Justice & Reform: 2025 David Penington Oration Champions Cannabis Policy Change

I want to take you on a journey through the years, but before I do, I just want to shed some light on a simple concept you’ll hear several times today called harm minimisation. We apply harm minimisation strategies to many areas of human activity. Seat belts, speed limits and traffic lights are all part of a broad harm minimisation strategy that prevents harm on our public roads. In the context of alcohol consumption, harm minimisation includes age limits in hotels and restaurants that sell and serve liquor, it includes limits on the level of blood alcohol of people driving vehicles. In the context of drug use, there are many harm minimisation strategies including making sterile injecting equipment freely available to avoid communicable diseases arising from sharing syringes, it also includes providing safe injecting rooms, and other strategies that we will touch on shortly.

Let’s start that journey.

It’s a journey across my adult lifetime; starting with me as a student in the 1970s, and covering my time as a lawyer, as the head of Victoria Legal Aid, serving as the Supervising Magistrate of Victoria’s Drug Court.

It’s a story that I hope provides a suitable tribute to the legacy of David Penington.
David championed rational and compassionate drug policies, I hope today’s oration is a timely reminder that the community’s current approach to drug policy still falls well short of his aspirations to have our policy-makers and our parliaments address harms caused by ineffective drug policies.

So, this speech isn’t strictly about me; rather it’s about what I’ve seen and learned because, to some extent, I’ve had a front-row seat to the failures, follies and successes of drug policy in Australia over a long period.

I’ve seen what communities can achieve when we have foresight and ambition, and when we ‘do the hard work’ in the pursuit of drug policy progress.

And I’ve also seen what happens when we do nothing. We are 25 years into the now not-so-new century and some of the simplest and most effective drug policy reforms still elude us and leave us supporting failed policies that continue to do real harm in the community.

But fear not! Progressive policy thinkers, like the organisation that bears David’s name, have proposed a logical next step. A clear pathway for reform with which we can challenge our parliaments and policy makers.

More on that later…

Every good story has a beginning, and mine starts in the summer of 1972 when I first started to really understand positive impact of progressive public policy reform. 

[1972] On 2 December 1972, for the first time in 23 years, the Liberal Country Party lost the federal election and the Australian Labor Party, led by the political and physical giant, Gough Whitlam, was swept into power riding high on a tsunami of popularity summarized by the unforgettable slogan “It’s Time.”  

I’d just turned 19 and had completed my first year of science at Monash Uni.  

I was not eligible to vote in that election. But I was eligible to be conscripted into the army, to go to jail for not registering for conscription, and to die in a war in Vietnam on the other side of the equator.  

Two months later, I returned to Monash to begin my second year of uni. So much had changed in that short time:

• Conscription had been abolished and the draft resisters released from prison,
• The withdrawal of Australian troops from Vietnam was well advanced,
• Tertiary education was now free,
• A free universal health scheme called Medibank was being planned,
• A new Family Law Act providing no-fault divorce was being drafted, and
• The development of Aboriginal land rights and environmental protection legislation was in its early stages.

My lefty mates and I surveyed this dramatically different political environment, looking for the next great political challenge and I confess we weren’t at all sure there was anything left to do! Until someone said:  

“Wait a minute! Gough forgot to legalise drugs! People are still being busted every day for possessing and smoking dope!”

At last, the wandering, lost tribes of University radicals had a new cause to pursue and began to organise and look for opportunities to influence change.  

[1974] By 1974, and with no meaningful reform yet apparent – enter Mr Jim Billington, a 35 year old, articulate, utterly charming hippie with a plaited pony tail, colorful embroidered jeans, and a very, very sharp mind.  

He established the ‘Cannabis Research Foundation of Australia’ with its headquarters in Greville Street, Prahran and assembled an Advisory Committee of luminaries from the legal and scientific communities which added respectability to the Cannabis Research Foundation, its primary goal being to legalise cannabis.  

The organisation was funded by public subscription and also, according to Victoria Police, “the selling of green vegetable matter in the car park behind the Greville Street office”.

