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New South Wales set to adopt harsher anti-cannabis laws

Tuesday, February 7, 2006

New South Wales Premier Morris Iemma has proposed strengthening the states anti-cannabis laws. The government is undertaking a complete rewrite of such laws in response to concerns voiced by some health professionals about the link between the drug and mental health issues. The proposed legislation will also increase jail sentences for those convicted of growing cannabis hydroponically.

"There is growing evidence of a link between long-term cannabis use and the incidence of severe mental health problems," said Mr Iemma.

Under the plan the current cannabis cautioning system, introduced in 2000, is to be reviewed. Cannabis users would be required to attend counseling to "understand the link between cannabis use and mental illness" to avoid being charged for their first offence. At present those issued with their second cautioning notice are required to call a counseling service.

Revised Penalty System

Current penalties do not distinguish between hydroponic cultivation and other forms of cultivation. The new set of penalties proposed by Mr Iemma include:

  • $220,000 fine and/or 10 years gaol for growing 5-49 hydroponic plants (same as present)
  • $385,000 fine and/or 15 years gaol for growing 50-199 hydroponic plants (currently this is given to those found growing 250-999 plants)
  • $550,000 fine and/or 20 years gaol for growing 200 hydroponic plants or more (currently given for growing in excess of 1000 plants)
  • Two years gaol for theft of electricity to power hydroponic growing houses
  • 12 months gaol for those found with any form of cannabis on their premises (for a first offence)
  • Five years gaol for those found with any form of cannabis on their premises (for a second offence)
  • Creation of child endangerment offences for parents who allow their children inside hydroponic grow-ops.

Hydroponic cultivation

Those found hydroponically growing cannabis will be hit particularly hard by the new laws. Mr Iemma defended the government's proposals by referring to expert advice on the effects of this type of cannabis on users. "Regular cannabis use can exacerbate mental illnesses and associated criminal activity. Experts tell us that potent, hydroponically grown cannabis is a particular problem," he said.

The content of THC in cannabis changed sharply in the 1970s with the rediscovery and spread of the sinsemilla technique, wherein the material used by the unfertilized female plant to create seeds is diverted to the production of trichromes, which contain THC. Potency rates have risen slowly but steadily since then with the refinement of various cultivation techniques. These techniques also have resulted in much greater yields.

The concentration of THC in cannabis as related to genetics, correct nutrient supply and precise lighting may be controlled by hydroponic cultivation, however these conditions are also regularly met using soil-based growing techniques.

Under the new laws hydroponic cannabis houses will be subjected to the same search and warrant powers as those which are used for the manufacture of amphetamines and heroin.

Support and Concerns

Dr John Currie from Drug and Alcohol Services at Sydney's Westmead hospital supports the government's position, telling ABC "there is growing evidence that the long term use of cannabis can cause mental illness, whether you're predisposed to it or not".

"Equally as worrying for us is that just ordinary people who don't have a mental health problem can still get trouble when they do have long term use of cannabis" said Dr Currie.

The Prime Minister has also accused cannabis of playing a role in Australia's mental health problems. "I think we are paying a dreadfully heavy price for the abuse of what was so called recreation and socially acceptable drugs despite the clear evidence, unaccepted until a few years ago, that these things were doing massive damage within our community," Mr Howard has said in parliament.

Mr Howard signaled that he supported the move in New South Wales to increase penalties for cannabis, especially hydroponic cannabis which the NSW government claims is stronger. "I welcome the change in direction of many of the states," he said.

The Mental Health Council of Australia has warned the government of over-estimating the role of cannabis in mental health. John Mendozza, the Councils Chief Executive, told ABC "I don't think we should overstate the role of cannabis in the nation's mental health crisis. It is a factor, but it is not the reason that we now face a mental health crisis."

The government's claims are based in part upon an Australian study conducted in 2002, which found regular use of cannabis among teen-age girls to be predictive of later anxiety and depression, though not that among boys. A different study published in 2005 actually found that those who suffer with depression and use cannabis "for medical reasons" reported less depressed moods.

