NSW Refuses to Decriminalise Cannabis, Despite Top Lawyers Telling Inquiry It’s High Time

Established in March this by the Premier and Finance Committee, the NSW parliamentary inquiry into the state’s regulatory framework for cannabis has as a chief concern whether to decriminalise the widely recreationally used, yet still illegal, psychoactive plant.

Yet, on the first day of inquiry hearings, 1 August, NSW premier Chris Minns responded to a question regarding it during a presser, that he went to the election “promising we wouldn’t change the law in relation to decriminalisation and we’re not going to… break an election commitment.”

This denial of a potential outcome of an inquiry that’s only just gotten underway makes the entire taxpayer-funded investigation a sham, especially as the majority of submissions pointed to decriminalising, and the national household drug survey found that 80 percent of the nation agree.

And on the first day of hearings, top legal minds argued in favour of the process, and this included the state’s longest serving Director of Public Prosecutions Nicholas Cowdery KC, as well as Australian Lawyers Alliance (ALA) criminal justice and human rights spokesperson Greg Barns SC.

Indeed, so much has the opinion of NSW gone against the grain of what the premier is now trying to impose upon it, that in the 2023 election, for the first time, a Legalise Cannabis NSW MLC, that being Jeremy Buckingham, was elected into the state upper house, and now he’s chairing the inquiry.

Terms of inquiry denied

The terms of the inquiry are clear. The committee and those providing evidence are to consider how the current laws developed, their socioeconomic impact, the financial cost of prohibition to government and the economy, as well as the impact it has upon various parts of the community.

The impact upon a variety of groups, includes young people, First Nations peoples, LGBTIQA+ people, multicultural communities, those living in regional areas and those from lower socioeconomic backgrounds.

Alternatives to cannabis prohibition are too to be considered, and in particular, Buckingham’s Drug Misuse and Trafficking Amendment (Regulation of Personal Adult Use of Cannabis) Bill 2023, which calls for decrim, homegrow with a six plant limit, as well as the ability to “gift” cannabis to others.

Other key considerations are road safety, the current NSW roadside drug driving scheme, public health and the notorious impact cannabis has on the state’s criminal justice system, whether that be in excessive use of police time, or the imposition of drug dogs and accompanying strip searches.

As Buckingham told the ABC, after the NSW premier shot down the majority desired outcome of the inquiry, which appears to be a new Labor tactic when it comes to such inquires, “Chris Minns can’t continue to stick his head in the sand”: a charge usually reserved for Coalition premiers.

A noted voice of experience

The NSW Special Commission into the Drug Ice recommended decriminalisation. And that the outcomes of this inquiry could be dismissed like that of the ice inquiry, led Cowdery to remark that “there were extremely well informed” people involved in that inquiry, so that idea is “a disgrace”.

The former NSW DPP of 17 years, and criminal defence barrister for 25 years before that, said in a statement released after his inquiry appearance that “most people who use cannabis lead ordinary lives and do not experience drug dependency” and this accounts for about 700,000 Australians.

“There is consistent evidence that decriminalisation doesn’t encourage cannabis use or increase cannabis taking in the community,” said Cowdery, who was representing the NSW Council for Civil Liberties (NSWCCL) at the inquiry, as he is one of the organisation’s past presidents.

“In fact, decriminalisation may have the opposite effect, as more people are able to access advice and support and treatment for any problematic issue resulting from cannabis use,” he continued, adding that those with problematic drug use, benefit from health and social responses, not prison.

“However, we need action now,” the esteemed barrister continued. “The CCL is deeply concerned about the unacceptably high level of First Nations people in custody and the general overpolicing of First Nations people in NSW, including in relation to cannabis.”

“The appalling overrepresentation of First Nations people in the criminal justice process in comparison to the general population is a crisis that successive governments have lumped into the too hard basket,” he underscored.

The reform the constituency desires

Currently, individuals caught by police in possession of a small quantity, 30 grams or less, of cannabis are charged with drug possession, contrary section 10 of the Drug Misuse and Trafficking Act 1985 (NSW), which carries maximum penalties of up to 2 years imprisonment and/or a fine of $2,200.

NSW Bureau of Crime Statistics and Research (BOCSAR) figures show that over the period 2017 to 2021 of the 34,419 arrests in regard to drug possession, 18,123, or 52 percent, were due to cannabis. And this is despite officers having the discretion not to charge people in possession of the plant.

In operation since 2000, the Cannabis Cautioning Scheme allows NSW police officers to simply caution adult civilians in possession of a small amount of cannabis. Although, individuals can only be cautioned twice under the scheme, which means a third incident results in a charge of possession.

However, there are clear issues with this scheme in terms of the prejudice of NSW police, as BOCSAR found that over 2017 to 2020 of all the people found in possession of cannabis, only 11.7 percent of First Nations people were cautioned, compared to 43.9 percent of non-Indigenous people.

Cannabis decriminalisation would result in the removal of criminal sanctions, so that the negative impacts of being caught in the criminal justice system would be removed. And this could be replaced, as is the case in the ACT, with the imposition of a small fine or taking a drug counselling session.

The evidence is clear

Despite Minns having shot the inquiry in the foot on its first day of hearings, there are two more days left. And if the evidence presented by key experts in the community continues to be overwhelmingly in support of decrim, one would expect an elected premier would have to reconsider the evidence.

Barns told the inquiry that “the thrust” of the ALA position is the negative “fiscal impact” of prohibition, especially in terms of law enforcement, as well as the positive evidence coming out of jurisdictions, like the 24 US states and Canada, where it’s either been legalised or decriminalised.

The renowned barrister added that the evidence from international jurisdictions shows it takes pressure off the courts, it doesn’t lead to increased crime, there’s been no noted rise in people taking up the use of the drug and in the US and Canada, there’s no proposal for rolling this back.

“I also say this,” Barns continued. “I have never acted for a person who commits assaults or family violence as a result of using cannabis. They do in relation to speed and various other drugs.”

“As a magistrate who runs a drug court once said to me, he’d rather people be on cannabis and get off ice, because they’re much less likely to commit an offence,” recalled the barrister, who has long advocated for drug law reform.