Two raids by the drug squad put a firm stop to that alleged activity and, wisely, Mr Billington decamped to Sydney to establish the Foundation offices there, and a little later in South Australia and the ACT.

So, while not entirely a national activist organisation, it certainly had a strong presence in the populous southeast quadrant of the continent.

[1977] The year of 1977 proved a significant year for cannabis reform for three reasons:

1. The 1977 Senate Standing Committee on Social Welfare Report: Drug Problems in Australia – An Intoxicated Society? The Baume Report declared:
“Drug use arises within a society of which we all are part. All people use drugs, and blanket moral protestations of their evil are largely hypocritical”…“The lack of rational debate on the cannabis problem inhibits the development of rational methods of control of cannabis use, and also rational discussion and action in relation to the more serious problem of opiate use.

In summary the Standing Committee recognized that the legal classification of cannabis as a criminal offence caused harm to the user, quite apart from the drug itself. Their report recommended that: possession of marijuana for personal use  

(a) Should not be defined as a crime, 

(b) Should only attract a fine of a fixed amount,

(c) with a court appearance being optional,  

(d) With no record of conviction to be used in subsequent proceedings or in relation to any form of employment. 

As a moment in the history of cannabis policy, this was a huge breakthrough…the first time in modern Australia that a parliamentary body recommended a reform of cannabis policy founded on principles of harm minimisation.

2. 1977 also saw the formation of the AMP – not the Australian Mutual Provident Society, but the Australian Marijuana Party. In the December Federal Election of that year it stood senate candidates in three states: Victoria, New South Wales and South Australia, and received 50,000 first preference votes, prompting the Australian newspaper to declare: “A surprisingly good showing by the Australian Marijuana Party…making them, in effect, the fifth best supported political party in the country”. The campaign attracted huge media interest. 

3. Finally, also in ’77, the outrageous first edition of the quarterly newspaper, The Australasian Weed, was published out of Melbourne by Noxious Weed Press, which was closely aligned with the Australian Marijuana Party.  Under the heading “Extremist Literature on Cannabis” it was described by the Senate Senate Standing Committee, just mentioned, in these terms: 

“There has grown up a whole corpus of literature which extols and promotes the use of cannabis in a quite unscientific and polemic fashion…and recently these publications have made their way onto the bookshelves of legitimate stores and newsagencies. It is sold under the title ‘The Australasian Weed – All the Dope on Dope’. . . . We are distressed that such material is made available through legitimate and otherwise responsible retail outlets, which apparently have some market for this kind of literature.’

Side Note – Publication Classification Board immediately slapped a ban on the AAWeed, widely reported and immediately the whole print run sold out.  
                Next Seed,
                    Need,
                                Greed,
                                EED – no ban, – no publicity & very few sales,
                                EED#2 nothing, Noxious Weed Press closed its doors 

[1978] In 1978 the NSW Parliament’s Progress Report of its Standing Committee on Drugs and Drug Use forthrightly stated: “It is abundantly evident that there are a great number of sane, balanced and rational people, many exercising unquestionable adult responsibility, who are using cannabis…without any obvious impairment to either themselves or to society. These people are to be found in all walks of life. It would…be folly to ignore…the growing social stress which must be arising from the fact that a great many young adults, by indulging in a drug which they see as less damaging than alcohol, run the risk not only of involvement with the criminal law, but also have the prospect of ruined careers (if they attract a criminal record)… Indeed, it must be a matter for serious concern that we are spending…vast sums on their education and training which will be wasted of they are dismissed because of a criminal record…for (this criminal) offence”. 

[1979] This was followed in 1979 when the South Australian Royal Commission into the Non-Medical Use of Drugs published the Sackville Report – an extensive report – recommending the adoption of a partial prohibition model to permit the private cultivation or use of cannabis, including small-scale gratuitous distribution to household members or friends, while not allowing commercial forces, other than those already existing in the illicit market, to operate.

The Commission further noted that partial prohibition was: 

“… likely to make some inroads into the illicit market itself, since cultivation of cannabis for personal use will be permitted and some users may turn to personal cultivation away from the illicit market.”

