The Social Impacts of the Cannabis Expiation Notice Scheme in South Australia. Part 4

Ali, R. & Christie, P. (eds.) (1994). Report of the National Task Force on Cannabis. Canberra: Australian Government Publishing Service.

Bowman, J. & Sanson-Fisher, R. (1994). Public Perceptions of Cannabis Legislation in Australia. prepared for the National Task Force on Cannabis. National Drug Strategy Monograph Series, No. 28. Canberra: Australian Government Publishing Service.

Christie, P. (1991). The Effects of the Cannabis Expiation Notice Scheme in South Australia on Levels of Cannabis Use. Adelaide: Drug and Alcohol Services Council.

Christie, P. & Ali, R. (1995). The Operation and Effects of the Cannabis Laws in South Australia. In D. McDonald & L. Atkinson (Eds.) Social Impacts of the Legislative Options for Cannabis in Australia (Phase 1 Research): A Report to the National Drug Strategy Committee. Canberra: Australian Institute of Criminology.

Commonwealth Department of Health and Family Services. (1996).National Drug Strategy Household Survey: Survey Report 1995. Canberra: Australian Government Publishing Service.

Donnelly, N. & Hall, W. (1994). Patterns of Cannabis Use in Australia. prepared for the National Task Force on Cannabis. National Drug Strategy Monograph Series, No. 27. Canberra: Australian Government Publishing Service.

Donnelly, N., Hall, W. & Christie, P. (1995). The Effects of Partial Decriminalisation on Cannabis Use in South Australia 1985–1993. Australian Journal of Public Health, 19(3), pp 281–287.

Drug & Alcohol Services Council. (1997). Cannabis Laws in SA. Information Sheet No. 12. Adelaide: Drug & Alcohol Services Council.

Lenton, S. (1995). Cannabis Offenders in the Western Australian Criminal Justice System. In D. McDonald & L. Atkinson (Eds.) Social Impacts of the Legislative Options for Cannabis in Australia (Phase 1 Research): A Report to the National Drug Strategy Committee. Canberra: Australian Institute of Criminology.

Lenton, S., Ferrante, A. and Loh, N. (1996) Dope busts in the West: Minor cannabis offences in the Western Australian criminal justice system. Drug and Alcohol Review, 15(4), 335-341.

Manderson, D. (1993). From Mr Sin to Mr Big: A History of Australian Drug Laws. Melbourne: Oxford University Press.

McDonald, D. & Atkinson, L. (eds.) (1995). Social Impacts of the Legislative Options for Cannabis in Australia: Phase 1 research. Report to the National Drug Strategy Committee. Canberra: Australian Institute of Criminology.

McDonald, D., Moore, R., Norberry, J., Wardlaw, G. & Ballenden, N. (1994). Legislative Options for Cannabis in Australia. Prepared for the National Task Force on Cannabis. (National Drug Strategy Monograph Series, No. 26). Canberra: Commonwealth Department of Human Services & Health.

Sarre, R., Sutton, A. & Pulsford, T. (1989). Cannabis – The Expiation Notice Approach. (Report Series C, No. 4, June). Adelaide: South Australian Attorney-General's Department.

Appendix 1
The Cannabis Laws in South Australia

Controlled Substances Act, 1984

The Controlled Substances Act, 1984 proscribes the production, sale, supply, use, and possession of certain drugs of dependence and prohibited substances, including cannabis, and it proscribes the possession of drug paraphernalia. The introduction of this Act also brought in new penalties for large-scale trafficking. It introduced a greater degree of separation between offences involving cannabis and those involving other illicit drugs. In treating cannabis differently from other illicit drugs, the 1984 Act acknowledged the different level of harm that seemed to be associated with cannabis use compared with other illicit drug use. Under the 1984 Act, the maximum penalty for the possession, use, or cultivation for personal use of a small quantity of cannabis was $500, while for any other drug of dependence, the maximum penalty was $2,000 and/or two years imprisonment. The 1984 Act also provided for significant reforms in the way offences relating to the possession and use of all illicit drugs (other than cannabis) were dealt with, through the introduction of a drug assessment panel as an alternative to criminal prosecution (Manderson, 1993).

