An Illicit Benefit: The Legalisation of Cannabis in the A.C.T.-2019

The Australian Capital Territory is the first jurisdiction within Australia to legalise cannabis. The way in which the media has handled the unfolding of the new law has highlighted just how problematic our current understanding of illicit substances really is. The legislative changes that have taken place are currently being debated across the public discourse with a focus on the legal implications. Given that there have been no changes to Commonwealth drug laws, the new laws in the ACT are in direct contradiction with the Federal law which stands in strong opposition to the decriminalisation or legalisation of current illicit substances. Cannabis was first made illegal in Australia in line with the 1925 Geneva Convention which was organised by the League of Nations (Wodak cited in Gregoire, 2014). Very few Australians had even heard of the substance at the time and the restriction was faced with very little backlash. It has remained an illicit substance for almost 100 years with the last few decades sparking increased visibility and debate. The global perception of cannabis is slowly changing with more places around the world legalising the plant for both medicinal and recreational purposes (The Economist, 2019). In modernity binaries tend to dominate our thinking and as a society this is extremely prevalent within the discourse of drugs (Dennis, 2019, pg. 40). Many assumptions surrounding drugs stem from this dichotomous thinking including the misconceptions of legal=good/ illegal=bad, or; prescription drugs= medicine/illicit drugs=harm (Dennis, 2019, pg. 40). Regardless of its legal status in Australia, cannabis continues to be the highest consumed illicit substance in the country with rates in the 1990s suggested to be the highest in the developing world, even surpassing nations with a more explicit weed cultures such as Canada or the US (Roxburgh et al. 2010, pg. 1071; Hall, 2007, pg. 712; Wilson et al, 2014, pg. 169). I will begin this essay with a brief historical construction of cannabis which is crucial to understanding the current perception of this plant. Following on will be an analysis of two particular articles that were written in the days following the legislative announcement. The way in which criminality is understood is challenged and discussed in regards to particular bodies. The focus on health from the perspective of politicians will also be interrogated and compared to other substances to highlight the double standards currently in play within the public discourse. The final part of the essay will consider different approaches to cannabis, namely from the perspective of the user. Assumptions of ‘the user’ is also discussed as well as the implications of those assumptions on existing research within the field.

The perception of cannabis has changed significantly over time. Historically speaking cannabis has been used for medicinal purposes for thousands of years with evidence showing it goes as far back as 400AD (The Economist, 2019). In the US context the ‘reefer madness’ hysteria that dominated the public discourse in the 1930’s painted cannabis in a particularly negative light as it was considered to be associated to different racial groups including Mexicans and the African American community (Lopez, 2016). The next big moment for cannabis within popular culture was the 1960’s and the counterculture movement as some have suggested “the drug’s effects [reflect] a perfect metaphor for the alternate reality that the counterculture hoped to effect” (Weiss, 2015). The counterculture movement moved across the global and even reached Australia where previously recreational drug use was not a concern of the government (Lee & Bartle, 2019). History is vital to understanding the current contemporary construction of substances such as cannabis and the role that globalisation and the political economy have played cannot be undermined. In regards to global power, there is no doubting the political significance of the United States, particular for other Western Nations. In the context of drugs the US has been at the forefront of the ‘War on Drugs’ with policies in place that create more social harms than any physical harms the laws are intended to curb, with some going as far as labelling it “the most tragic and abject failures in the history of public policy” (The Age, 2016). In 1994 the domestic policy chief for President Nixon John Ehrlichman was quoted as explicitly recognising the racism embedded in the war on drugs; “We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities… Did we know we were lying about the drugs? Of course we did” (Ehrlichman cited in Lopez, 2016). Although the explicit racism here stems from the US context, Australian drug laws also have a history of racism stemming back to the race-driven opium laws at the beginning of the 20th century (Lee & Bartle, 2019). For many contexts drug prohibition has been used as a tool to repress public dissent. The impacts of this deception are still being felt globally as no evidence has yet to be found that the prohibitionist approach has reduced the rates of supply of illicit substances, and instead has become the barrier between people seeking help while simultaneously increasing social harms and organised crime (Lee & Bartle, 2019; Hall, 2007, pg. 714).

