation overtargeting many low risk offenders such as those dealt with under the CCS.[7]This encroaches on users feelings of personal and financial security as it isoften low level offences that are being dealt with pushing users further intopoverty.[8] Thereis a slow movement in Australia to decriminalise cannabis however the CCS is a ‘punishment sodisproportionate, because even if you end up having no real penalty you have acharge, the impact on employment opportunities and family can be lifelong.’[9]The purpose of criminalisation is often questioned and policy is concerned aswhether there are benefits to criminalisation or whether criminalisation isimplemented as it is a highly visible “solution” to real and perceived harmsand risks associated with the recreational use of cannabis.[10] Theframework is increasingly utilised as it can be enacted quickly, is visible andis often correlated with a strong government. It is a common opinion that theNSW Government are contradicting their actions and intentions betweenattempting to criminalise cannabis while minimising the harms associated withdrug use which is supported by Tadeh Karapetian’s statement ‘the Government’sobjective of minimising harm has been undermined by the criminalisation policy,through the stigmatisation of cannabis users, the preservation of the blackmarket, the limitations of diversion schemes and the restriction of medicinaluse.’ [11] Recently, theCourt of Criminal Appeal in NSW, extended criminal liability for drug offences,fortunately, the High Court prevented on over reaching prosecution attempts toextend criminal liability in drug offences. In the case of Burns v The Queen the High Court found that unlawfully supplying adrug to someone does not ‘by itself, form the basis for unlawful and dangerousact manslaughter’.[12]  However, if supplying a drug did amount tomanslaughter, over criminalisation would occur. As a result, users andsuppliers would be more reluctant to call authorities for assistance for fearof being penalised and the criminal justice system would be over-exhausted andburdened as a result.[13]  It is estimatedthat Australians spend over $7 billion on cannabis annually, this is a concernfor the Government as they are losing out on a potential revenue stream bycriminalising cannabis use.[14]The National Drug Strategy Household Survey 2013 found that the recent use ofcannabis in NSW dropped from 16.7% in 1998 to 9.5% in 2013, this is a concernfor policy makers as it cannot be concluded that the ‘data does not support thenotion that a criminalisation policy is more effective in preventing cannabisuse.’[15]While the current policy criminalises the use of cannabis, policy is graduallyde-criminalising cannabis and central to the policy debate is the belief thatcannabis is a ‘gateway drug’ that raises concerns as to what other drugs usersmay be exposed to if cannabis is de-criminalised.[16] Alternative Legal FrameworksA national drugpolicy has been implemented in Australia since 1985 and accepts that theeradication of illegal drug use is not achievable. Instead it aims to minimiseharm by reducing demand and supply.[17]Thereare multiple different legal frameworks the govern the use and supply of drugs:Depenalisationmeans drug use and possession carry lighter criminal penalties, whilst drugsupply remains a criminal offence.[18] Abenefit of this framework is that drug supply is still illegal which may assistin reducing the amount of cannabis that is supplied to users. Another benefitis that users are able to use the drug with a lesser penalty which may detersome users. Conversely, due to the lesser penalty, users may use cannabisrather than a drug that has harsher penalties. This will be detrimental to thegovernment as they will be spending money in order to assist in imposinglighter penalties such as offering drug education and treatment services.[19] Decriminalisationresults in drug use and possession no longer carrying criminal penalties butare replaced with civil penalties. Those who use or possess drugs may still becharged especially if fines are not paid or attending assessments are notcomplied with.[20]The supply of drugs is still a criminal offence. Many politicians are concernedthat the decriminalisation of cannabis would ‘send the wrong message.’[21]Additionally, researches have supported this argument, arguing that ‘removingcriminal penalties would lead to increased drug use, with harms falling hardeston the deprived communities that are already the most damaged by drug-relatedproblems.’