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Research Papers

Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Cannabis Water Pipes) Bill 2011

Introduction

The Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Cannabis Water Pipes) Bill 2011 (‘the Bill’) was introduced into the Legislative Assembly on 30 August 2011 by the Minister for Mental Health, the Hon. Mary Wooldridge.

The purpose of the Bill is to amend the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’) to provide for the prohibition of the display, sale and supply of cannabis water pipes and components and restriction of the display for sale of hookahs.

1. Second Reading Speech

The Minister for Mental Health delivered her second reading speech on 31 August 2011. Ms Wooldridge stated that the Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Cannabis Water Pipes) Bill delivers on the Coalition’s commitment before the election, to prohibit retailers from displaying and selling bongs, bong components and bong kits. She stated that, ‘It has long been a contradiction in policy that cannabis is an illicit substance in Victoria and yet one of the commonly used mechanisms for consuming cannabis has been widely available for purchase’.[footnote 1]

The Minister spoke about the health risks of cannabis use, and informed the House that cannabis was the most widely used illicit drug in Victoria and that its use was highest among young people aged 14-24 years as well as those aged 25-34 years. She also reported that cannabis related ambulance attendances in Melbourne increased by 9 per cent in 2010, with 887 attendances.

Ms Wooldridge spoke about research which indicated an association between cannabis use and an increased risk in the development of mental illness and that young people who took up cannabis use early in life and were high users, had a greater likelihood of developing depression, psychosis and anxiety.

The Minister stated that regular users aged 12-17 years, most commonly used a bong or cannabis water pipe and that ‘the bill will restrict access to this method by banning the sale of bongs through retail outlets’.[footnote 2]

The Bill bans the sale and display of bongs, bong components and bong kits from retail outlets (including markets). It also restricts the display for sale of more than three hookahs in a retail outlet.

Ms Wooldridge explained that water pipes such as hookahs and shishas are used for cultural purposes by Arabic and Middle Eastern communities and therefore would be exempt from the ban. It was agreed however, after consulting with representatives from these communities, that the visibility of hookahs would be restricted in number, with a view to reducing the uptake of tobacco smoking.

Victoria Police would be responsible for enforcement of the new provisions, as they currently enforce existing provisions under the Act in relation to other drug paraphernalia.

The Minister concluded her second reading speech by stating that a communication strategy had been developed to inform retailers, consumers and the general public of the new offences.

2. Background

On 14 April 2010, the Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Bongs) Bill 2010 was introduced into the Legislative Council as a Private Member’s Bill by former Democratic Labor Party MP, Mr Peter Kavanagh. [footnote 3] Unlike the current Bill, which proposes an outright ban on the sale of bongs in Victoria, the Private Member’s Bill was less prohibitive. It proposed that it be an offence to sell a bong if the person selling it knew or was reckless as to whether the bong was being sold for the purpose of administering a drug of dependence.[footnote 4]

During the second reading debate, then Opposition MP and Leader of the Nationals in the Legislative Council, Mr Peter Hall, said that the Coalition did not oppose the Bill. Further to this he stated that, ‘We would have taken [footnote the Bill] further and banned [footnote bongs] completely – and indeed will do so if elected to government’.[footnote 5]

Mr Kavanagh’s Private Member’s Bill was defeated in the Legislative Council on 26 May 2010 by the former Labor Government and the Greens. [footnote 6]

A special water pipe or bong is a method for the administration of the drug cannabis.[footnote 7] Cannabis, derived from the cannabis plant, contains the active component delta-9 tetrahydro-cannabinol, known as THC, which produces a ‘high’ (a feeling of mild euphoria and relaxation) when absorbed by the body.[footnote 8] The National Drug Strategy Household Survey Report states that cannabis was the most commonly used illicit drug in Australia in 2010.[footnote 9]

There are three main forms of cannabis: marijuana; hashish; and hash oil. Marijuana, which is usually smoked, is the least potent form of cannabis and is produced from the dried flowers and leaves of the cannabis plant. Hashish, which can be smoked or added to food, is produced from the resin of the cannabis plant which is dried and pressed into small blocks. Hash oil is the most potent form of cannabis and is a thick oil obtained from hashish. Hash oil is smoked.[footnote 10]

A water pipe or bong can be made from a range of materials including glass, plastic and aluminium. To use a bong, the cannabis is packed into a ‘cone’ and then burned, and water cools the smoke before it is inhaled.[footnote 11] Using water to cool the smoke allows for the maximum amount of THC to be inhaled. Compared to smoking a joint, using a bong also results in the inhalation of larger amounts of carbon monoxide and tar.[footnote 12] The National Cannabis Prevention and Information Centre states that using a bong is the most harmful way to smoke cannabis.[footnote 13]

When cannabis is smoked, THC is absorbed into the bloodstream through the lungs resulting in a fairly immediate ‘high’. The duration and intensity of a ‘high’ depends on factors such as the strength of the cannabis, the experience of the user and the method of use. [footnote 14] Other short-term effects of smoking cannabis may include: talkativeness; a feeling of well-being; drowsiness; loss of inhibitions; increased appetite; decreased nausea; bloodshot eyes; anxiety and paranoia; loss of coordination; and a dryness of the eyes, mouth and throat.[footnote 15]

A hookah is a type of water pipe and is a traditional method of smoking tobacco in regions such as the Middle East, North Africa and South Asia. [footnote 16] The most common type of tobacco used in hookahs is sweetened with molasses and flavoured, often with fruit essences. Hookah smoking is typically an intermittent social activity practiced by groups in the home or at places such as cafes and restaurants.[footnote 17] A 2008 telephone survey of 1,102 Arabic-speaking residents of south-west Sydney found that 11.4% of respondents were current hookah smokers with 1% being daily hookah smokers. [footnote 18] In 2010, Quit Victoria conducted a survey of hookah smoking amongst 119 members of Melbourne’s Arabic-speaking community and identified 16% of the sample as current hookah smokers (4% of respondents indicated that they smoked hookahs daily and 12% of respondents said that they smoked hookahs occasionally).[footnote 19]

A hookah typically consists of a head where the tobacco is placed, a body, waterbowl and a hose with a mouthpiece. Quit Victoria explains that the tobacco is not directly lit but is usually covered with perforated aluminium foil, with charcoal placed on the top to act as a burning agent:

