Every year, thousands of people appear before the local court for sentencing proceedings on police charges for possession of a prohibited drug, normally a small quantity of what some people refer to as recreational drugs – ecstasy, marijuana, cocaine, speed, ice, GHB etc. Some of these drugs are known by the scientific name: methylenedioxymethylamphetamine or MDMA; cannabis sativa, methamphetamine etc.

Possession of drugs, the supply of prohibited drugs, manufacture of drugs and cultivation of plants are offences in NSW under the Drug Misuse and Trafficking Act 1985. Penalties, even for possession, include imprisonment as a sentencing option.

All people appearing before the court risk the possibility of conviction and a criminal record. Even if the charge is dismissed, there is still a record kept of the result. A criminal record can preclude a person from undertaking certain occupations and travelling to certain countries.

The debate has raged for years about whether to decriminalise certain drugs – with a view to avoiding the impact that a conviction can have on a person’s future and reducing the ability of organized crime to profit from drug supply. Prohibition has failed at great financial and social cost.

Those who oppose decriminalization fear that it would lead to more people running the risk of trying drugs – which is a legitimate concern. But what if the drugs taken were lawfully manufactured to a safe user standard instead of made with a cocktail of deadly chemicals in a backyard lab? What if drug users could be registered with mandatory rehabilitation participation?

This article examines the failure of prohibition in Australia and cogent reasons for decriminalizing certain drugs. It is meant to encourage debate.

The history of drug prohibition in Australia

Australia has employed a policy of drug prohibition for a long time. In the late 1960s and early 1970s hundreds of thousands of American troops, many who were addicted to illicit drugs, arrived in Sydney from Vietnam. An industry arose to meet their needs, and once the soldiers left, other customers were found. When the ‘War on Drugs’ was announced in the 1970s, Australian states followed the lead taken by other countries around the world by tightening drug laws and increasing resources devoted to stopping the use, supply and manufacture of drugs. The federal government also showed its support by attempting to prevent drugs from being imported into Australia.

Today there are literally hundreds of criminal offences relating to drugs – ranging from personal drug possession and drug supply to the more serious offences of drug importation and drug manufacture. All of the NSW offences are covered by the Drug Misuse and Trafficking Act 1985 (NSW). Many of the importation offences are found in the Customs Act 1901 (Cth). All drug offences potentially carry a gaol sentence, though people caught with drugs other than for their personal use generally find themselves in more serious trouble.

The criminalisation and punishment of drug offences is supported by the vast majority of voters and any attempt to move away from such prohibition is likely to be met by strong opposition. Yet critics of Australia’s current drug policy argue that it is the prohibition – not the drugs themselves –causing the most damage to society.

The ‘Australia21’ report

In April 2012 a group of prominent Australians including Foreign Minister Bob Carr, former West Australian premier Geoff Gallop and former NSW Director of Public Prosecutions Nicholas Cowdery QC, released a report questioning Australia’s current illicit drug policy.

Entitled ‘The prohibition of illicit drugs is killing and criminalising our children and we are all letting it happen’,the report considered a 2011 Global Commission report stating that the international ‘War on Drugs’ has failed comprehensively, with devastating consequences for individuals and societies around the world.[1]

Concluding that the current prohibition of illegal drugs in Australia is creating more harms than benefits, the Australia21 report urges politicians to reopen the national debate about drug use, its regulation and control.

It is argued that by criminalising the supply and use of certain drugs, governments around the world have driven drug production and consumption underground. Such criminalisation has helped cultivate the development of a criminal industry and has put the production, distribution and control of illicit drugs in the hands of criminals, exposing young people, police and politicians to their corruptive influence. Governments have also negated themselves of responsibility to regulate and control the quality of substances that are in widespread use.

Many illicit drugs are highly addictive and harmful when used repeatedly. In this regard they can be directly compared to alcohol and nicotine. Because alcohol and nicotine are legal in Australia they are under society’s control for quality, distribution, marketing and taxation. This has enabled Australia to make great progress in recent decades in reducing the harm caused by tobacco. It is argued that similar inroads could be made in relation to currently-illicit drugs should their use be decriminalised.

The costs of drugs on society

Arguably the largest cost of the so-called ‘War on Drugs’ is the deaths caused by drug overdoses. Every year around 400 Australians die from illicit drug use, often because of ignorance about the strength of the drugs being ingested or injected. Thousands of others suffer the short and long term health consequences of drug dependence, unsafe injecting practices and infections.

The financial cost to society is just as staggering. Thousands of Australians have been robbed and targeted by drug addicts, and many more live in heightened fear of becoming a victim of crime. The increasing prison population also means a higher financial cost to society. A considerable percentage of inmates and on remand are in gaol because of drug offences, and many more are gaoled for offences related to drugs such as break enter and steal and property theft. According to a 2008 Australian Drug Law Reform Foundation report,

Nearly a quarter of violent crime attracting gaol sentences is attributable to illicit drugs.”[2]

Another major cost is the cost to the government who are tasked with enforcing laws relating to illicit drugs. All too often we see police with sniffer dogs at railway stations or raiding nightclubs hoping to catch people with small quantities of marijuana or ecstasy. The aim of the legislation regulating the use of sniffer dogs was to catch drug suppliers – not drug users. So far as the legislative intent was concerned, their implementation has been a hopeless failure.

In NSW the offence of driving under the influence (DUI) has existed for decades – if you are caught driving under the influence of a drug, whether prohibited or not, you face disqualification and other penalties including imprisonment. It is hard to argue against such common sense legislation aimed at the protection and welfare of the community.