In the majority of reporting in the days following the territory’s announcement the problem is presented as an inherently political one and frames the debate as a battle between the state and federal governments (Lowrey, 2019; Australian Associated Press, 2019; Karp, 2019; Mannheim, 2019). The guardian presented an article on the 27th of September with a number of quotes from Josh Frydenberg speaking on behalf of the Morrison Government stated that the Federal Government was not in support of the new legislation and described “drug use as criminal behaviour” (Karp, 2019, emphasis my own). Frydenberg’s remark suggests that he views laws as objective and existing outside the social reality of Australian society. He fails to recognise the “discourse, practise and politics” that have constructed our contemporary perception and legislative practices as he demonstrates a constructionist approach to the problem (Fraser & Moore, 2011, pg. 2). To assume that concepts or problems such as ‘crime’, ‘criminal’ or even ‘drug’ have fixed meanings would be to completely ignore the sociality of our existence as Bacchi argues “they [problems] are never exogenous to (outside of) social and political practices”(Bacchi, 2017, pg. 2). Kane Race suggests that the policing of consumption practices in regards to illicit substances is never an even playing field and that certain bodies are targeted within “an intense but superficial battle between the amoral market and the moral state” (Race, 2009, pg. 60). Taking this into account, Frydenberg is complicit in perpetuating the existing understandings of what is a crime, and who is already seen within society as a criminal. Consider the heavy police and sniffer dog presence at Redfern Railway station, where you are six and a half times more likely to be searched as compared to Central station (another station notorious for a considerable police presence). This is no mistake given the high population of young people, and a large Aboriginal community (Gregoire, 2015). Therefore there is not only a preconception of what ‘criminal’ behaviour looks like in the eyes of society, but there are also particular bodies that are considered more criminal than others and are actively targeted in operations that attempt to undermine the ‘drug problem’. Speaking to Vice, trans activist Stephanie McCarthy claimed that she has been searched by the NSW police within the Sydney rail network 6 times over the last year while not once having any sort of illicit substance on her (Gregoire, 2015).

Underlying the strong opposition of the Federal Government are a number of assumptions framed from a ‘health’ perspective. In the same Guardian article mentioned above Federal ministers were quoted as highlighting the health risks involved with cannabis consumption. The health minister Greg Hunt was quoted as saying he was “very concerned” about the health implications of legalising such a substance (Karp, 2019). It is clear from this quote that within drug discourse many double standards exist and that there are a number of legal substances available on the market that also pose health threats, specifically alcohol and tobacco. The leading assumption here comes back to our dichotomous understanding of illicit substances, and the belief that substances that are legal are not bad for your health. Fraser and Moore argue that science has dominated drug discourses and knowledge production while simultaneously overlooking social and structural implications associated with drug use (Fraser & Moore 2011, pg. 1-2). The state’s relationship to particular types of substances has less to do with harms and health and more to do with history and political motivations as the introduction has touched on. In 2010 a panel of experts reviewed and ranked 20 legal and illegal substances and measured them in regards to harms to the user and to wider society including health impacts, economic impacts and crime. They found that the most harmful substance currently available on the market is alcohol with a significant risk of harm to others (Lee & Bartle, 2019). Cannabis was ranked much lower down the scale and mushrooms were considered the safest substance to consume. While the media has focused on the legislative confusion, these statistics highlight the false assumptions underlying the Federal governments opposition, namely that illicit substances are inherently bad for your health.

Taking a slightly different approach to the issue was Rachel Clun writing for the Sydney Morning Herald. The problem presented here is also a political clash between the Capital Territory and the Commonwealth however she has chosen to represent voices from the other side of the debate as opposed to the articles above. She opens her article by suggesting the new legislation would be a “micro-experiment” that she believes will potentially “pave the way for further decriminalisation” (Clun, 2019). Stepping away from the morality of the issue she suggests that regardless of your position, this new law will allow research that is currently lacking within the field to be undertaken as the threat of criminality will allow more people to engage with researchers and medical professionals. An interesting contrast between the Guardian article and Clun’s is the (brief) mention of who the opposing Federal Government is actually targeting; “ACT Chief Minister Andrew Barr said the federal government should focus on organised crime drug trade rather than the territory’s cannabis legalisation” (Clun, 2019). The new legislation allows for Canberrans to grow up to two plants (four per household) and posses up to 50 grams of cannabis, while certain aspects simultaneously remain illegal; offences including supply (regardless of monetary exchange) as well as  hydroponic cultivation (White, 2019). As already discussed the most visible way law enforcement attempt to curb the drug ‘problem’ is through deployments of highly trained dogs who ‘sniff’ out illicit substances. The use of drug-detection dogs in public spaces (predominately in the state of NSW) have proven completely ineffective and does very little to limit drug supply. In fact evidence shows that the practise actually increases risky behaviour and is even linked to ongoing trauma, specifically for those within already marginalised groups (Malins, P, 2019). The majority of those facing prosecution following the enforcement of dogs have been low-level users, with evidence showing that only 4.8% of incidents resulting in a supply offence (Hughes & Agnew-Pauley, 2019).