When the charcoal is lit, it heats the tobacco producing smoke at a lower temperature than cigarette smoke. When the smoker inhales through the hose, the tobacco smoke is pulled down the waterpipe body and bubbles through the water in the bowl. The cooled smoke surfaces and is drawn through the hose and inhaled.[footnote 20]

Hookah smoking has become increasingly popular since the 1990s both in traditional hookah smoking countries and in other countries, including Australia.[footnote 21] Quit Victoria states that part of the reason for the spread and increase of hookah smoking is that it is popularly perceived as being less harmful than cigarette smoking because the smoke is filtered through water. [footnote 22] According to Quit Victoria, although current research on hookah smoking is limited, current evidence indicates that it is, in fact, both addictive and harmful.[footnote 23]

The World Health Organization’s Study Group on Tobacco Regulation states that the smoke that emerges from a hookah contains numerous toxicants known to cause cancer, heart disease and other diseases.[footnote 24] The WHO notes that a hookah smoking session may expose the smoker to more smoke over a longer period of time (typically 20-80 minutes) than occurs when smoking a cigarette (typically 5-7 minutes).[footnote 25] The WHO additionally notes that the sweetened and flavoured tobacco used in hookahs may make it appealing to people, especially young people, who would otherwise not use tobacco. [footnote 26]

The effects of regular cannabis use on physical and psychological wellbeing are not as comprehensively understood as those of tobacco and alcohol. [footnote 27] However, evidence is emerging that the drug can have adverse consequences for some users, particularly people who commence use in adolescence and use more than once per week for years during young adulthood. [footnote 28]

Adverse health effects of regular cannabis use may include: cannabis dependence; respiratory problems and cancers; and cardiovascular problems.[footnote 29] Regular cannabis smoking during pregnancy may also lead to reduced birth weight babies. [footnote 30] In addition, evidence suggests that cannabis use results in minor impairments in driving performance thus increasing the risk of being involved in, or responsible for, traffic accidents. This risk is increased when cannabis is combined with alcohol.[footnote 31]

Fried et al. found that regular heavy cannabis use was linked to residual deficits in cognitive functions (such as overall IQ, memory and processing speed). This Canadian study also showed that the deficits were no longer apparent three months after the cessation of regular cannabis use.[footnote 32] However, the authors did caution that the former users’ average length of time of regular use was slightly over 2.5 years. Thus, it is possible that had cannabis been used by the participants for a longer duration, the adverse cognitive effects may not have been reversed.[footnote 33]

Room et al. state that regular cannabis use in adolescence may have negative effects on educational outcomes. For example, the authors suggest that regular cannabis use may affect learning and subsequently, contribute to poorer school performance and earlier school leaving. [footnote 34] Longitudinal studies have typically found a link between cannabis use before the age of 15 years and early school leaving.[footnote 35]

Regarding the link between cannabis use and the use of other illicit drugs, Room et al. state that, ‘cannabis use is more strongly associated with other illicit drug use than alcohol or tobacco use, and the earliest and most frequent cannabis users are the most likely to use other illicit drugs’.[footnote 36] However, the mechanism of the association is unclear. For example, such an association could suggest that there are common characteristics of those who use cannabis and other drugs.[footnote 37]

The association between cannabis and an earlier age at onset of psychosis has been studied widely in the literature. [footnote 38] A recently published study by Large et al. aimed to establish the extent to which the use of cannabis, alcohol and other drugs affected the age at onset of psychosis.[footnote 39] The authors conducted further analyses of 83 previously published studies which compared the age at onset of psychosis in groups of substance-using participants, with age at onset of psychosis in groups of non-substance-using participants.[footnote 40]

The study demonstrated that the use of cannabis and other illicit drugs was associated with an earlier age at onset of psychosis. The age at onset of psychosis for cannabis users was 2.7 years younger than for non-substance users. The age at onset of psychosis for users of unspecified substances was two years younger than non-substance users.[footnote 41]

Large et al. argued that their results supported the hypothesis that cannabis is a causal factor in psychotic disorders. They concluded that the results of their study, ‘provide strong evidence that reducing cannabis use could delay or even prevent some cases of psychosis’. [footnote 42]

3. Statistics on Cannabis Use

As mentioned earlier, the 2010 National Drug Strategy Household Survey Report, released in July 2011, revealed that cannabis was the most commonly used illicit drug in Australia in 2010.[footnote 43]

The survey report found that Victoria had a higher percentage of people aged 12-17 who had recently used cannabis (9.3 per cent) compared to the national average (8.8 per cent). For all other age groups, the percentage of people who had recently used cannabis in Victoria was below the national average. In alignment with the national figures, recent use of cannabis was highest in Victorians aged 18-19 years (20.4 per cent) and 20-29 years (20.4 per cent). Overall, the percentage of Victorians aged 12 and over who had recently used cannabis (9.1 per cent) was below the national average (10.0 per cent).[footnote 44]

The survey report also presented trends in the percentage of people aged 14 and over who recently used cannabis by state/territory, for the period 1998 – 2010. Trends in Victoria are similar to those in other jurisdictions with a decrease in the percentage of recent users between 1998 and 2007. Victoria, like all other jurisdictions except Tasmania, experienced an increase in the percentage of recent users during 2007-2010. However, according to the National Survey Report, only the increases in New South Wales and Western Australia were statistically significant. [footnote 45] In 2010, Victoria ranked third lowest (at 9.4 per cent) in terms of the percentage of people aged 14 years and over who had recently used cannabis. The only states with lower percentages of recent cannabis use were New South Wales (9.3 per cent) and Tasmania (8.6 per cent). The Northern Territory (16.5 per cent) and Western Australia (13.4 per cent) recorded the highest percentages of recent cannabis users in 2010.[footnote 46]

According to Turning Point Alcohol and Drug Centre, there were 887 cannabis-related ambulance attendances in Melbourne in 2009/10. [footnote 47] This equates to a rate of 222 cannabis-related ambulance attendances per one million population. Alcohol was also involved in 61 per cent of these attendances. The mean age of patients attended was 29.41 years of age and 69 per cent of patients were male.[footnote 48]

