Western Australia to Cite, Not Arrest, Marijuana Users Under State Government Plan 5/31/02

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Western Australia Health Minister Bob Kucera announced Sunday that the government would implement a system of "prohibition with civil penalties" for people caught smoking or possessing small amounts of marijuana. Under the Labor government proposal, cannabis would remain illegal, but people possessing less than 30 grams or two plants would be charged with a civil infringement, cited and fined. But police would retain the discretion to file criminal charges if they thought the law was being "flouted."

The measure drew praise from Australian Drug Law Reform Foundation state president Jason Meotti, who told the Western Australian that the move reflected growing acceptance of cannabis use in the state. But he did not address the discretion provision and he argued that removing the stigma could help those dependent on cannabis to seek help. "By taking it out of the criminal realm, people with cannabis use problems may actually seek help, particularly those who hold significant positions who may have been reluctant to come forward in the past," he said.

If Meotti was sanguine, the Labor proposal has already drawn fire from the Green Party, whose five members of parliament (MLCs) are crucial to getting it passed. MLC Chrissie Sharp said Monday that she would work to amend the discretion language, charging it would lead to corruption and uneven enforcement of the law. "If you have a policy of decriminalization, it should be clear and policed automatically, not left up to somebody's discretion," Dr. Sharp told the West Australian.

Even law enforcement officials who support the plan -- albeit with some misgivings about appearing to condone marijuana use -- have raised concerns about the discretion issue. "There is a risk with this sort of legalization, making it [cannabis use] seem like acceptable conduct," Western Australia Police Union president Michael Dean said. "I understand why they are changing the laws because it will free up police resources to focus on suppliers," he told the West Australian. "But I am concerned that the discretionary powers they plan to create could create confusion if the police service does not have clear guidelines."

The Labor proposal, which Kucera said would now be drafted and in place before the end of the year, is based on two years of meetings, studies and discussions throughout the state. It follows the recommendations of the recent report of the Working Party on Drug Law Reform (http://www.wa.gov.au/drugwestaus/), which in turn was based on the state's Community Drug Summit. The government cannabis provisions include:

  • People in possession of less than 30 grams or two placed may, at police discretion, be charged with a civil infringement and fined or charged with criminal possession. The stash gets confiscated in either case.
  • Thresholds for triggering distribution charges have been lowered. Under current law, possession of more than 100 grams or 25 plants is considered presumptive of dealing; under the Labor proposal, the threshold would be lowered to 100 grams or 10 plants.
  • Civil fines will range up to $200 and must be paid within 28 days. (Reformers have complained that under a similar ticketing scheme in South Australia, more people, especially the poor and the young, are ending up jailed for nonpayment of fines than were ever jailed for marijuana possession.)
  • Hydroponic grow operations, no matter how small, are not included.
  • Hashish and hash oil are not included.
"The reality is that cannabis is the most widely used drug in Australia," said Kucera. "Although only a minority of Australians would be considered to be dependent users, 39% of all Australians aged 14 and over have used cannabis at some point in their lives. The proposal put forward by the Working Party on Drug Law Reform offers a new way forward. Research has shown that people with minor cannabis convictions can have problems with employment, difficulty in obtaining accommodation, travel problems and an increased risk of future contact with the criminal justice system. But research also shows that applying civil, instead of criminal, penalties for the personal use of cannabis does not lead to an increased proportion of the population using the drug."

With the opposition Liberal Party having declared against the civil penalty scheme, Labor will need the votes of Green Party members to obtain a majority in parliament. Now, as the issue of discretion to file criminal charges takes center stage, the struggle to determine whether the new cannabis law will be a half-step forward or a quarter-step forward begins.

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