From Decriminalising to Legalising Cannabis: An Interview With Ex-ACT Health Minister Michael Moore

As far as ACT Labor MLA Michael Pettersson is concerned, his territory will be legalising the use and personal possession of cannabis before the year is out. The legislation he introduced to make this happen is currently before a parliamentary inquiry, which will table its report in early June.

The Personal Cannabis Use Bill legalises the possession of up to 50 grams of cannabis and the home cultivation of up to four plants. And Mr Pettersson said via email on Tuesday, that he’s confident it “has the in-principle support of a majority of MLAs”.

According to Pettersson, 60 percent of drug-related arrests in the ACT are for personal cannabis use. And legalising the drug will prevent adults from potentially ending up with a criminal record for possessing small amounts of the drug, as well as freeing up police time for more productive pursuits.

Decriminalising it

The ACT introduced the Simple Cannabis Offence Notice back in 1992. This scheme allowed police to issue an individual caught with up to 25 grams of cannabis with a $100 fine. This made the capital territory the second jurisdiction to decriminalise cannabis use after SA did so in 1987.

Still in place today, the scheme provides that if a fine is paid within 60 days, no criminal record is recorded. In 2005, the permitted personal possession amount was upped to 50 grams to reflect that most people buy an ounce – around 28 grams – on the black market.

The Pettersson bill would see the Simple Cannabis Offence Notice scrapped for adults. However, in its current form, it provides that the expiation notice scheme would still apply to people under the age of 18, which is a measure that’s come under scrutiny a number of times at the inquiry hearings.

The Vermont model

Legalising cannabis use will bring the ACT into line with 10 US states. The Australian capital is set to adopt the cannabis model Vermont rolled out last July. The Green Mountain state was the first in the US to pass legalisation legislation, rather than hold a popular vote.

Adults in Vermont are able to be in the possession up to an ounce of cannabis and they can grow up to two plants at home. Unlike other US states, the legislation does not allow for the regulated production and distribution of the herb.

A pioneer drug reformer

Former independent MLA Michael Moore introduced the legislation that successfully established cannabis decriminalisation in the ACT. This was prior to becoming Australia’s first independent minister, when he served as ACT health minister from 1998 to 2001.

These days, Mr Moore is the head of a number of health networks, as well as being an adjunct professor at Canberra University. And he recently said that he would have moved to legalise cannabis use in the early 90s if he thought it was possible.

Sydney Criminal Lawyers spoke to Mr Moore about the political climate at the time he saw cannabis decriminalisation introduced, the added benefits that legalisation will bring, and why ACT police won’t need to enforce federal drug laws once the personal use of the plant is legalised.

Firstly, Mr Moore, what led you to introduce the cannabis decriminalisation bill into parliament in the early 90s? What was it about the political climate in Canberra at the time that led to its passing?

The ACT Legislative Assembly commenced in 1989. I was elected and figured I would likely only have one term. I decided to pursue things I thought were important for people who would not otherwise be represented by major political parties.

That led to the establishment of the Select Committee on HIV, Illegal Drugs and Prostitution. Initially, I was most interested in injecting drug use and the spread of HIV. And whether that would link with prostitution.

It led to three major changes. First, a change to the prostitution legislation. Second, the heroin trial debate, which nearly got through except it was prevented in the end personally by John Howard. And then the expiation notices for cannabis.

What set the atmosphere was we had a new assembly, the ACT is highly educated, and we had four television channels, three or four radio stations and local newspapers – a huge amount of attention – that were always hungry for media.

And I have a natural ability, probably because I taught drama, but I have a natural ability. My first career was a high school teacher: English, history, drama, that sort of thing.

I just explored these issues with the community. People would appear before our committee. And we explored these issues. Instead of saying we’re going to introduce this. We asked what harm was being done and how this was working?

And that was over a two year process. The legislation was introduced into the assembly first in 1991, just prior to an election. And of course, the delay tactic was employed.

Then I reintroduced it once I was re-elected by 73 votes in 1992. And by then, people were thinking, “We’re a long way from an election. Let’s see how this goes.”

What would you say the overall impact of the Simple Cannabis Offence Notice scheme has been over the last 30 years?

The most important impact was keeping people out of gaol. Remember this is before people were using diversion tactics and drug courts.

The intention was to make sure that the harm associated with the product was not as great as the harm associated with the way that the legislation worked. Through the process of this committee it became clear to me that one of our major problems was prohibition.

As part of that whole process, I actually went back to university and did a master’s degree in public health. So, it was something I was looking at with a strong academic perspective.

An interesting thing was, I started going back to university at a time when I was just realising that things were so because I said them. They were reporting that Michael Moore said. But, the funny thing was, my lecturers weren’t happy with that as evidence.

So, it was a timely thing for me, as I realised that the policies I was working on and presenting should also be based on evidence.

And so, the best evidence that we could see from the Netherlands and South Australia – as they already had an expiation notice – was that this would reduce harm. And the most important focus was keeping people out of gaol.

You’ve been speaking at the hearing of the Legislative Assembly Inquiry into Michael Pettersson’s Personal Cannabis Use Bill. What are the added benefits of completely legalising the personal use of cannabis, rather than continuing on with decriminalisation?

The most important thing is that it will have to be evaluated properly when introduce.

But, there was always an element of the forbidden fruit that attracted a certain group of people to the use of illicit drugs. And this is one of the great dangers of prohibition.

We don’t have the tools that we’ve used very effectively with tobacco. The same tools that we’ve used in regard to alcohol. Once we’ve made it legal, the most important thing is just removing that forbidden fruit thing.

