The future of drug laws – to punish or reprieve


Photo by Elsa Olofsson on Unsplash

Proposed laws to remove criminal penalty for possessing small amounts of illicit drugs in the ACT.

Chris Gough used heroin for more than a decade. Even after recovering from opioid
dependence, his criminal conviction still controlled his life.

He lived in poverty on the streets of Melbourne in the grip of drug dependence, but in trying to rejoin society, his criminal record made it nearly impossible to get a job or housing.

“The big one it affects is the way you view yourself and the way your family views you,” Mr Gough said.

“As well as how future employers view you. There were a number of years there where I couldn’t get a job because of my criminal record.”

He is now the executive director of the Canberra Alliance for Harm Minimisation and Advocacy, a health and human rights group that helps people access drug treatment and return to society and employment.

Canberra Alliance for Harm Minimisation and Advocacy executive director Chris Gough.

Mr Gough hopes that decriminalisation legislation proposed by Labor backbencher Michael Pettersson MLA will stop others from living that desperate life.

In February, Mr Pettersson tabled the Drugs of Dependence (Personal Use) Amendment Bill 2021 in the Legislative Assembly.

The proposed legislation removes the criminal penalty for possessing small amounts of illicit drugs in the ACT. It extends the bill that decriminalised cannabis possession almost 30 years ago and aims to send drug users into treatment instead of the criminal justice system.

“We need to help people who use drugs and sending people to prison does not help them. That’s why I brought forward this private member’s bill,” Mr Pettersson said.

The penalty for possessing small amounts of most illicit drugs in the ACT is up to two years in prison, but any level of involvement in the criminal justice system can be detrimental.

“If you receive a criminal conviction, it can be hard to apply for jobs, it can be hard to get certain housing, it can be impossible to travel overseas,” Mr Pettersson said.

“Those are radical effects on someone’s life, and I don’t necessarily think that aligns with getting caught with a small amount of illicit substance.”

What does harm minimisation mean?
Reducing the harm illicit drugs cause instead of increasing criminal penalties as a deterrent
is an approach that is already central to Australian drug legislation.

ANU Law Professor Desmond Manderson said harm minimisation had been the centrepiece of Australian drug policy since the 1980s.

“It’s on the front page of the commonwealth-state drug strategy [the National Drug Strategy]. It’s there in every document,” he said.

The harm minimisation approach has introduced safe injecting rooms or needle exchanges across Australia, as well as education and rehabilitation programs.

The ACT already has a harm minimisation approach to cannabis. In 1992, personal possession of cannabis was decriminalised, and is the legislation on which Mr Pettersson’s private member’s bill is based.

Recent cannabis use by population percent

Since this legislation was introduced, the ACT has recorded a steady decline in reports of cannabis use, reaching and maintaining a rate below the Australian average since 2007.

Not everyone is on board with the approach
Not everyone is convinced that Mr Pettersson’s proposal is a sensible idea. Opponents of the bill are concerned that drug use could increase, leading to more crime in the ACT.

Some community members have voiced their opposition to the legislation. Among them is president of the Australian Federal Police Association, Alex Caruana.

“There’s no such thing as a victimless crime,” Mr Caruana said. “We do know that drugs are a problem, and we do recognise that it’s a health problem.

“However, we need to make sure before we decriminalise these substances that there are correct checks and balances put in place.

“Ultimately, if someone was to buy drugs, that would still be a criminal act.

“Those drugs, when you follow that back to the source, they’re being used to fund heinous and terrible things, including sexual slavery, terrorism, and other areas of organised crime.”

Australian Federal Police Association president Alex Caruana.

He also has concerns that decriminalising drugs could lead to an increase in use and other
related crimes.

“I understand there is some argument about the stigma of taking drugs, and that might stop people from going to get help,” Mr Caruana said.

“I would go so far as to say that, yeah, there is a stigma with taking drugs, and in my opinion, rightly so, because drugs often lead to other crimes.”

Mr Pettersson’s proposed bill also contradicts the federal law, which may mean police have to decide which legislation they enforce. Mr Caruana says that the government must consider what is in the best interest of Canberrans before introducing legislation.

“We need to do what’s best for the community, and the ACT Government has a duty of care to make sure the community is safe,” Mr Caruana said.

“I don’t think that decriminalising drugs is a way to keep the community safe.”

What could the future be for Canberra?
Similar drug laws have already been introduced overseas.

Portugal decriminalised personal possession of illicit drugs in 2001 but continued to enforce criminal offences for trafficking and dealing.

People caught with drugs now have the substance confiscated and are assessed and fined or directed to rehabilitation and education programs.

“I think it’s pretty clear that the Portuguese approach has been broadly successful in reducing harm caused by these drugs,” Professor Manderson said.

“It has not led to an explosion in drug use, either in drugs like heroin or drugs like cannabis.”

Portugal overdose deaths

In Portugal, illicit drugs are not sold on the ‘white market’ – the legal, official, authorised, or intended market for goods and services – but it may be a future possibility for the ACT.

“I think it’s really important that we understand it’s not an all-or-nothing thing,” Professor Manderson said.

“There are many different regulatory models. I don’t think anybody is thinking that you’ll be able to buy heroin in a grocery shop.”

Banning some illicit substances only increases the harm they cause, he said.

“Prohibition is not regulation, it’s the opposite of regulation,” Professor Manderson said.

“There’s no regulation, it’s just black market, and that means anything goes. We have no control over what goes into drugs, how safe they are. We’ve got no testing mechanisms.”

The best approach to drug regulation must consider each substance individually, he said.

“If we’re looking to the future, then we want to look at all the different ways in which we can control the use of drugs, in which we can manage how people use them, the contexts that they can use them, where do they get them from, under what conditions, is there supervision on how they’re using those drugs, what are the warning signs, how do we connect people to resources that provide them with correct information instead of just myth,” he said.

“All of those sorts of things are regulatory possibilities, and I think it’s not just a question of prohibition or free market. On the contrary, prohibition is the free market.”

After working in harm reduction for many years, Mr Gough is confident that decriminalising drugs is the way forward. “We are seeing more and more countries realise that prohibition has failed,” he said.

“That it’s not fair, it doesn’t work, it sets in stone inequities in the ability to access health services. It sets in stone discrimination.

“Drug users are present throughout society. Mothers, fathers, daughters, brothers, best friends.

“We need to support drug users to access healthcare and treatment, not throw them in prison and punish them for a health issue.

“What that looks like is decriminalisation and supporting our community to thrive and overcome adversity, not punish them for decades with criminal records.”

This story was originally published as ‘Should drug laws aim to punish or rehabilitate?’ in The Canberra Times, 14 November 2021.