1979 also saw the declaration by cannabis law reform activists of the first National Marijuana Day, on 9 November: Thousands occupied city streets in every state capital including the Bourke Street Mall with a march down Swanston Street, in Hyde Park in Sydney, in Festival Plaza in Adelaide, and in King George Square in Brisbane as well as the other capital and major rural centres.

[1981] In 1981 the First International Cannabis Legalisation Conference took place in, of course, Amsterdam where, since 1976, coffee shops had been legally supplying customers with cannabis, as such establishments continue to do so today.  

Australia sent a delegation of just one person – me!  

Co-incidentally, 1976 was also a most significant year for the modern evolution of medicinal cannabis when US citizen, Robert Randall, won a legal battle to be the first person in the USA to be provided with medicinal cannabis, in his case to treat glaucoma. I met Robert Randall and his wife Alice O’Leary at that conference. Robert, internationally recognized as the father of the medicinal cannabis movement, passed away suddenly in 2001 but Alice continues the campaign for wider access to medicinal cannabis – we renewed our acquaintanceship earlier this year, 44 years later – at a medicinal cannabis conference in Brisbane and we are honoured that today Alice is attending this oration online from Florida, where, I add, it is 3am. We salute you, Alice!

[1983] Here in Victoria, the 1980s brought an historic Labor government to power. After 27 years in Opposition the Cain Government was full of reformist zeal. In 1983, it enacted the Drugs Poisons & Controlled Substances Act, replacing the Poisons Act 1928.  

This new, progressive legislation, developed under the stewardship of Health Minister David White, was the first of its kind in Australia. It replaced the maximum penalty of 12 months jail for using ‘Indian hemp’ with a maximum fine of $500 and, absent any evidence if trafficking, the new law required courts to impose a non-conviction good behavior bond for possession, use or cultivation of cannabis for first time offenders.

It was modest reform but certainly in the right direction and a fine example of the Victorian Parliament taking a leading role in this area of law reform, and other jurisdictions soon followed Victoria’s lead… 

[1987] Legislative reforms continued through the 1980s with the South Australian Government moving in 1987 to introduce the notion of a “simple cannabis offence” being possession of up to 100 grams of leaf or 20 grams of resin or growing one plant.  

The new law dealt with such offences by issuing an “expiation notice”, essentially an on-the-spot fine which, if paid, ends the matter. An expiation notice does not constitute an admission or finding of guilt, so no criminal record arises and no court appearance is required.

[1989] This was followed in 1989 when the Australian Capital Territory put in place a Simple Cannabis Offence Notice (SCON) Scheme. Under that scheme, police issued offenders with a $100 fine, payable within 60 days, for cannabis possession or cultivation of threshold amounts being: 25 grams of cannabis or 2 non-hydroponic plants. 

For those of us who had commenced our adult and professional lives in the aura of the Whitlam Government’s reformist zeal, there had been some sense that, as the ’80s moved ahead with sensible drug policy, reforms would continue into the 1990s in our parliaments.

But unfortunately, that wasn’t the case.

There was a brief glimmer of further significant reform in a major state when in 1996 the Liberal Premier of Victoria, Jeff Kennett, set up a drug advisory council – chaired, I might add, by Professor David Penington – to find a solution to illicit drugs.

Based on Australian and international experience and advice that prohibition and policing were both ineffective and promoted criminal involvement and substantial harm, that word harm again, the Council recommended that marijuana should be decriminalised and a heroin injecting trial initiated. While the recommendations won the support of Premier Kennett, elements of the Coalition Party Room closed ranks and halted any prospect of reform.

Furthermore, any hope that the era of reform might continue ended with a thud in 1997, when the Howard Government launched the National Illicit Drug Strategy called “Tough on Drugs”.

The strategy committed more resources to drug law enforcement underpinned by Prime Ministerial declarations of “zero tolerance”.