Research has shown that cannabis use is risky for adolescents with an abnormal COMT gene (which occurs in about 25 percent of the population of Northern European descent). Compared to the rest of the population, those with the abnormal gene and who smoke cannabis regularly during adolescence have an increased risk of developing schizophrenia later in life, though none of these factors separately predicts the illness.

Opposition and Concerns

On the other hand, New South Wales' government proposals has been met with stiff opposition from various factions, including parts of the medical community. Doctor Alex Wodak, of the Australia Drug Law Reform Association in an interview with Australian Broadcasting Company said "I think many people, not just me, see this as more motivated by concern about the March 2007 elections than any public health measure."

"If governments were really serious about cannabis and in favour of draconian responses for a drug which after all, doesn't cause any deaths, then what would they do about a drug that causes 19,000 deaths in Australia a year - namely tobacco?" asked Dr Wodak.

The NSW laws contrast with calls from the Australian Democrats in South Australia for a relaxation of anti-cannabis laws. State leader Sandra Kanck said, "politicians and media commentators are getting on the bandwagon, saying we need to recriminalise the personal use of marijuana. That would make around 476,000 South Australians - 40 per cent of the population - retrospective criminals. About 75,000 people in the state would break the law each week if marijuana was criminalised. We need to recognise that drugs are used, and have appropriate policies to deal with that. Prohibition didn't work in America in the 1920s and it won't work now".

Anti-Cannabis laws in other Australian jurisdictions

South Australia, Western Australia and the Australian Capital Territory already distinguish between cannabis which is grown hydroponically or using artificial light and conventional cannabis for possession offences.

South Australia also goes one step further by having separate penalties for cannabis possession in public and in private. In South Australia possession of up to 20 cannabis plants for personal use is punishable by a $500 fine.

When compared to other jurisdictions the Australian Capital Territory has the lightest penalties for cannabis offences. Penalties for cannabis possession range from $100 for possessing 25 grams of leaf or 2 or less "non-artificially cultivated" plants to a $5,000 fine and/or 2 years gaol for possessing an amount of cannabis not covered by the above.

The Northern Territory has some of the toughest anti-drug laws in Australia when contrasted with other states. A person can receive a 25 year gaol sentence for having more than 20 plants in their possession.

Cannabis policy directions in other Western countries

The NSW government's decision to introduce tougher penalties for cannabis cultivation and possession comes at a time when other Western countries are relaxing their laws in this regard.

In the United States, anti-cannabis laws vary greatly from state to state with respect to personal use, medical cannabis and cultivation. Cannabis is still broadly prohibited under the federal Controlled Substances Act, and the federal government selectively enforces the law so as to frustrate various forms of legalization at state and local levels, for example in Gonzales v. Raich.

Personal cannabis use in the Netherlands is subject to a policy of official tolerance, though it remains technically illegal. The Netherlands regulates the sale of cannabis in coffee shops, though the non-tolerance of cultivation above five personal plants creates an irregularity of supply (the so-called "back-door problem"). Legislation is under consideration to address this by regulating commercial cultivation. The current Protestant government has sought to limit the number of coffee shops, and in border towns bar sales to foreigners.

Certain provinces of Canada have adopted a policy of non-enforcement of anti-cannabis laws against personal use, to the point that in the Vancouver and Toronto areas, operation of cannabis cafés is tolerated, though they are not permitted to sell. Cultivation is still aggressively interdicted. The city of Vancouver has drafted a licensing model similar to the Netherlands, which has not yet gone into force. The recent elections have brought a minority Conservative government, which may bring reversals in liberalization of cannabis laws.

In the United Kingdom cannabis has been reclassified as a Class C drug, making it less likely for an individual to be arrested for possession. There is political pressure in the UK to either schedule strong cannabis separately or reverse the rescheduling altogether, citing the alleged dangers. On the dangers of strong cannabis, there is a similarity of public discourse especially between the UK and Australia.

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