The Turning Point Report also compared the cannabis-related ambulance attendances by Melbourne Metropolitan Local Government Area (LGA) between 2008/09 and 2009/10. The LGA of Melbourne had a slight reduction in cannabis-related ambulance attendances in 2009/10 compared to 2008/9 (66 to 62). However, despite the decrease, the LGA of Melbourne remained the highest ranked LGA in terms of cannabis-related ambulance attendances. Other LGAs which experienced a fall in attendances were Casey (40 to 31), Yarra (34 to 31), Brimbank (34 to 30), Hobsons Bay (25 to 15), Maroondah (25 to 20), Melton (19 to13), Whittlesea (29 to 23) and Cardinia (17 to 12). LGAs which experienced an increase in attendances were Port Phillip (38 to 53), Greater Dandenong (36 to 51), Moreland (34 to 45), Hume (29 to 44), Maribyrnong (25 to 34) Whitehorse (16 to 25), Banyule (15 to 24) and Glen Eira (11 to 22).[footnote 49]

Victorian Secondary School Students’ Use of Licit and Illicit Substances in 2008

The results from the 2008 Australian Secondary Students’ Alcohol and Drug Survey demonstrated that 11 per cent of all 12-17 year old Victorian secondary school students had used cannabis in the past year.[footnote 50] The percentage of all 12-17 year old Victorian secondary school students who were regular cannabis users (i.e. had used cannabis 10 or more times) in the past year was lower at 3 per cent.[footnote 51]

The survey also reported trends in the percentage of 12-15 year old and 16-17 year old Victorian students who were regular cannabis users between 1996 and 2008. The results showed that across both age groups and across the time period, a larger percentage of males were regular cannabis users than females. In addition, across the time period, there were a greater percentage of both males and females who were regular cannabis users in the 16-17 year age group compared to the 12-15 year age group.[footnote 52]

In addition, the survey found that within the 12–15 year age group, the percentage of regular cannabis users consistently decreased between 1996 and 2008. In the 16-17 year age group, the percentage of males who were regular cannabis users also consistently decreased across the time period. For females in the 16-17 year age group, there was a decline in the percentage of regular users between 1996 and 2005. Between 2005 and 2008, the percentage of females who were regular cannabis users in the 16-17 year age group remained steady. [footnote 53]

The survey also demonstrated that among both age groups (12-15 years, 16-17 years), bongs/pipes were the most popular method for cannabis use among regular cannabis users. Whereas, for irregular cannabis users (i.e. used cannabis between one and nine times in the past year), joints were the preferred method in both age groups.[footnote 54]

The survey also found that regular cannabis users reported feeling less involved with school, reported very low levels of social support when compared with students who had never used cannabis and were less likely to think they would finish Year 12. [footnote 55]

The survey report consequently identified factors ‘that were all at least partially related to patterns of cannabis use’. [footnote 56] These were: parental support, school involvement, intention to complete Year 12 and the number of nights out without adult supervision.[footnote 57]

It concluded, ‘that prevention of cannabis use strategies needed to broaden their targets to include parents and schools, both to increase the levels of support students feel from these sources and also to encourage students to stay engaged with school to ensure they finish Year 12’. [footnote 58]

4. Main Provisions of the Bill

This section of the Research Brief provides an overview of the main provisions of the Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Cannabis Water Pipes) Bill 2011.

Clause 1 of the Bill states that the purpose of the Bill is to amend the Drugs, Poisons and Controlled Substances Act 1981 to provide for—

(a) the prohibition of display, sale and supply of cannabis water pipes and components; and

(b) the restriction of display for sale of hookahs.

Commencement

Clause 2 of the Bill provides that the provisions will come into operation on 1 January 2012. The Explanatory Memorandum states that the delayed commencement date will allow retailers time to prepare for it.[footnote 59]

New Part VC Inserted

Clause 4 is the key clause of the Bill. It inserts new ‘Part VC—Cannabis Water Pipes and Hookahs’ into the Drugs, Poisons and Controlled Substances Act. Part V of the Act deals with drugs of dependence and related matters, including cocaine kits (Part VA) and ice pipes (Part VAB). The new Part VC consists of new sections 80T – 80ZE.

Division 1 – Display, Sale and Supply

Definitions

New section 80T sets out the definitions of the key terms used in the new Part VC:

Bong component means an item for use or that is intended for use as part of a cannabis water pipe;

Bong kit means a kit containing more than one item, one or more of which is a bong component, from which a cannabis water pipe may be constructed;

Cannabis water pipe means a device—

(a) capable of being used or intended to be used for the purposes of introducing into the body of a person cannabis or other drugs of dependence by the drawing of smoke or fumes resulting from heating or burning the cannabis or other drug through water or another liquid in the device, commonly known as a “bong”; or

(b) that is intended to be used as a device referred to in paragraph (a) but is not capable of being so used because it needs adjustment, modification or addition—

but does not include a hookah;

Hookah means a fully assembled device—

(a) used for smoking a substance consisting of tobacco, molasses, fruit, herbs or flavouring, whether the substance contains all or any combination of them, by the drawing of smoke or fumes resulting from heating or burning the substance in the device through water or another liquid in the device; and

(b) that has one or more openings and one or more flexible hoses, each with a mouthpiece through which the smoke or fumes are drawn;

Retail outlet includes—

Offence to Display Cannabis Water Pipe, Bong Component or Bong Kit in Retail Outlet

New section 80U provides that it is an offence for a person to display a cannabis water pipe, bong component or bong kit in a retail outlet. The penalty for doing so is 60 penalty units in the case of a natural person and 300 penalty units in the case of a body corporate. [footnote 60]

Offence to Sell Cannabis Water Pipe, Bong Component or Bong Kit

New section 80V provides that it is an offence for a person to sell a cannabis water pipe, bong component or bong kit. The penalty for doing so is 60 penalty units in the case of a natural person and 300 penalty units in the case of a body corporate.

Offence to Supply Cannabis Water Pipe, Bong Component or Bong Kit in Course of Carrying out Commercial Activity

New section 80W provides that it is an offence for a person to supply a cannabis water pipe, bong component or bong kit in the course of carrying out a commercial activity. The Explanatory Memorandum provides an example of this as ‘giving a free bong to a person who purchases another item’. [footnote 61] The penalty for doing so is 60 penalty units in the case of a natural person and 300 penalty units in the case of a body corporate.