[22]Conversely, research undertaken in Sweden has shown that ‘as a result ofdecriminalisation, drug use does not increase among existing or new users, butreduces demand on, and the cost of the criminal justice system.[23] Theremay be reductions in problematic drug use, drug-related HIV and AIDS, deathsand reduced social costs of responding to drugs.[24]However, the way decriminalisation is implemented may affect the extent ofnet-widening which is an increase in the number of people arrested or charged.[25] Legalisation: theuse and supply of cannabis is legal.[26] Approximatelyone in four Australians (26%) believe that the recreational use of cannabisshould be legal.[27]The biggest risk is that supplying the drug is legalised. This makes itdifficult to control the risks and harms associated with cannabis. Many peoplemay abuse the legalisation of cannabis and treat it as a “gateway drug” toharsher and riskier drugs. It may result in reducing black market and criminalnetworks associated with cannabis drug trading, shift in responses and fundingfrom the police and the criminal justice system towards heath, treatment andeducation programs. The taxes raised from the legalisation of cannabis could beused for the benefit of the community. By legalising cannabis there may be asignificant increase in drug use, based on the harms and costs associated withlegal drugs such as alcohol and tobacco. RecommendationIt is essential that Governments recognises that they cannot strictly control the behaviour of citizens.[28] In response to the War on Drugs, the government needs to consider ending ‘the criminalization, marginalization and stigmatization of people who use drugs but who do no harm to others’ and ‘Encourage experimentation by governments with models of legal regulation of drugs to undermine the power of organized crime and safeguard the health and security of their citizens.’[29] The civil penalty applicable to minor cannabis offences creates fairness and justice as it is a more proportionate response. As a result, criminal justice resources will be freed up and civil penalties will generate a revenue for the NSW Government. ‘The only way toachieve goals of rational drug policy is to replace black market for drugs withform of legal availability under highly regulated system’, this means that theNSW government should adopt the non-commercial model which is popular inUruguay, and allows the government to retain control over the production andsale of cannabis.[30] Thereshould be a minimum age purchase such as 21 in the case of Colorado or 18 inUruguay.[31]The drug should be purchased through pharmacies, with there being a limit onhow much can be purchased per month as well as the purity, what forms it can besold, the training and responsibilities of suppliers, education about the drugand much more.[32]ConclusionAs a result of theineffective ‘war on drugs’, there has been a global movement for drug lawreform.[33] FormerVictorian police commissioner Ken Lay, has explained that ‘you can’t arrestyour way out of this problem’, showing the need for the NSW Government toreconsider the drug policy in regards to the recreational use of cannabis.[34]The key drug offences and major policy issues associated with the recreationaluse of cannabis is over criminalising and as a result placing strain on lawenforcement and users. The government needs to be more concerned with harmminimisation rather than prohibition because ‘drug law enforcement has hadlittle impact on the Australian drug market.’[35]In conclusion, with the application of sensible and reasonably strict criteriathe decriminalisation of cannabis for recreational cannabis would benefit theNSW justice system, users and the community.BibliographyA Articles/Books/ReportsAustralianInstitute of Health and Welfare, Australian Government, Alcohol & otherdrug treatment services (2018) CaitlinHughes and Alison Ritter, A Summary ofDiversion Programs for Drug and Drug-Related Offenders in Australia (2008)National Drug and Alcohol Research CentreCannabis legalisation: what model for regulation?