Controlled Substances Act Amendment Act, 1986 – The Cannabis Expiation Notice Scheme

Further reform to the South Australian drug laws came with the introduction of the Controlled Substances Act Amendment Act, 1986. This amendment proposed a number of changes to the Controlled Substances Act, 1984, including the insertion of Section 45a (Expiation of Simple Cannabis Offences). This represented the adoption of a new scheme for the expiation of simple cannabis offences, such as possessing or cultivating small amounts of cannabis for personal use, or possessing implements for using cannabis.

The Cannabis Expiation Notice (CEN) scheme came into effect in South Australia on 30 April 1987. Under this scheme, adults coming to the attention of police for "simple cannabis offences" could be issued with an expiation notice. Offenders were able to avoid prosecution by paying the specified fee or fees within 60 days of the issue of the notice. Failure to pay the specified fees within 60 days could lead to prosecution in court, and the possibility of a conviction being recorded.

Underlying the CEN scheme was the rationale that a clear distinction should be made between private users of cannabis and those who are involved in dealing, producing or trafficking in cannabis. This distinction was emphasised at the introduction of the CEN scheme by the simultaneous introduction of more severe penalties for offences relating to the manufacture, production, sale or supply of all drugs of dependence and prohibited substances, including offences relating to larger quantities of cannabis.

Section 45a(5) of the Controlled Substances Act, 1984 states that "the payment of an expiation fee shall not be regarded as an admission of guilt". For most of the time that the CEN scheme has been operating (ie. until 1997), if an alleged offender wished to contest a matter for which an expiation notice had been issued, they had no option other than not to pay the expiation fee, and thereby receive a summons for failure to expiate, and consequent court appearance (this has changed since early 1997 – see next section). In doing so, they faced the possibility, if found guilty of the offence, of receiving a criminal conviction. It has been argued that this may have been a barrier to people wishing to challenge a cannabis expiation matter (Sarre, Sutton & Pulsford, 1989). Further, it has been suggested that the CEN system could be improved by removing the possibility of criminal conviction for those people who choose to contest a matter for which they have been issued a CEN.

There has been some debate as to whether the introduction of the CEN scheme in South Australia does in fact represent the decriminalisation of minor cannabis offences. Manderson (1993) believes that, with the CEN scheme, South Australia has indeed decriminalised small-scale cannabis use. It should be emphasised, however, that a criminal conviction for expiable cannabis offences remains a possibility if a person issued with an expiation notice fails to pay the expiation fine within the specified time, and the matter is subsequently dealt with in court. Sarre, Sutton and Pulsford (1989) prefer to view the South Australian approach as one that de-emphasises the criminal status of small-scale cannabis use, but stops short of decriminalising it. The National Task Force on Cannabis, in its paper on legal options for cannabis (McDonald, Moore, Norberry, Wardlaw & Ballenden, 1994) chose to avoid the problems and ambiguities associated with the word "decriminalisation" by referring to the South Australian model for dealing with small-scale cannabis offences (as also found in the Australian Capital Territory, the Northern Territory and various US states), as "prohibition with civil penalties".

Expiation of Offences Act

Issues relating to the payment and administration of all expiable offences (including traffic, minor cannabis, and numerous other types of offences) were initially covered by the Expiation of Offences Act, 1987. Under this Act, offenders issued with expiation notices for minor cannabis offences had a period of 60 days in which to pay the fee or fees. The Act allowed for in-person or postal payments to be made, but full payment of expiation fees was required. The expiation notice form did not suggest alternative payment options (eg. partial payments over time).

Failure to pay expiation fees within the 60 day period resulted in a summons being issued to the offender. Thus, at this point the offence effectively changed from an expiable one, for which no criminal conviction would be recorded if the offence was cleared, to a non-expiable offence which carried a likelihood of criminal conviction. On receipt of the summons, an offender could choose to plead guilty in writing, or to appear in court in person. Court proceedings involving CEN fee defaulters would be dealt with by Justices of the Peace. In most cases, fines would be imposed which were similar in magnitude to the expiation fees, with the addition of court costs (Christie & Ali, 1995). These outcomes would be irrespective of whether the offender pleaded guilty in writing or appeared in court in person.