Display for Sale of Hookahs in Retail Outlet

New section 80X provides that it is an offence to display more than three hookahs, or more than the prescribed number of hookahs, for sale in a retail outlet. The penalty for doing so is 10 penalty units in the case of a natural person and 50 penalty units in the case of a body corporate. In the Statement of Compatibility for the Bill, Ms Wooldridge explained that section 80X ‘intends to provide scope for cultural activity within reasonable bounds, by allowing Middle Eastern and Arabic retailers to continue to sell hookahs so they may continue their cultural practices of using hookahs’.[footnote 62]

Division 2—Enforcement

Power to Issue Infringement Notices

New section 80Y provides that a member of the police force may serve an infringement notice on a person that the police member reasonably believes has committed an offence against sections 80U, 80V, 80W or 80X (as per an infringement offence within the meaning of the Infringements Act 2006).

Infringement Penalty

New section 80Z provides that the infringement penalty for an offence against sections 80U, 80V or 80W is 12 penalty units in the case of a natural person and 60 penalty units in the case of a body corporate. The infringement penalty for an offence against section 80X is 2 penalty units in the case of a natural person and 10 penalty units in the case of a body corporate.

Seizure of Cannabis Water Pipes, Bong Components or Bong Kits

New Section 80ZA provides that a member of the police force may seize a cannabis water pipe, bong component or bong kit if he or she has reasonable grounds for suspecting that the item is displayed, for sale, or supplied in contravention of the new Part VC.

Retention and Return of Seized Items

New section 80ZB(1) provides that if a police force member seizes a cannabis water pipe, bong component or bong kit under Part VC, the police member must take reasonable steps to return the seized item if the reason for its seizure no longer exists. New section 80ZB(2) then provides that if the seized item has not been returned within three months, a police member must take reasonable steps to return it unless the proceedings for the purpose for which the item was retained have commenced within that three month period and are not completed, or the Magistrates’ court makes an order under section 80ZC extending the period during which the item may be retained.

Magistrates’ Court May Extend 3 Month Period

New section 80ZC provides that a police force member may apply to the Magistrates’ Court for an extension of the period during which the item seized under Part VC may be retained.

Forfeiture and Destruction of Seized Items

New section 80ZD(1) provides that, subject to section 80ZB, any item that a police force member has seized and retained under Part VC is forfeited to the Crown if the police member cannot find the person from whom the item was seized or its lawful owner despite making reasonable enquiries, or cannot return it to the person from whom it was seized or its lawful owner despite making reasonable efforts. New section 80ZD(2) then states that any item forfeited to the Crown under subsection (1) may be destroyed in any manner the Minister thinks fit.

Court may Order Forfeiture to the Crown

New section 80ZE provides that a court which finds a person guilty of an offence under section 80U, 80V or 80W may order that the cannabis water pipe, bong component or bong kit to which the offence relates be forfeited to the Crown and destroyed in accordance with the order.

General Regulations

Clause 5 of the Bill inserts new subsection 132(zcd) into the Act. Section 132 of the Act provides for the making of regulations under the Act. New subsection 132(zcd) provides for the making of regulations prescribing the number of hookahs that may be displayed.

5. Stakeholder Views

This section of the Research Brief provides an overview of published stakeholder views on the Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Cannabis Water Pipes) Bill 2011.

Australian Medical Association Victoria President, Dr Harry Hemley, has stated that AMA Victoria supports the Bill. Dr Hemley said that ‘The sole purpose of bongs is to smoke cannabis – a substance that is illegal and can cause serious mental and physical illness’, and that banning the sale of bongs ‘will help to reduce rates of cannabis use in Victoria’. Dr Hemley further said that:

This ban will prevent children and adolescents from obtaining bongs. It also ensures that educational campaigns about the dangers of cannabis use aren’t contradicted by the ready availability of bongs. The presence of bongs in shop windows along many of Melbourne’s busiest streets sends the wrong message to Victorians about the acceptability of smoking cannabis.[footnote 63]

Drug and Alcohol Research and Training Australia director, Paul Dillon, has been reported in the Herald Sun as stating that while banning the sale of bongs will remove confusion about the illegality of cannabis, it will not significantly reduce the use of the drug. Mr Dillon said that:

People don’t stop using the drug, they just use it in a more dangerous, different way and certainly home-made bongs are far more dangerous than implements you buy in a store. Smoking through a plastic container and silver foil means you also inhale toxic fumes. [footnote 64]

Retailers of bongs, such as Off Ya Tree, similarly state that banning the sale of bongs will result in people using home-made bongs. Off Ya Tree operates 18 retail outlets throughout Australia. Its seven Victorian stores sell ‘smoking paraphernalia’ such as bongs and pipes, as well as various other product lines and body piercing. The Off Ya Tree website says that Off Ya Tree does not support banning the sale of bongs. It says that bongs are not used exclusively for smoking marijuana but can be used to smoke tobacco and legal herbs. Off Ya Tree further says that bongs for sale in shops (made out of materials such as glass and ceramics) provide a safer means of smoking than do home-made bongs made out of melted plastics that can create toxic vapour.[footnote 65]

The Drug Advisory Council of Australia (DACA) stated in the context of the defeat of the Private Member’s Bill to ban the display and sale of bongs in 2010, that Victorians should be ‘protected by laws that outlaw implements to encourage smoking and particularly smoking cannabis’. [footnote 66] DACA emphasised the harmful effects of cannabis smoking and said that ‘Removing from display and sale smoking implements like bongs should be part of sound anti drug policy that discourages smoking’. [footnote 67]

6. Other Jurisdictions

All of the states in Australia prohibit, in various ways, water pipes and ice pipes used for the consumption of prohibited drugs: with the exception of Victoria which currently only prohibits ice pipes. Some restrictions are imposed on the sale and display of hookahs and similar devices, but the majority of states make a distinction between these devices and bongs. South Australia is the only Australian jurisdiction to prohibit the sale or supply of hookahs, while New Zealand prohibits the sale, supply, and importation of hookahs.

There are no provisions in ACT legislation prohibiting bongs and other drug paraphernalia. In the Northern Territory, the Misuse of Drugs Act 1981 simply prohibits the unlawful possession of ‘a thing (other than a hypodermic syringe or needle) for use in the administration of a dangerous drug’ (s 12).