What remains completely unspoken throughout all of these representations are the harms and impacts associated with legal substances. According to the ABS “tobacco smoking is one of the largest preventable causes of death and disease in Australia with smoking estimated to kill almost 19,000 Australians a year and responsible for 9.0% of the total burden of disease in Australia in 2011” (ABS, 2019). While the rates of smoking have significantly decreased due to higher taxation over the last decade tobacco remains available to consumers as a licit substance. There is almost no public discourse on the morality of tobacco smoking within Australia nor around the high consumption rates and health impacts of alcohol. The most widely consumed substance both within Australia and globally is alcohol, a substance that was a contributing factor in 4,186 deaths in Australia in 2017 (ABS, 2018). The World Health Organisation estimates that there are over 3 million deaths every year as a result of alcohol and that approximately 5.1% of the global burden of disease and injury are also attributed to the substance of alcohol (WHO, 2018). Alcohol (and tobacco) are often disregarded when there is a discussion surrounding ‘drugs’, as Derrida has argued “the concept of drugs is not a scientific concept, but is rather instituted on the basis of moral or political evaluations: it carried in itself both norm and prohibition, allowing no possibility of description or certification- it is a decree, a buzzword” (Derrida cited in Fraser & Moore, 2011, pg. 10).

The way in which drugs are presented within public discourse, namely from the media and through the opinions of powerful political figures can have a number of effects on public understanding and may be classified as discursive, subjectified or lived effects as identified by Bachhi (Lancaster et al, 2015, pp. 142-143). The historical construction of cannabis can help to understand discursive effect which is the impact that the represented problem has on the possibilities of “what can be thought and said”. The discursive implications are evident in the limitations of understanding of cannabis as deviant/criminal behaviour and further restricts the possibility of cannabis being framed as something positive or beneficial to an individual’s health or even to the wider society. We can see an example of subjectivities being produced through discourse in the remarks made by Frydenberg above, implying that those who engage in illicit drug consumption are already viewed by society as criminals regardless of the motivation behind the use. The third effect Bacchi discusses as a consequence of problem representations are the real material repercussions in people’s lives (Lancaster et al, 2017, pg. 118). Without a doubt the most devastating lived effects on those who consume cannabis have been those that have suffered through a criminal form of punishment (Hall, 2007, pg. 712).

Young people and drugs have a long history of association which has had a significant impact on the way in which illicit substances have been researched and understood. Regardless of its illegal status, the normalisation of drug use has permeated through the Western world. There are countless references to drug use in popular culture with many examples of glorified drug use and sub-genres of film including ‘stoner flicks’ (Dolginki, 2015). According to the Australian Government Department of Health “drug use is a fairly normal part of growing up… Risk-taking is also a normal part of development and experimenting with psycho –active drugs is just one of the many risks that some young people will take during this time of great change” (Commonwealth of Australia, 2004). Even though the government is aware of how normalised drug-taking is within the Australian culture, there is still a failure to implement true harm reduction processes. In order to attempt to understand the normalisation framework of illicit substance use, Parker et al. suggested there are 5 components to consider: “availability and accessibility of illicit drugs; illicit drug trying or lifetime usage rates; rates of recent and regular illicit drug use, social accommodation of illicit drug use and cultural accommodation of illicit drug use” (Parker et al cited in Wilson et al, 2010). The cultural accommodation of illicit drug use, specifically cannabis, has an extensive history and highlights the argument that criminalisation is the most harmful aspect of cannabis use (Hall, 2017, 713). Young people are not the only group of people specifically associated with illicit drug consumption as recent discussions surrounding welfare recipients and drug testing have made quite clear (Henriques-Gomes, 2019). While there are a number of flaws with the proposed drug-testing of welfare recipients, evidence suggests that more than half of lifetime users aged over 14 years of age are currently employed and 47% hold post-school qualifications, which again challenges existing ideas of who uses drugs (Lee, 2019).

