What Happens To Past Convictions When Cannabis Is Legalised?

When Canada became the latest country to legalise cannabis last year, it was widely hailed a turning point, away from the so-called 'war on drugs'.

But some feel that too many people were left behind.

The country's Liberal government is now behind a push to expedite processing pardons for those with minor cannabis-related criminal records -- given they are no longer considered crimes.

It's part of an ongoing process to reverse what advocates claim to be decades of "historical injustice" from cannabis prohibition -- and they want legislation to go further by expunging, or clearing, such convictions from a person's criminal record entirely.

For various reasons, the case is a little more complicated in Australia, where cannabis is still a controlled drug under Commonwealth law.

IMAGE: Getty Images

But as jurisdictions grapple with the possibility of decriminalising or -- in the case of the ACT, legalising the drug for recreational use -- international approaches raise questions as to how dealing with past convictions would be written into law.

10 daily posed the question to drug experts who argued Australia's approach, whether or not cannabis is legalised in the short term, "should not hold people back".

What Are Australia's Current Laws Around Cannabis?

The laws vary across each state and territory, but in most cases, it remains an offence to be in possession of or to use, traffic, cultivate or supply cannabis.

Penalties can extend from a good behaviour bond or a fine, up to long periods in prison.

In South Australia, the Northern Territory and the ACT, where cannabis has been decriminalised, those who possess a small amount of the drug for personal use face either a caution or civic penalty.

READ MORE: Cannabis Clinics Won't Solve Anything For Those Who Can't Afford It 

READ MORE: Evidence On Medicinal Cannabis' Efficacy Divided

Stan Winford, Associate Director of the Centre For Innovative Justice at RMIT University, said police in Victoria will often consider cautioning first-time offenders.

"For people they first come into contact with, police might indicate that unless they engage in something like a treatment program, they will be charged," he told 10 daily.

Most states and territories have diversion schemes to deal with cannabis possession and use offences that work to divert people from the criminal justice system and into treatment, rather than to lay charges.

But, as found by the Victorian Drug Inquiry, eligibility for such programs can be inconsistent and is often discretionary.

LEGALISATION: Would Australia adopt A similar Approach?

Several jurisdictions around the world have now legalised cannabis, including Canada, Uruguay, Catalonia and some states in the United States.

In Australia, the ACT could soon legalise the drug for recreational use via a private member's bill from Labor backbencher Michael Pettersson that would remove possession under 50 grams as an offence, for adults under the its criminal code.

But what would happen to those who had previously been convicted?

READ MORE: Recreational Marijuana Is Now Legal In Canada 

READ MORE: The ACT Is Just One Vote Away From Legalising Marijuana

Jarryd Bartle, law lecturer at RMIT, said lawmakers would need to pass legislation expunging  -- or removing entirely -- prior convictions from a person's criminal record.

"I think that passing laws that reflect the 'war on drugs' approach didn't work needs to also reflect that people were convicted of offences that were not necessarily deserving of criminal offences," he told 10 daily.

Bartle said he was not aware of any decriminalisation proposals put forward that contained criteria to expunge previous convictions.

"In terms of legalisation, it's an ongoing issue whether or not previous convictions should act as a barrier for obtaining a licence to supply or sell," he said.

IMAGE: Getty Images

Winford agreed, pointing to the actions of subsequent state parliaments -- first in Victoria in 2014 -- that passed legislation enabling men who were prosecuted for engaging in consenting homosexual sex to have their criminal records expunged.

"Although homosexual sex wasn't an offence for quite some time, it wasn't until 2014 that people who had experienced discrimination, who had been excluded and simply felt it was unjust, were able to apply under the new laws to have those records cleared," he told 10 daily. 

I think there's a lot of force in the idea that if something is no longer an offence, why should it be something that continues to stay on your record?

Most states and territories, except Victoria, already have spent conviction schemes, where prior convictions are not disclosable on a person's criminal record after fixed waiting period  -- usually up to ten years.

"Spent convictions schemes are not perfect but they do to some extent ameliorate the impact of old and irrelevant criminal history," Winford said, cautioning they do not apply to some contexts such as working with children checks. 

Independent MP Fiona Patten has moved a private member's bill to enact a similar scheme that is "long overdue" in Victoria.

Despite the scheme being similar to expungement, both Winford and Bartle said the latter would be favourable.

"When an act of parliament removes a conviction against someone's name, the symbolic value of that is much higher than a spent convictions scheme," Bartle said. 

Featured image: Getty

Contact the author