This section of the Research Brief begins with the Commonwealth and provides the current guidelines from Australian Customs regarding importing drug paraphernalia into Australia from overseas jurisdictions. It then reviews each state and New Zealand.

Commonwealth

According to the Australian Customs and Border Protection Service, there are no restrictions on importing drug paraphernalia designed for use with prohibited substances such as ice pipes, bongs or components of bongs. Similarly, there are no restrictions on the importation of tobacco smoking items such as hookahs.[footnote 68]

New South Wales

Section 11A of the Drug Misuse and Trafficking Act 1985 prohibits the ‘sale, supply and display of water pipes and ice pipes’. In 1987 the NSW legislature passed the Drug Misuse and Trafficking (Further Amendment) Bill, which inserted section 11A into the principal Act prohibiting the sale of ‘water pipes’. A subsequent amendment in 2006 included ice pipes in the section.

Under the Act, a ‘water pipe’ includes a device known as a bong, and is defined as:

§ a device capable of being used for the administration of a prohibited drug, by means of the drawing of smoke or fumes (resulting from the heating or burning of the drug) through water or another liquid; or

§ a device that is apparently intended to be such a device but that is not capable of being so used because it needs an adjustment, modification or addition.

The penalty for selling or displaying a water pipe as defined in the legislation is a fine of 20 penalty units ($2,200) or imprisonment for a term of two years, or both (s 21). It is immaterial whether or not the water pipe or ice pipe was intended to be used for administering drugs.

Restrictions on tobacco smoking paraphernalia, such as hookahs, are contained in the Public Health (Tobacco) Act 2008. In the definitions section of that Act, a ‘smoking accessory’ includes ‘cigarette papers, pipes, cigarette holders, hookahs, water pipes or any other smoking implement’. According to section 9 of the Act, smoking accessories must not be visible from the inside or outside of a business premises, unless the customer has requested to see the smoking accessory. The penalty for a breach of this section is 100 penalty units ($11,000) for an individual and 500 penalty units ($55,000) for a corporation.

In Queensland the Tobacco and Other Smoking Products Act 1998 prohibits the sale, supply or display of ice pipes and bongs (s 26ZPF and s 26ZQ). The sale or display of bongs was initially prohibited in 2004. However, in 2007 legislation was passed that: expanded on the definition of bongs, prohibited the sale of ice pipes, and restricted the display of hookahs.

In the current Act, section 26ZQ specifies that a person must not sell or supply a bong or a component of a bong as part of a business activity or display a bong or component in connection with a shop.

A defence is available in section 26ZQ(2) if the person can prove that the device or component is ‘designed primarily to be used for a purpose other than administering a dangerous drug’. The examples given in the legislation pertaining to this defence are buckets, garden hoses, and water bottles. However, a disclaimer on the product does not of itself prove that the device or component is not designed primarily for a purpose other than administering a dangerous drug (s 26ZQ(3)).

The legislation defines a bong as meaning:

§ a device capable of being used for administering a dangerous drug by the drawing of smoke or fumes, resulting from heating or burning the drug in or on the device, through water or another liquid in the device; but

§ does not include a hookah.

The legislation defines a component of a bong as a device that:

§ is apparently intended to be part of a bong; and

§ is not capable of being used for administering a dangerous drug in the way described in the definition of a bong without an adjustment, modification or addition.

Although selling hookahs is not prohibited, the display of these devices is limited to three per shop pursuant to section 26ZQA of the Act and section 16 of the Regulations. The penalty for a breach of the legislation pertaining to the sale, supply or display of bongs, ice pipes and hookahs is 140 penalty units ($14,000).

In 2008 Queensland environment and health officers raided an Off Ya Tree store and confiscated a number of items described as drug paraphernalia. According to the Courier Mail the items seized included: 295 bong chambers, 98 bong stems, and 179 bong cones. It was reported that the staff described the items as ‘cream pourers’ and ‘decanters’, a move which the Magistrate described as ‘optimistic’. The directors of Off Ya Tree pleaded guilty to the charges. Despite it being reported that 80 per cent of the seized items were later returned as non-offending items, the company was fined $750 and the directors were placed on 12 month good behaviour bonds without conviction. [footnote 69]

South Australia

In South Australia the sale of drug paraphernalia is prohibited under the Summary Offences Act 1953. Section 9B was inserted by the Summary Offences (Drug Paraphernalia) Amendment Act 2008, and makes it an offence to sell a prohibited item or supply a prohibited item in connection with the sale of other goods. Unlike New South Wales and Queensland, the display of such items does not appear to be specifically prohibited.

The legislation provides definitions for various prohibited items, including cocaine kits[footnote 70], prohibited pipes, and water pipes. Under the Act a ‘prohibited pipe’ includes hash pipes and ice pipes, and is defined as follows:

§ a device (other than a water pipe) that is apparently intended for use or designed for use in smoking cannabis, cannabis resin or methamphetamine crystals; or

§ components that, when assembled together, form such a device.

A ‘water pipe’, which includes bongs and hookahs, means the following:

§ a device capable of being used for smoking by means of the drawing of smoke fumes through water or another liquid; or

§ components that, when assembled together, form such a device; or

§ a device that is apparently intended to be such a device but that is not capable of being so used because it needs an adjustment, modification or addition.

The penalty for an offence under this section of the Act pertaining to prohibited items varies depending on whether the item was sold to a minor (s 9B). For individuals that sell a prohibited item to an adult the penalty is $10,000 or imprisonment for two years, and for a body corporate the penalty is $50,000. However, if the item is sold to a minor, the penalty is $20,000 or two years imprisonment for an individual, and $100,000 for a body corporate.

Western Australia

In Western Australia the sale of cannabis smoking paraphernalia is prohibited under section 19A of the Misuse of Drugs Act 1981, which was inserted by section 7 of the Cannabis Law Reform Act 2010. The sale of ice pipes was prohibited with the passage of the Misuse of Drugs Amendment Act (No. 2) 2010.

The Misuse of Drugs Act 1981, the principal Act, defines ‘cannabis smoking paraphernalia’ as:

§ anything made or modified to be used in smoking cannabis; or

§ any other thing that is prescribed to be cannabis smoking paraphernalia.

