As sure as gay marriage, private cannabis use will not be a crime

The decriminalisation in NSW of the use, possession and cultivation of small quantities of cannabis is inevitable. As inevitable as gay marriage was a decade back, despite not everyone realising it at the time.

But that does not mean the government should move on this contentious social reform now. Elections matter and Premier Chris Minns was categorical before the 2023 election when he committed to the community: “We will not decriminalise drugs.”

Cultivating small amounts of cannabis became legal in the ACT in 2020.Credit: David Dermer

It would indeed be a breach of trust to move on decriminalisation of cannabis in this term of government, but there are many steps that can be taken immediately which are perfectly consistent with that commitment.

My support for decriminalisation (and ultimately careful legalisation) is in part based on the need to ensure drug use is as safe as it can be. Those who want to consume cannabis should not be forced to buy it on the black market, with no guarantees of quality and safety.

We also, however, need to think about broader “harm minimisation” and the need to protect vulnerable community members from unnecessary search, arrest, charge, prosecution and sentencing. The evidence is clear: these actions are harming young people and contributing to toxic cycles of intergenerational disadvantage. Aboriginal people are bearing the brunt.

Buttressing these arguments for reform are simple notions of human dignity. It is a human right to be free of arbitrary government interference with our lives, such as being prosecuted over conduct for which criminalisation serves no valid purpose. The committee found medicinal cannabis prescriptions in NSW are being used to facilitate recreational, as well as medicinal, use; this makes the practical operation of existing criminal laws even more arbitrary.

As a government member of a parliamentary committee examining the regulation of cannabis, I have attempted to bring a rigorous approach to all questions before the committee, while working realistically within the government’s pre-election commitment. The committee, in an interim report tabled last week, has recommended the commencement of a staged approach to reform of cannabis laws, one that might ultimately end in full legalisation. We will produce a final report next year with more detail on the decriminalisation and legalisation phases.

The first stage, which can be supported irrespective of one’s ultimate view on decriminalisation or legalisation, would involve immediately:

• Reforming laws and police procedures to give police a more expanded power to divert minor cannabis matters from the system altogether; and, when they don’t, to treat them like traffic offences, perhaps with a fine, rather than go to court.
• Reducing the penalty for such offences to a fine or three months’ imprisonment and creating a presumption that a person will not be convicted when sentenced. The current two-year penalty is a draconian legacy of a different era.
• Redefining what is classified as a “small” and “trafficable quantity” of cannabis.
• Amending police powers to limit the circumstances in which people can be searched for minor cannabis possession that is not for the purposes of supply.
• Crafting a safe way to enact a medicinal-use defence to the offence of driving with the “presence of a prescribed illicit drug in oral fluid, blood or urine” in respect of cannabis, as is legislated in Tasmania.
• Changing police standard operating procedures to ensure they do not unnecessarily target – including in random place-based search operations – people suspected of possessing small quantities of cannabis that are not for supply.

A key finding of the interim report is that current laws are not deterring cannabis use. Expert evidence was given that use has not increased in jurisdictions that have decriminalised cannabis, and nor have related harms. The Royal Australian and New Zealand College of Psychiatrists presented compelling evidence as to why decriminalisation provides the best framework for minimising cannabis-related harms, including psychosis from regular use among a small cohort of young people vulnerable to the drug.

The interim reforms we have recommended are common sense, consistent with other Australian jurisdictions, and will have no impact on cannabis use. They will simply minimise harms inflicted by the criminal regime. A first stage of reform would allow evaluation and then consideration of further stages. The 2024 Drug Summit – with its final two days in Sydney on December 4 and 5, following sittings just completed in Griffith and Lismore – provides a perfect forum to consider our recommendations.

Stephen Lawrence is a member of the NSW Legislative Council and a barrister. He is a former mayor of the Dubbo region.

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