In the end, we all know we can buy cannabis. I’ve never been – apart from a couple of times – a cannabis user. It’s a drug that doesn’t suit me. But, I know where I can find it in a couple of hours if I want to.

You’ve also said that if you could have in the 90s, you would have legalised the personal use and possession of cannabis, rather than decriminalise it. Why wasn’t the time right then?

It would have been, but I couldn’t get the numbers. It was a very pragmatic decision. And there was a similar decision I made in regard to prostitution in the ACT.

Prostitution in the ACT is limited to our industrial areas: Fyshwick, Mitchell and Hume. I would also have it in the commercial areas around Phillip and Belconnen. But, I couldn’t get the numbers to do that. The reason I would have done that was about the protection of the workers.

In the end, politics is about the art of the possible. And I just don’t think it was possible at the time.

The Pettersson Bill at present would abolish cannabis fines for adults, but they would still apply to minors. However, you’ve argued that the fining system should be thrown out for both minors and adults. Why do you believe this should be the case?

This goes back to when I was teaching year 11 and 12. I can’t think of a faster way to get young people to do something than to tell them that they can’t do it until they’re an adult.

We have to be very conscious of the reverse psychology involved in this. Applying that sort of rule will do the opposite to what we want it to do, which is to take away the forbidden fruit: to discourage people by making it a complete non-issue.

I can understand why Michael Pettersson has put this in. Because it actually appeals to those who say, “We don’t want our kids using cannabis.” The trouble is, almost everything that we do with drug policy – not just illicit drug policy, but drug policy generally – is counterintuitive.

It’s the same as people saying, “Well, why don’t we just ban tobacco?” Because what that would do is just make it worse.

There are those in the community that bring up health concerns in regard to legalising cannabis, especially issues around mental health.  How do you respond to these sorts of concerns?

These are really important concerns. They are fundamental to what we are dealing with. And what we have to do – and what underlies drug policy, whether it is licit or illicit or prescription – is that we are trying to find a way to have these drugs available with the least possible harm.

We know cannabis is harmful. However, we also know that the more you tighten down on policy, the greater the harm associated with it.

So, this is another small step. The last thing we need to do is to go and have a free market. To have this widely advertised and in the hands of industry. It would fall into the hands of the tobacco industry very rapidly, by the way.

All that would do is encourage more use. What we want to do is encourage less use. What we want to do is encourage the least possible use, with the least possible harm. And that’s what Michael’s legislation would certainly indicate the next step does.

ACT chief police officer Ray Johnson has warned that if the fining scheme is thrown out and use is legalised, cannabis users could receive far bigger fines and even gaol time, as ACT police officers would be required to enforce the federal drug laws contained in the Criminal Code.

What do you think about the concerns raised by officer Johnson?

ACT police will not be required to enforce federal drug laws, any more than they are required to enforce federal drug laws with regard to needle and syringe programs, or as currently, with pill testing.

They’ve taken a very progressive attitude to pill testing. And for 35 years, they’ve had a very positive attitude to the needle and syringe programs to reduce harm associated with the use of heroin and other injecting drugs.

I can understand the initial reaction. It’s just not thought through well enough. Michael Pettersson responded to the committee on this issue, pointing out that the federal legislation also contains clauses basically saying that they will act subject to state and territory legislation.

So, it’s not quite so clear cut.

The ACT is set to adopt the Vermont model. This will mean apart from the allowance for homegrown in the ACT, production and distribution would still be in the hands of the black market.

Do you foresee that following the legalisation of cannabis for personal use, that some sort of regulated market would eventually need to be established?

One of the most sensible suggestions I heard was from Professor Simon Lenton at the National Drug Research Institute at Curtin University.

Now, I do have to declare a conflict of interest here, as I’m the acting chair of the board of that institute.  But, I was not involved in putting their submission together.

They have suggested cannabis social clubs to avoid that very thing. A social club cannot sell. They can distribute, but they cannot sell. This is a method of undermining the black market.

And once again, with the bill to legalise small amounts with the notion of community markets like this, you need to build into the system an appropriate evaluation. Certainly, the National Drug Research Institute is capable of doing that style of evaluation.

Although, if they’re suggesting it, you probably wouldn’t get them to evaluate it. You would probably get it evaluated by the National Drug and Alcohol Research Centre at UNSW.

So, these social clubs would cultivate and distribute?

Yes. But, remember each one can only cultivate four plants.

And lastly, Mr Moore, the inquiry is underway, and the submissions are in. In your opinion is the legal use of cannabis going to become a reality in the ACT? And if so, do you think this development would necessitate similar changes in other jurisdictions around the country?

These things are always hard to predict. I had predicted that we would be running a heroin trial in the mid-1990s. It still hasn’t happened.

But, the debate that it opened did raise a whole series of issues. And it did change the approach and imbedded firmly the National Drug Strategy that still has the three pillars of harm reduction, supply reduction and demand reduction.

And these are the three pillars that really need to be examined in terms of any evaluation of this process.

I’m thinking it’s quite possible that it will go through. And I’m predicting that it will. And then other states will look at it and go, “Yea or nay.” But, it just depends how progressive those governments are at any given time.

Other governments won’t follow if the evaluation doesn’t indicate that there’s a reduction in harm, and probably, a reduction in use. So, that’s part of the reason that a very carefully constructed evaluation is so critical.

What we want to do is take the next step, evaluate it and say, “Yes. This is working,” or, “No. It’s not working. Let’s go back to the fining system.” That’s the sort of approach that’s the most logical and rational.

So, a review five years down the track then?

A review being conducted as it goes, with a reconsideration five years down the track, would be entirely appropriate.