The penalty for selling cannabis smoking paraphernalia to a child is a $24,000 fine or imprisonment for two years. For selling cannabis smoking paraphernalia to an adult or for allowing it to be displayed in a shop or retail outlet the fine is $10,000.

Pursuant to section 6A of the Regulations, for the purposes of section 19A of the Act prohibiting the sale of cannabis paraphernalia, the sale of shisha and hookahs is excluded. This exclusion was inserted in July 2011. However, there are restrictions on the display and sale of ‘smoking implements’ on retail premises contained in the Tobacco Products Control Act 2006. A ‘smoking implement’ is defined in the glossary of that Act as meaning:

§ cigarette papers, a cigarette rolling machine, pipe, or other thing designed to be used in the process of smoking a tobacco product or preparing a tobacco product for smoking, but does not include matches or a cigarette lighter.

In addition to the general restrictions contained in the Tobacco Products Control Act 2006, section 34(5) requires smoking implements to be located at least one metre away from confectionary or products marketed to children. If it is not practically possible to comply with this provision, the smoking implement must be located the greatest distance possible away from such products. [footnote 71] The penalty for a breach of this section is a fine of $2,000. Unlike other jurisdictions there does not appear to be a restriction on the number of smoking implements that may be displayed.

Tasmania has adopted a different approach compared to other jurisdictions. Rather than prohibiting the sale, supply or display of drug paraphernalia, the Misuse of Drugs Act 2001 simply prohibits ‘possession’. Section 23 of the Act states that a person must not possess a utensil, appliance or other thing that is:

§ used or designed to be used in connection with the preparation, smoking, inhalation, administration or taking of a controlled drug or controlled plant; or

§ apparently intended, after some adjustment, addition or other modification, to be used in connection with the preparation, smoking, inhalation or taking of a controlled drug or controlled plant.

The penalty for a breach of this section is a fine not exceeding 50 penalty units ($6,500).

Further restrictions are contained in the Poisons Act 1971. Section 83A effectively imposes the same prohibitions as listed above for section 23 of the Misuse of Drugs Act 2001, however, the penalty for a breach under this section is a fine not exceeding 20 penalty units. [footnote 72]

New Zealand

Under section 22(1A) of the Misuse of Drugs Act 1975, the Minister is authorised to:

prohibit the importation, supply, possession for the purpose of sale or supply, or offering for sale of any class of pipe, other utensil, or identifiable component of a pipe or other utensil, not being a needle or syringe, that may be used for administering any controlled drug or in the preparation of any controlled drug to be administered, either absolutely or subject to such conditions as the Minister thinks fit.

Section 22(3) makes it an offence to import, supply, possess or offer for sale an item, or component of an item, prohibited under such an order.

Pursuant to sections 4 and 5 of the Misuse of Drugs (Prohibition of Cannabis Utensils and Methamphetamine Utensils) Notice 2003, authorised by the Minister under section 22(1A) of the Misuse of Drugs Act 1975, the importation or supply of cannabis and methamphetamine utensils is prohibited.

A cannabis utensil means any of the following items: bong, hash pipe, head pipe, hubble-bubble, hookah, roach clip with a pincer or tweezer action, and a water pipe. In order to be a cannabis utensil, the item (other than a roach clip) must have one or more of the following prohibited features:

§ more than two holes;

§ more than one inhalation hose (breathing port);

§ provision for cooling smoke by drawing the smoke through water;

§ a metal or ceramic bowl;

§ an insertion placed in a bowl, which is an insertion that is a gauze, a wire mesh screen, or an insertion made of material that is not designed or intended to be burnt or dissolved in the bowl.

The penalties for a breach by an individual of an order made under section 22(1A) of the Act is a term of imprisonment not exceeding three months or a fine not exceeding $1,000, or both. In the case of a breach by a body corporate the penalty is a fine not exceeding $5,000.

Relevant Legislation

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

Misuse of Drugs Act 1981 (NT)

Drug Misuse and Trafficking Act 1985 (NSW)

Public Health Tobacco Act 2008 (NSW)

Tobacco and Other Smoking Products Act 1998 (Qld)

Summary Offences Act 1953 (SA)

Misuse of Drugs Act 1981 (WA)

Cannabis Law Reform Act 2010 (WA)

Tobacco Products Control Act 2006 (WA)

Misuse of Drugs Act 2001 (Tas)

Poisons Act 1971 (Tas)

Misuse of Drugs Act 1975 (NZ)

Bibliography

Australian Customs and Border Protections Service (2011) ‘Prohibited and restricted imports’, Australian Customs and Border Protections Service website, viewed 8 September 2011, .

Australian Medical Association Victoria (2011) AMA Victoria Welcomes Bong Ban, Media Release, 2 September, viewed 5 September 2011,

Australian Institute of Health and Welfare (2011) 2010 National Drug Strategy Household Survey Report, Canberra, AIHW, viewed 6 September 2011, .

Carroll, T., N. Poder & A. Perusco (2008) ‘Is Concern About Waterpipe Tobacco Smoking Warranted?’, Australian and New Zealand Journal of Public Health, vol. 32, no. 2, p. 181.

Copeland, J. (2007) ‘Chapter 4: Cannabis’ in J. Ross (ed.) Illicit Drug Use in Australia: Epidemiology, Use Patterns and Associated Harm, 2 nd edition, Canberra, National Drug and Alcohol Research Centre, viewed 7 September 2011, .

Drug Advisory Council of Australia (2010) ‘Cannabis Cancer Not Considered’, DACA website, viewed 7 September 2011, .

Fried, P., B. Watkinson & R. Gray (2005) ‘Neurocognitive Consequences of Marihuana – A Comparison with Pre-Drug Performance’, Neurotoxicology and Teratology, vol. 27, pp. 231-239.

Gregov, M., J. Baker & L. Hayes (2011) Waterpipe Smoking: Behaviour, Knowledge and Attitudes Among the Arabic Speaking Community in Victoria, Australia, Melbourne, Quit Victoria.

Large, M., S. Sharma, M. Compton, T. Slade & O. Nielssen (2011) ‘Cannabis Use and Earlier Onset of Psychosis: A Systematic Meta-Analysis’, Archives of General Psychiatry, vol. 68, no. 6, pp. 555-561.