In 1996, the Expiation of Offences Act, 1996 was passed, and brought in changes to the way in which all expiable offences are dealt with, including minor cannabis offences. The types of minor cannabis offences and the expiable amounts of cannabis involved remained unchanged. The new expiation notice forms outline a range of options for offenders in how they can deal with the offence. The new Expiation Act provides for alternative payment options for offenders, including paying expiation fees in instalments, and clearing fees through community service. With these options, an application to the Registrar of the Magistrates Court must be made, pleading financial hardship. Instalment payments can only be applied for if $50 or more is owed in expiation fees, and community service is only available if $150 or more is owed, and the offender cannot pay by instalments.

The new Expiation of Offences Act also dealt with the problem of alleged offenders having to let payment of expiation fees lapse in order to secure a court appearance to contest a matter for which they had been issued a CEN. Under the new Act, the expiation form includes an option whereby the offender can choose to be prosecuted, and thereby dispute the allegation that they committed an offence. In doing so, they still run the risk of being found guilty and receiving a criminal conviction. In this regard, the new Act has dealt with one of the two issues raised by Sarre, Sutton and Pulsford (1989) as barriers to disputing expiation offences: while people issued with CENs can now actively choose prosecution as an option, in doing so, the offence converts from one which can be expiated to one which still carries the possibility of conviction.

Another change under the new Expiation of Offences Act is that if the total amount of expiation fees payable is $50 or less, the offender now has 30 days to pay (rather than 60, as under the previous Expiation of Offences Act). If the amount of fees is greater than $50, the offender has 60 days to pay. Furthermore, the new Expiation of Offences Act introduced a different approach to dealing with offenders who do not pay the total of expiation fees within the prescribed time period, and do not choose an alternative payment option. Rather than be issued with a summons to appear in court, such offenders are now sent a reminder notice, which incurs an additional reminder fee. Continued failure to pay the outstanding expiation fees then results in an automatic conviction being recorded, without the issuing of a summons and subsequent court appearance. In such cases, the offender is convicted with the unpaid fees becoming the fine, and court costs being added.

The rationale behind the introduction of the new Expiation of Offences Act, 1996 was partly based on considerations of social justice, such that people who are in financial difficulties might not be disadvantaged by being more likely to default on expiation fee payments, and thereby obtain criminal convictions. It may have been hoped that the new system would improve the rate of expiation and improve revenue raising, particularly for cannabis offences, where the rate of expiation had been at under 50% for a number of years. In addition, the different procedures for dealing with fine defaulters, it could be argued, would be likely to reduce workloads for courts administration staff and reduce court case-loads, thereby reducing costs.

The issuing of the new expiation notice forms by SA Police commenced in February 1997. At the time of preparation of the present report, reliable data on offences under the new system was not available. It is therefore too early to comment on how the introduction of the Expiation of Offences Act, 1996 may have affected rates of expiation and court costs and workloads.

Expiable Offences under the CEN Scheme

Regulations under the Controlled Substances Act, 1984 were made with the introduction of the Cannabis Expiation Notice scheme in 1987, which specified the types of expiable minor cannabis offences and their associated expiation fees. The expiable offences and fees are as follows (Drug & Alcohol Services Council, 1997):

Expiation notices for cannabis offences can only be issued to persons aged 18 years or over.

It should be noted that when the CEN scheme first came into operation, expiable cannabis cultivation offences were defined as those involving small numbers of plants for non-commercial purposes. The terms "commercial purposes" and "non-commercial purposes" were not defined in the Controlled Substances Act (Sarre, Sutton & Pulsford, 1989). However, a prosecution could proceed against any person alleged to be selling or offering for sale any amount of cannabis to another person, as such offences were clearly defined as non-expiable. Thus, police were able to effectively deal with small-scale cultivation offences through the CEN scheme, despite some ambiguity existing within the Controlled Substances Act regarding expiable quantities of plants under cultivation. In order to remove this ambiguity, the Controlled Substances Act Amendment Act (No. 2), 1990 was assented to, and came into operation in September 1991. Among other things, this amendment clearly defined an expiable "simple cannabis offence" with regard to cultivation of cannabis plants as one involving no more than 10 plants. (In addition, for persons found guilty in court of cultivation of cannabis plants, but solely for their own use, the amendment defined 10 plants as the threshold number allowed to incur a maximum court-imposed fine of $500; amounts above this number of plants could incur substantially greater penalties).