However in recent years a law has been introduced targeting drug users who drive, though not affected by drugs at the time. This persecution of drug users criminalizes the past actions of the drug user. For example, a person who smoked cannabis 3 weeks ago may still have traces of the drug in their system – though it has absolutely no affect upon them. If they are subjected to a roadside ‘lick-test’ showing a positive result, they will have to attend court facing the same penalties as low range drink driving, including disqualification and fines – hardly a law aimed at rehabilitation. These recreational drug users should not be the target of our drug policy.

For too long the Australian drug policy has failed to address the social and economic factors that lead people to use drugs. Poverty and despair are at the root of most problematic drug use and it is only by addressing these underlying causes that we can hope to significantly decrease the number of problematic users. Perhaps policy should look at registration of users, quality control and rehabilitation measures.

The argument against decriminalisation

The main arguments against changing the current drug policy tend to be moral rather than evidence-based. Many people in society, in particular parents, fear illicit drugs and their consequences. Before policy change is contemplated the general public will need strong reassurance that any new policies will not exacerbate the current problems. Politicians must be confident that any change will improve, not worsen, the current situation.

The arguments in favour of decriminalising drugs

I.Prohibition doesn’t work

One of the main arguments in favour of changing our current illicit drug policy is that there is no evidence to show prohibition is working – there is ample evidence that prohibition has failed not only in relation to drugs, but also in relation to alcohol. Law enforcement agencies appear to have had little or no success in reducing the availability of illicit drugs. If we analyse the criminalisation of drugs and find that the costs outweigh the benefits then we should seriously consider rethinking our policies.

II.Decriminalisation would make drug use safer

It is also argued that if drugs were decriminalised, regulated and sold in measured quantities many deaths would be prevented each year. Because drugs are currently manufactured underground by criminal groups, drug users run the risk of purchasing ‘bad batches’ of drugs, or underestimating the strength of the drug they ingest or inject. Regulation would ensure that drugs meet national safety standards, reducing the number of drug-related deaths each year. Logically, the use of clandestine drug laboratories would cease or at the very least be significantly reduced. At present, such drug labs might add battery acid, carcinogenic materials and poisonous materials to the cocktail that is eventually sold to the ultimate user.

III.Decriminalisation would eliminate criminal groups

The market for drugs is demand-led. Criminalising the production, supply and use of illicit drugs means such activities go underground and are run by organised criminal groups who are making billions of dollars in profits. If these activities were legalised and government controlled, organised crime would be removed from the drug trade. The participants would be starved of their income enabling the government, rather than criminals, to regulate and control the market – and potentially to profit so that funding could be used to rehabilitate identified users. Criminal groups who cannot generate a profit will probably then abandon that criminal activity.

IV.Decriminalisation would reduce drug-associated crime

Using illicit drugs is expensive because pricing is linked to demand. Many people who are dependent on drug resort to stealing in order to fund their habit. According to a 2007 Australian Drug Law Reform Foundation report almost a quarter of prisoners in gaol sentenced with violent crimes are attributable to illicit drugs. Those in favour of legalising drugs argue that decriminalisation would enable the government to regulate the market, determining a much lower price and removing the need of users to turn to crime in order to fund their addiction.

Such a move would also reduce the burden on our prison systems, saving billions of dollars annually. Large amounts of public funds are currently allocated to law and enforcement and punishment despite persuasive suggestions that these measures are not cost-effective. It is argued that these resources would be better directed to treatment and harm reduction, viewing drug use as a health and social issue as we do with nicotine and alcohol.

If a drug user did not have to rob or steal to fund their habit because it was available to registered users from a hospital or clinic (such as the Kings Cross injecting room), they could presumably function better in society. If the government took the responsibility of manufacturing the drug, without the impurities, it would be safer for the ultimate users.

If the market were taken away from illicit drug suppliers, their income source would be curtailed. Why would people bother to import drugs into Australia in containers, in their luggage or in their bodies if the drug (in a safe form) could be purchased by a registered user – without penalty? The law could then be strictly applied to persons illegally supplying drugs – if there were any left. Persons in possession of drugs that were not manufactured by the government could face the full force of the law.

As indicated above, money from the sale of pharmaceutically safe drugs by the government could fund appropriate rehabilitation programs.

V.Decriminalization for persons with medical needs

Harsh drug policy prevents, in many cases, people with legitimate need for pain relief from getting fast-working, long acting relief. Cannabis is but one drug that could offer significant pain relief to cancer sufferers, people with multiple sclerosis, and other ailments. Should people with terminal illnesses have a choice in what sort of pain relief they wish to take?

VI.Safeguards, regulation and control measures could be implemented

Identification of a problem is always a good starting point for then being able to do something about it. Drug users, under a system where the government manufactured drugs in a safe form and distributed the product in a controlled fashion, could acknowledge that they were drug users by being registered as a user. Their use could be monitored and the subject of strict rehabilitation programs. No doubt there are many arguments that could be suggested as to how this might work. Bring on the debate.

Conclusion

Discussion of drug policy in recent years has been largely absent from the Australian political agenda except as an excuse for being tough on law and order. There is no denying that illicit drug policy is a very difficult issue for politicians to address. Although it is shown to be ineffective, a ‘tough’ drug policy is popular with the electorate. Yet given its proven ineffectiveness we should encourage the debate to be reopened. By maintaining a policy of prohibition and suppressing or discouraging debate about its costs and benefits, our governments are standing by idly while younger generations are being killed and criminalised.

[1] Australia21 Limited, ‘The prohibition of illicit drugs is killing and criminalising our children and we are all letting it happen’ found at www.australia21.org.au

[2] David Collins and Helen Lapsley, ‘The costs of tobacco, alcohol and illicit drug abuse to Australian society in 2004/05’, available at www.adlrf.org.au.