Lill, J. (2008) ‘Off Ya Tree Staff Said Bongs Were Cream Dispensers: Court’, couriermail.com.au, 25 June 2008, viewed 9 September 2011, .

Maziak, W., T. Eissenberg, & K.D. Ward (2005) ‘Patterns of Waterpipe Use and Dependence: Implications for Intervention Development’, Pharmacology, Biochemistry and Behavior, no. 80, pp. 174-179.

Maziak, W. (2011) ‘The Global Epidemic of Waterpipe Smoking’, Addictive Behaviours, no. 36, pp. 1-5.

McArthur, G. (2011) ‘Loophole Closed for Marijuana Smoking Devices’, heraldsun.com.au, 29 August, viewed 5 September 2011, .

McLaren, J. & R. Mattick (c.2007) Cannabis in Australia: Use, Supply, Harms, and Responses, Sydney, National Drug and Alcohol Research Centre, viewed 7 September 2011, .

National Cannabis Prevention and Information Centre (2008) Cannabis and Mental Health, Fact Sheet 3, viewed 7 September 2011, .

National Cannabis Prevention and Information Centre (2008) Cannabis and Tobacco Use, Fact Sheet 10, viewed 7 September 2011, .

National Cannabis Prevention and Information Centre (2009) Cannabis and the Law, Fact Sheet 2, viewed 7 September 2011, .

National Cannabis Prevention and Information Centre (2009) What is Cannabis? Fact Sheet 1, viewed 7 September 2011, .

National Cannabis Prevention and Information Centre (2011) ‘Bong’, Cannabisaurus website, viewed 9 September 2011, .

Off Ya Tree (2011) ‘To Bong or Not to Bong?’, Off Ya Tree website, viewed 5 September 2011, .

Office of the Chief Parliamentary Counsel (2011) ‘Penalty and Fee Units’, OCPC website, State Government Victoria, viewed 6 September 2011, .

Quit Victoria (2008) ‘Waterpipe Tobacco Smoking’, Background Brief, VicHealth, viewed 7 September 2011, .

Rankine, L. & C. Houston (2011) ‘Hookah Pipes Escape Bong Ban’, 11 September, theage.com.au, viewed 12 September 2011, .

Room, R., B. Fischer, W. Hall, S. Lenton & P. Reuter (2010) Cannabis Policy: Moving Beyond Stalemate, Oxford, Oxford University Press.

World Health Organization (2005) ‘Waterpipe Tobacco Smoking: Health Effects, Research Needs and Recommended Actions by Regulators’, WHO Study Group on Tobacco Product Regulation Advisory Note, Geneva, WHO, viewed 7 September 2011,

© 2011 Library, Department of Parliamentary Services, Parliament of Victoria

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent of the Department of Parliamentary Services, other than by Members of the Victorian Parliament in the course of their official duties.

Research Service

This paper has been prepared by the Research Service for use by Members of the Victorian Parliament. The Service prepares briefings and publications for Parliament in response to Members, and in anticipation of their requirements, undertaking research in areas of contemporary concern to the Victorian legislature. While it is intended that all information provided is accurate, it does not represent professional legal opinion.

Research publications present current information as at the time of printing. They should not be considered as complete guides to the particular subject or legislation covered. The views expressed are those of the author(s).

Bronwen Merner, Dr Catriona Ross, Adam Delacorn and Bella Lesman

Victorian Parliamentary Library

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[footnote 1] Victoria, Legislative Assembly (2011) Debates, 31 August, Book 12, p. 2974.

[footnote 2] ibid., p. 2975.

[footnote 3] Victoria, Legislative Council (2010) Debates, 14 April, Book 5, p. 1270.

[footnote 4] Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Bongs) Bill 2010, cl 3.

[footnote 5] Victoria, Legislative Council (2010) Debates, 26 May, Book 7, p. 1997.

[footnote 6] ibid., p. 2007.

[footnote 7] Other main methods of using cannabis are smoking it in a ‘joint’ (a hand rolled cigarette) or consuming it in food.

[footnote 8] National Cannabis Prevention and Information Centre (NCPIC) (2009) What is Cannabis? Fact Sheet 1, viewed 7 September 2011, .

[footnote 9] Australian Institute of Health and Welfare (2011) 2010 National Drug Strategy Household Survey Report, Canberra, AIHW, p. 102, viewed 6 September 2011, .

[footnote 10] NCPIC (2009) What is Cannabis? op. cit.

[footnote 11] NCPIC (2011) ‘Bong’, Cannabisaurus website, viewed 9 September 2011, .

[footnote 12] J. Copeland (2007) ‘Chapter 4: Cannabis’ in J. Ross (ed.) Illicit Drug Use in Australia : Epidemiology, Use Patterns and Associated Harm, 2 nd edition, Canberra, National Drug and Alcohol Research Centre, p. 9, viewed 7 September 2011, .

[footnote 13] NCPIC (2008) Cannabis and Tobacco Use, Fact Sheet 10, viewed 7 September 2011, .

[footnote 14] Copeland (2007) op. cit., p. 9.

[footnote 15] NCPIC (2009) What is Cannabis? op. cit.

[footnote 16] Other names for hookah pipes are ‘narghile’, ‘shisha’, ‘goza’, and ‘hubble bubble’. Medical literature refers to hookahs as ‘waterpipes’.

[footnote 17] Quit Victoria (2008) ‘Waterpipe Tobacco Smoking’, Background Brief, Melbourne, VicHealth, p. 1, viewed 7 September 2011, ; W. Maziak et al. (2005) ‘Patterns of Waterpipe Use and Dependence: Implications for Intervention Development’, Pharmacology, Biochemistry and Behavior, no. 80, pp. 173, 175.

[footnote 18] T. Carroll et al. (2008) ‘Is Concern About Waterpipe Tobacco Smoking Warranted?’, Australian and New Zealand Journal of Public Health, vol. 32, no. 2, p. 181.

[footnote 19] M. Gregov et al. (2011) Waterpipe Smoking: Behaviour, Knowledge and Attitudes Among the Arabic Speaking Community in Victoria, Australia , Melbourne, Quit Victoria, pp. 6-7, 13. Please note that the Quit Victoria study used a convenience sample and may not be representative of the overall Arabic-speaking community in Melbourne.