Non-expiable Cannabis Offences

Offences involving larger amounts of cannabis are not expiable under the CEN scheme, and are dealt with through the courts. Where large trafficable quantities of cannabis are concerned, the penalties set down are substantial.

It should be noted that certain types of offences, potentially involving only small amounts of cannabis, are non-expiable (e.g. offences involving possession or use of cannabis oil, and offences involving consumption of cannabis in a public place, including a motor vehicle). These have been deemed more serious, and requiring a court appearance.

• A person knowingly possessing 100 grams or more of cannabis or 20 grams or more of cannabis resin, or found to be cultivating more than 10 cannabis plants, is deemed to do so for the purpose of sale or supply to another, in the absence of proof to the contrary. If a court is satisfied that an amount of cannabis greater than 100 grams, or of cannabis resin greater than 20 grams is for personal use only, a maximum fine of $500 applies, with the possibility of conviction.
• All offences relating to cannabis oil ("hash oil") are non-expiable. The charge of personal possession of cannabis oil may incur a penalty not exceeding $2,000 or 2 years imprisonment, or both.
• Smoking or consumption of cannabis in a public place (including a motor vehicle) is a non-expiable offence, and carries a maximum fine of $500.
• Cannabis possession and use by persons under the age of 18 years are dealt with under the Young Offenders Act, 1993, via a system of formal and informal cautions, family conferences or referrals to the Youth Court.
• Driving under the influence of cannabis is an offence under the Road Traffic Act, 1961, and penalties are the same as those for driving under the influence of alcohol.
• Offences relating to commercial cultivation, sale and supply are not expiable, and penalties are severe, having been increased both with the introduction of the CEN scheme, and in subsequent amendments to the Controlled Substances Act, 1984. The maximum penalties for trafficking in any amount of cannabis are as follows:

  -- cannabis: less than 10kg

  -- cannabis resin: less than 2.5kg

  -- cultivation of cannabis: < 100 plants $50,000 and/or 10 years imprisonment

  -- cannabis: 10kg or more

  -- cannabis resin: 2.5kg or more

  -- cultivation of cannabis: 100 plants or more: $500,000 and 25 years imprisonment

• More severe penalties apply to the sale or supply of cannabis to children under 18 years of age, or to the possession of cannabis for the purpose of sale or supply to another person within a school zone (i.e. the grounds of a school, or within 500 metres of the school boundary). The maximum penalties which apply are:

  -- cannabis: less than 10kg

  -- cannabis resin: less than 2.5kg: $100,000 and/or 15 years imprisonment

  -- cannabis: 10kg or more

  -- cannabis resin: 2.5kg or more: $1,000,000 and 30 years imprisonment

As a further elaboration of the questions of central importance identified by the Commonwealth steering committee for the second phase research, the following terms of reference for the project were formulated:

The researchers will provide a report which:

1. provides comprehensive information and data on South Australian laws and enforcement activities relating to minor cannabis offences since the introduction of the Cannabis Expiation Notice (CEN) scheme in South Australia;
2. analyses the CEN scheme, with particular reference to its observable negative and positive impacts on:
   • prevalence and patterns of cannabis use;
   • the number of people coming into contact with the criminal justice system for cannabis related offences;
   • public understanding and knowledge of the law relating to cannabis use;
   • the amount of education undertaken to inform public understanding and knowledge of the law relating to cannabis use;
   • reasons for not expiating cannabis-related offences;
   • police practices and the influence of law enforcement attitudes and policies;
   • unit costs of enforcement (including the apparent low level of financial savings from expiation in South Australia compared with the high level reported from the USA);
   • employment prospects of cannabis users;
   • cannabis market dynamics (including personal cultivation/quality of supply, source of supply, price, availability, exploitation of personal cultivation laws by cannabis dealers and suppliers, etc).
3. identifies and analyses trends over time, to the extent possible, in each of the areas listed in item 2 above, since the introduction of the CEN scheme in South Australia.
4. considers arguments and information which either support or refute the following propositions:
   • the unintended negative consequences of the CEN scheme in place in South Australia, such as net-widening, can be significantly reduced by fine-tuning of the system;
   • the South Australian CEN scheme has, or will, result in significant economic savings;
   • the discontinuation of the application of criminal penalties for simple cannabis offences, as is the case in South Australia, has not, and will not, lead to greater prevalence or higher levels of cannabis use.
     
     

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