Just a few short years after the door of sensible drug reform had apparently been shut, my career took a significant turn that once again which put me in positions which highlighted the urgent need for policy reform in the way we deal with issues of drug use. 

On completion of my law degree and given my background of activism in drug law reform, the only lawyers willing to offer me employment were a small firm of four lawyers practicing in criminal law. Doubtless they were hoping I would attract clients – and so it was.

That firm was based in Fitzroy Street, St Kilda. Working in the St Kilda of the 1980s and ’90s was my first exposure to people addicted to heroin – not the lawyers I hasten to add, but the clients.  

They were young adults. In the case of women, they paid for their heroin, and came to the attention of police, mostly through street-based prostitution and small-scale theft. It wasn’t too hard to help them stay out of prison but they led sad, wretched lives, and they aged very quickly. The males of this young group really had little option but to steal cars or burgle houses, shops or other commercial premises. It was much harder to keep them out of jail.

My second job, commencing in 2000, was the role of managing director of Victoria Legal Aid, still this state’s largest criminal and family law practice which, at that time, employed 250 lawyers and, in partnership with the private profession, providing legal representation in 42,000 cases annually. 

I had gone from one of the State’s smallest legal practices to one of the state’s largest. The latter job once again highlighted the vulnerability of people when our drug laws are not predicated on the notion of harm minimisation. The destruction of addicted lives, the loss of hope engendered by lost years in jail, at huge cost to the community, was similar to my Fitzroy Street experience but on a grand scale at Legal Aid. 

However, I’m pleased to say that not all drug policy reform had been halted during the decade following John Howard’s failed “Tough on Drugs” approach.

Starting with NSW in 1999 many states – including Victoria – had introduced the concept of Drug Courts to integrate intensive drug treatment into justice system responses to the most serious drug related crimes.

In 2012 – four years after I was appointed a magistrate – I was assigned to the drug court division of the Court where I remained for 11 years including serving as the Supervising Magistrate. It was a very refreshing break from the revolving door of the general criminal division of the magistrates’ court because the drug court actually works and that’s energising for the whole drug court team.  

In that role I learnt a lot about addiction.

We all do things in our lives that have the potential to become addictive behaviors. For example, we all eat, it’s necessary to support life. But for some amongst us, eating can become an addictive behaviour with the consequent obesity having all kinds of negative life consequences physically and mentally including serious and sometimes fatal disease. Exactly the same can be said for alcohol, in moderation it’s fine, for gambling, in moderation it’s fine, but if the consumption pattern escalates to a level of addiction, the outcome can also be ruinous and/or lethal.

Understanding that reality, I return to the subject of cannabis law reforms that many of my generation first hypothesised about in 1972, but, 50 years later, in 2025, still seem elusive.

Cannabis reform is fundamental to a harm minimisation approach to drug policy.

What distinguishes cannabis from legal recreational drugs like alcohol is the connection cannabis has with the illegal drug industry, not because of any innate property of cannabis, but because the laws which criminalise cannabis, compel cannabis consumers into a market where they are exposed to vastly riskier substances like opiates, synthetic opiates and amphetamines. 

Those riskier drugs distinguish themselves from cannabis because, unlike cannabis, the others are physically addictive and biologically destructive with the capacity to be lethal.  

On top of that, they are vastly more profitable to their vendors than marijuana. So, the vendors love cannabis prohibition! It guarantees them a captive market of cannabis consumers some of whom will be enticed across to the other vastly more profitable drugs, vastly more destructive drugs. Our current drug policies force cannabis consumers into a black market and our current cannabis laws only serve to preserve and protect that black market dynamic.  

That’s the harm that our current drug laws force on our community. And that is exactly why our laws need to be viewed through the lens of harm minimisation, to adjust policy to eradicate that harm.

So, Australia desperately needs another jolt of political leadership to advance the next wave of sensible drug policy reform. 

Nevertheless, over the past decade, we have seen governments around Australia once again take modest steps towards sensible cannabis reform.