[footnote 20] Quit Victoria (2008) op. cit., p. 2.

[footnote 21] ibid., p. 1; Maziak et al. (2005) op. cit.; World Health Organization (2005) ‘Waterpipe Tobacco Smoking: Health Effects, Research Needs and Recommended Actions by Regulators’, WHO Study Group on Tobacco Product Regulation Advisory Note, Geneva, WHO, p. 1, viewed 7 September 2011, ; W. Maziak (2011) ‘The Global Epidemic of Waterpipe Smoking’, Addictive Behaviours, no. 36, p. 2.

[footnote 22] Quit Victoria (2008) op. cit.

[footnote 23] ibid. Quit Victoria’s executive director, Ms Fiona Sharkie, has indicated that Victoria is the only Australian state to allow the use of hookahs inside cafes and bars. She stated, ‘All patrons and hospitality workers, regardless of their cultural background, should be entitled to a healthy, smoke-free environment’. Ms Sharkie has called for a ban on tobacco waterpipe smoking inside venues. L. Rankine & C. Houston (2011) ‘Hookah Pipes Escape Bong Ban’, 11 September, theage.com.au, viewed 12 September 2011, .

[footnote 24] WHO (2005) op. cit., p. 3.

[footnote 25] ibid.

[footnote 26] ibid., p. 5.

[footnote 27] R. Room et al. (2010) Cannabis Policy: Moving Beyond Stalemate, Oxford, Oxford University Press, p. 15.

[footnote 28] ibid.

[footnote 29] ibid., pp. 24-29.

[footnote 30] ibid., p. 22.

[footnote 31] Copeland (2007) op. cit., p. 14.

[footnote 32] P. Fried et al. (2005) ‘Neurocognitive Consequences of Marihuana – A Comparison with Pre-Drug Performance’, Neurotoxicology and Teratology, vol. 27, p. 231.

[footnote 33] ibid., p. 237.

[footnote 34] Room et al. (2010) op. cit., p. 32.

[footnote 35] ibid.

[footnote 36] ibid., p. 35.

[footnote 37] ibid.

[footnote 38] J. McLaren & R. Mattick (c.2007) Cannabis in Australia: Use, Supply, Harms, and Responses, Sydney, National Drug and Alcohol Research Centre, p. 34, viewed 7 September 2011, .

[footnote 39] M. Large et al. (2011) ‘Cannabis Use and Earlier Onset of Psychosis: A Systematic Meta-Analysis’, Archives of General Psychiatry, vol. 68, no. 6, pp. 555-561. Psychosis is a condition where a person loses contact with reality and may experience symptoms such as confused thinking, delusions and hallucinations.

[footnote 40] ibid., p. 558.

[footnote 41] ibid.

[footnote 42] ibid., p. 560.

[footnote 43] Australian Institute of Health and Welfare (2011) op. cit., p. 102.

[footnote 44] ibid., p. 108.

[footnote 45] ibid.

[footnote 46] ibid., p. 109.

[footnote 47] B. Lloyd (2010) Ambo Project: Alcohol and Drug Related Ambulance Attendances – Trends in Alcohol and Drug Related Ambulances Attendances in Melbourne 2009/10 , Fitzroy, Turning Point Alcohol and Drug Centre, p. 21, viewed 5 September 2011,

[footnote 48] ibid.

[footnote 49] ibid., p. 23.

[footnote 50] Victorian Department of Health (2009) Victorian Secondary School Students’ Use of Licit and Illicit Substances in 2008: Results from the 2008 Australian Secondary Students’ Alcohol and Drug Survey , report prepared by V. White & G. Smith, Cancer Council Victoria, p. 157, viewed 6 September 2011, .

[footnote 51] ibid., p. 158.

[footnote 52] ibid,. p. 167.

[footnote 53] ibid.

[footnote 54] ibid., p. 161.

[footnote 55] ibid., p. 175.

[footnote 56] ibid.

[footnote 57] ibid.

[footnote 58] ibid.

[footnote 59] Explanatory Memorandum, p. 1.

[footnote 60] From 1 July 2011 to 30 June 2012, the value of one penalty unit is $122.14. Office of the Chief Parliamentary Counsel (2011) ‘Penalty and Fee Units’, OCPC website, State Government Victoria, viewed 6 September 2011, .

[footnote 61] ibid. p. 2.

[footnote 62] Victoria, Legislative Assembly (2011) op. cit., p. 2974.

[footnote 63] Australian Medical Association Victoria (2011) ‘AMA Victoria Welcomes Bong Ban’, Media Release, 2 September, viewed 5 September 2011, .

[footnote 64] G. McArthur (2011) ‘Loophole Closed for Marijuana Smoking Devices’, heraldsun.com.au, 29 August, viewed 5 September 2011, .

[footnote 65] Off Ya Tree (2011) ‘To Bong or not to Bong?’, Off Ya Tree website, viewed 5 September 2011, .

[footnote 66] Drug Advisory Council of Australia (2010) ‘Cannabis Cancer Not Considered’, DACA website, viewed 7 September 2011, .

[footnote 67] ibid.

[footnote 68] Australian Customs and Border Protection Service, personal communication with Adam Delacorn (Research Officer, Victorian Parliamentary Library), 8 September 2011. See also: Australian Customs and Border Protections Service (2011) ‘Prohibited and restricted imports’, Australian Customs and Border Protections Service website, viewed 8 September 2011, .

[footnote 69] J. Lill (2008) ‘Off Ya Tree Staff Said Bongs Were Cream Dispensers: Court’, couriermail.com.au, 25 June 2008, viewed 9 September 2011, .

[footnote 70] A cocaine kit includes two or more of the following items: razor blade, tube, mirror, scoop, glass bottle.

[footnote 71] Other restrictions apply to specialist retailers regarding the method of display of smoking implements. For example, the smoking implements must not be illuminated or otherwise displayed so as to make the display stand out from, or appear brighter than, its surroundings (s 37).

[footnote 72] The Public Health Act 1997 contains a definition of ‘smoking accoutrement’, which includes pipes, but there does not appear to be prohibitions pertaining to the sale, supply, or display of ‘smoking accoutrement’.

This research brief contains information on the physical, psychological and social effects of cannabis use, statistics on cannabis use, an outline of the …