Normalisation is not a generalised phenomenon and as Wilson et al. has suggested we need to consider the different social and cultural contexts through which the drug consumption is occurring. The use of normalisation is often used in conjunction with research on younger cohorts of the population. However a study conducted by Roxburgh et al. found that daily use was most prevalent amongst 40-49 year olds directly challenging existing assumptions of who the ‘user’ may be (Roxburgh et al. 2010, pg. 1073). More recent research confirms that older populations are often the most concentrated cohorts of regular and/or lifetime use (Lee, 2019). Existing drug research has been dominated by a focus on young people and has continued to focus on risks rather than benefits. Chatwin and Porteous took a different approach to their research and engaged with ‘responsible’ long term users to investigate their motivation for use and the impacts on their social engagement with society (Chatwin & Porteous, 2013). They also challenged the saturation of quantitative research within the field of drug studies and suggest a more qualitative approach will better inform the public health agenda (Chatwin & Porteous, 2013, pp. 236-237).

Chatwin & Porteous discovered there were three main reasons long-term users continued to engage in cannabis consumption. The first reason was pure pleasure, a concept which has been discussed in a range of different contexts by numerous scholars (Becker, 1963; Race, 2012). Cannabis and pleasure, as argued by Becker, are not automatically linked through consumption, rather cannabis users learn to enjoy the experience of consuming the ‘drug’ which is in itself ambiguous (Becker, 1963, pg. 42). Pleasure is a key motivator as to why we do a lot of things in life, and many sources of pleasure are often regarded as bad for your health, drugs being an excellent example. Race argues that drugs as medicine is legitimised through its function to restore the body back to its normative state, in comparison to ‘non-medical’ drugs which people engage in for predominately recreational and enjoyment reasons (Race, 2012, pp. 1-2). The dominance of a scientific/medical discourse surrounding the topic of drugs feeds this dichotomous understanding of medicine vs. ‘drugs’ and the assumptions that one is inherently good and the other as inherently bad. Barad also challenges our understanding suggesting that material objects are neither purely the product of discourse, nor entirely determined by their supposed intrinsic material attributions (Barad, 2003, pg. 819). In line with Becker’s suggestion that aspects of drug consumption are learned pleasures, the criminal aspect currently still attached to cannabis use must also be taken into consideration given that “pleasures that emerge in consumption events extend beyond the physiological (or pharmacological) effect of the drug itself” (Duncan et al, 2017, pg. 182). Removing the criminal aspect of cannabis consumption will subsequently increase the pleasure the consumer derives from the activity.

The second reason found for long-term use were motivations that centred around health and wellbeing, both in regards to specific health-related issues such as colitis ulserosa, ADHD, Asperger’s syndrome, as well as more generalised conditions such as stress or anxiety (Chatwin & Porteous, 2013, pp. 246-247). This particular finding directly challenges the authority allowed by medical and scientific discourses in the wider discourse around drugs. While many in Chatwin & Porteous’ research admitted to self-administration of cannabis-as-medicine, some had discussed their consumption of cannabis in relation to other prescriptions stating “I have suffered from colitis ulserosa since the age of 10, which was treated by prescription drugs but continued to rumble on until I started smoking dope when it went into total remission” (Chatwin & Porteous, 2013, pg. 246). Again this challenges the authority of medical practitioners as gatekeepers of (substance) morality.

When we take these constructions into consideration it is clear that medicine plays a juridical role, “in which medicine takes on the symbolic and political role of social order and moral control, expressed, when advantageous, through the punitive mechanisms of the law” (Race, 2012, pg. 60). By defining drugs through the binary of medicine/(illicit) drugs the government is able to control the bodies of those within the society through the construction of morality enforced through a discourse of medicine and science.

With medicinal cannabis on the rise globally the ignorance of the possible benefits of cannabis by political entities is greatly impacting the relationship between citizens and those with power/authority. It highlights the government’s propensity to ‘pander to fear’ rather than engage with evidence based research to enforce a cultural and political shift in the way we handle drug issues. Many governments, across different times and contexts, have argued that their hesitations around cannabis as a substance stem from the concern around health. Yet they continue to treat the issue as a law and order issue completely contradicting themselves as they fail to practise what they preach. In their research Hall found that criminal punishment did not deter users from using again, as they believed that the personal benefits of using the substance outweighed the risk of criminality (Hall, 2007, pg. 715). It is not just users who are sceptical about the information provided by the government as the latest National Drug Strategy Household Survey from 2016 found that 84.4% of Australians are in support of legalising medicinal cannabis and the support of recreational legalisation is also increasing; 26% of Australians supported recreational cannabis legalisation in 2013 which increased up to 35.4% in 2016 (Bartle, 2018). This essay has highlighted the political nature of drug ‘problems’ and has attempted to challenge existing assumptions surrounding the issue.

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