(7 December 2017) Alcohol and Drug FoundationCentrefor Medicinal Cannabis Research and Innovation, Review of the Medicinal Cannabis Compassionate Use Scheme (2016)NSW GovernmentConrad,Chris, Hemp for Health: The Medicinal andNutritional Uses of Cannabis Sativa (Healing Arts Press, Rochester, 1997)Drug Programs and Initiatives(2018) NSW GovernmentFeatherston,James, Simon Lenton, Effects of the Western Australian Cannabis InfringementNotice Scheme on Public Attitudes, Knowledge and Use: Comparison of Pre- andPost-Change Data (2007) National Drug Research Institute Curtin and CurtinUniversity of Technology Hari,Johann, About Drug Policy Australia(2018) Drug Policy Australia Hall,Wayne, Pacula Liccardo, Rosalie, Cannabis Use and Dependence: Public Health andPublic Policy (The Press Syndicate of the University of Cambridge, 2003)Hughes,Caitlyn, Alex Stevens, ‘What Can We Learn From The Portuguese Decriminalizationof Illicit Drugs?’ (21 July 2010) TheBritish Journal of CriminologyGettman,Jon, Top 10 Marijuana Policy Issues For2018 (2 January 2018) High Times Gotsis,Tom, Chris Angus and Lenny Roth, Illegal Drug Use and Possession: CurrentPolicy and Debates (Briefing Paper No 4, NSW Parliamentary Research Services,2016)Featherston,James, Simon Lenton, Effects of theWestern Australian Cannabis Infringement Notice Scheme on Public Attitudes,Knowledge and Use: Comparison of Pre- and Post-Change Data (2007) NationalDrug Research Institute Curtin and Curtin University of Technology Lee,Nicole, Alison Ritter, Australia’sRecreational Drug Policies Aren’t Working, so What are the Options for Reform?(2 March 2016) The ConversationMostyn,Ben, Helen Gibbon and Nicholas Cowdery, The Criminalisation of Drugs and theSearch for Alternative Approaches ‘24(2)’ Criminal JusticeStateLibrary New South Wales, Drug Laws in NSW(29 October 2015)http://legalanswers.sl.nsw.gov.au/drugs-and-law-hot-topics/drug-laws-nswStateLibrary New South Wales, Drug Offences(1 October 2016) StephenOdgers, Editorial: Drug Law Reform (2014) 38(6) Criminal Law JournalKarapetian,Tadeh, Criminalisation of Cannabis in NewSouth Wales: Is Harm Minimisation Going Up in Smoke? (2017) University ofNew South Wales Law Journal Student Series 17BCasesBurns v The Queen[2012] HCA 35CLegislationDrug Misuse and Trafficking Act 1985(NSW)Poisons and Therapeutic Goods Act1966 (NSW)[1] Ben Mostyn, HelenGibbon and Nicholas Cowdery, TheCriminalisation of Drugs and the Search for Alternative Approaches ‘24(2)’Criminal Justice, 265.[2] Poisons and Therapeutic Goods Act 1966 (NSW)[3] Drug Misuse and Trafficking Act 1985(NSW)[4] Johann Hari, About Drug Policy Australia (2018) DrugPolicy Australia [5] Centrefor Medicinal Cannabis Research and Innovation, Review of the Medicinal Cannabis Compassionate Use Scheme (2016)NSW Government [6] Mostyn,above n 1, 265.[7] Tadeh Karapetian, Criminalisation of Cannabis in New SouthWales: Is Harm Minimisation Going Up in Smoke? (2017) University of NewSouth Wales Law Journal Student Series 17.[8] Ibid.[9]Caitlin Hughes andAlison Ritter, A Summary of DiversionPrograms for Drug and Drug-Related Offenders in Australia (2008) NationalDrug and Alcohol Research Centre [10] Tom Gotsis, Chris Angusand Lenny Roth, Illegal Drug Use andPossession: Current Policy and Debates (Briefing Paper No 4, NSWParliamentary Research Services, 2016) 19.[11] Karapetian,above n 9.[12] Burns v The Queen [2012]HCA 35.[13] Mostyn, above n 7,264[14] Ibid.[15] Ibid.[16] Wayne Hall, RosalieLiccardo Pacula, Cannabis Use andDependence: Public Health and Public Policy (The Press Syndicate of theUniversity of Cambridge, 2003) 4.[17]Gotsis, above n 12.[18] Ibid.[19] Ibid.[20] Lee, above n 18, 26.[21] Caitlin Hughes, AlexStevens, ‘What Can We Learn From The Portuguese Decriminalization of IllicitDrugs?’ (21 July 2010) The British Journal of Criminology ‘50(6)’[22] Ibid.[23] James Featherston,Simon Lenton, Effects of the WesternAustralian Cannabis Infringement Notice Scheme on Public Attitudes, Knowledgeand Use: Comparison of Pre- and Post-Change Data (2007) National DrugResearch Institute Curtin and Curtin University of Technology 50-62.[24] Lee, above n 18, 26.[25] Ibid.[26] Ibid.[27] AustralianInstitute of Health and Welfare, Australian Government, Alcohol & other drug treatment services (2018)[28] Karapetian, above n, 9.[29] Mostyn,above n 1, 262.[30] StephenOdgers, Editorial: Drug Law Reform(2014) 38(6) Criminal Law Journal, 335.[31] Ibid.[32] Ibid. [33] Mostyn, above n 1, 269.[34] Lee,above n 18, 26[35] Ibid.Get Help With Your EssayIf you need assistance with writing your essay, our professional essay writing service is here to help!Find out more