• In the mid-2010s the Andrews and Turnbull Governments both worked to create a framework to make medicinal cannabis available via prescription, a wonderful national breakthrough.
• The ACT now permits possession of 50gms of dried cannabis or 150gms wet weight and also permits the non-hydroponic cultivation of 2 plants per adult person per household with a maximum of four plants per household.

The missing piece of the puzzle, of course, is the establishment of a regulated market rather that a criminal run black market,

• And, again in Victoria, we see a recent reform of our driving laws led by Rachel Payne MLC and David Ettershank MLC of the Legalise Cannabis Party. The reform gives the Magistrates’ Court a discretion not to cancel the drivers licence of medicinal cannabis patients who test positive to cannabis where there is no evidence of actual driving impairment. Previously, licence cancellation was mandatory. 

In the lead-up to that reform, at the government’s request, I had the honour of undertaking a wide consultation with police, courts, health and road safety peak bodies to test the stakeholder appetite for this change. It was strongly supported by most stakeholders and passed through this Parliament with bipartisan support.  

That reform, I might also add, is a first in Australia and is yet another example of the Victorian Parliament demonstrating its willingness to lead the rest of the nation in the development and implementation of sensible drug policy. 

While these are all important steps, they are small steps and fall well short of where our ambition should be. 

So, returning to where this oration started, right now, here in Victoria, to borrow the Whitlam campaign slogan, it’s time.

It’s time for an approach that will make our society safer and fairer. It’s time for a tightly regulated cannabis market – like the one envisaged by the Penington Institute in their recently released Penington Cannabis Control Plan.  

The Penington Plan is a comprehensive blueprint for how we can responsibly and effectively regulate cannabis.  

At its heart, the Plan is about taking control of an uncontrolled market currently run by criminals, and replacing it with a regulated system that prioritises health, safety and community wellbeing. 

Under the Penington Model, adults would be allowed to buy and consume cannabis, but only under strict conditions. 

The Plan contains more than 20 specific control measures and they include:

• Adult access only: Cannabis would only be available to people aged 18 and over.
• Plain packaging: No flashy branding or marketing—just clear, factual information. 
• Potency caps: Limits on THC levels to reduce the risk of harm. 
• No public consumption: Cannabis use would be restricted to private spaces. 
• Regulated points of sale: Cannabis could only be sold at licenced retail outlets in suitable locations. 
• Compulsory health education: Licenced retailers would be required to provide health information and harm reduction advice. 
• A complete ban on advertising: That’s right – no promotion, no sponsorship, no glamorisation. 

This is the sensible middle ground. It is a carefully considered reform, backed by evidence, and designed to reduce harm. 

I’ve reflected today on over half a century of drug policy advances, advances which are in the right direction but modest in scope and, my word, it’s been a tediously slow process. And, frankly, once we acknowledge that the current prohibition approach is ineffective and doing great damage, and that other approaches are available, inaction equates to the acceptance of avoidable and ongoing harm.  

And yet, that is where we find ourselves: waiting for one of our parliaments to step forward, show leadership and declare inaction is no longer an option. 

And let’s be clear; every day we wait is

…another day we needlessly stigmatise and criminalise users. 

…another day we waste money on failed law enforcement initiatives. 

…another day we allow the crime gangs to rake in the profits from cannabis sales. 

A tightly regulated cannabis market is a carefully considered reform, backed by evidence, and designed to reduce harm. 

It’s an approach that will make our society safer and fairer. 

What’s more; it’s popular.

Polls consistently show that most Victorians back the sensible legalisation and regulation of cannabis.

A recent YouGov poll, indicated there was more than 57% support for this reform. That included net-positive support in all age groups and voter cohorts. 

I ask rhetorically: How often does a social reform come along that meets the holy trinity of policy reform: it is “the right thing to do”, it is backed by evidence, and it enjoys broad community support? 

Victoria has the opportunity to lead. Indeed, it has a history of leading the nation on drug policy.

We can be the first state in Australia to embrace common-sense cannabis reform. 

We can take control of a broken system and replace it with one that works for everybody. 

In my view, cannabis reform isn’t just inevitable – it’s time! 

Thank you.