We need to regulate and tax drugs in a consistent manner, like we do alcohol and tobacco.
California legalised cannabis for recreational use in January, and Canada is preparing to follow suit with national laws in 2018. As global momentum towards decriminalising drugs builds, is it time to examine the effectiveness of Australia’s drug laws?
On a street bench in Pyrmont, Zack (not his real name) stacks tobacco into a cigarette paper. A planning manager for advertising campaigns in Sydney, Zack asks to remain anonymous as he flicks a lighter in front of his home-made rollie and directs the smoke away from me. His long hair, t-shirt and jeans might indicate he is in a creative industry. But apart from his casual Monday outfit, Zack is like most intelligent, articulate professionals I have met in other occupations. The only difference is that we’ve strolled out of earshot from his workplace to chat about his drug use.
“I smoke weed every day,” says Zack, who is among the more than 750,000 Australians who smoke cannabis at least weekly, according to the National Cannabis Prevention Information Centre. “For me, it’s the equivalent of a glass of red wine at night. I don’t see it being any worse. I never smoke weed or do drugs during a work day.”
Consuming small amounts of marijuana is legal in Uruguay, the Netherlands, certain US states and, bizarrely, North Korea. The drug is legal for medicinal purposes in Australia, but unless you meet stringent criteria and have jumped through several administrative hoops to obtain a prescription, possession is very much against the law.
But Zack says cannabis is “dead easy” to get hold of illegally. He spends about $400 a month on it. He also spends an average of $200 a month on MDMA (ecstasy) and has been known to fork out a lot more on weekends to buy other drugs including speed, acid and – on one occasion in his early 20s – ice.
“‘High-functioning user’ is a good term,” says Zack, describing himself. “A lot of the time the word ‘abuse’ is used when people talk about regular drug use. But that implies it is out of control, when sometimes the user has complete control of their use.”
Marijuana and ecstasy both carry a maximum $550 fine and two-year prison sentence in NSW if you are caught with a small quantity (30 grams or less for cannabis, 0.8 grams for ecstasy). Users also face the likelihood of a criminal conviction, which makes it difficult to apply for jobs in many industries, and impossible to travel to countries that do criminal background checks on travellers, like the US and Canada. Section 3A of the NSW Crimes (Sentencing Procedure) Act states that one aim of such punishment is “to prevent crime by deterring the offender and other persons from committing similar offences”.
But the deterrent aims of criminal law have never stopped Zack – even when he was caught carrying seven MDMA pills into Byron Bay’s Splendour in the Grass music festival in July 2017. Zack was one of 267 people that NSW Police caught in possession of illicit drugs at the festival.
“It was an awful thing to go through,” says Zack. “I had to go to court and spent about $3,500 on a lawyer. My girlfriend and I had been planning to move to Canada this year, but a criminal conviction would make that impossible.”
Zack was lucky to escape with a warning under section 10 of the NSW Crimes Act, with no conviction recorded, and an 18-month good behaviour bond. But did the scare affect his drug use?
“It hasn’t affected me one bit,” says Zack. “I went to a festival two weeks ago carrying three pills and nothing happened. The criminal law might stop some people, but not me or the kinds of people I know.”
Users are going to use
The 2013 National Drug Strategy Household Survey found that 2.9 million Australians aged 14 and over had used illicit drugs in the previous 12 months, and 8 million were estimated to have done so in their lifetime. The survey found a higher proportion of Australian adults were using drugs than adults around the world – 15 per cent of adults in Australia compared to 5 per cent of adults globally.
This is despite the efforts of a global “war on drugs” that has been raging since former US President Ronald Reagan declared it in 1982 and since former Prime Minister John Howard introduced Australia’s national “tough on drugs” policy in 1997. Even after Nancy Reagan’s famous “just say no” speech became the catch-cry of education campaigns delivered to Australian school children by Healthy Harold in the 1990s, Australians have continued to say yes to drugs.
“You can throw all the evidence you want at politicians, but it has very little effect,” says Matt Noffs, who sees an incessant flow of drug users in his work as CEO of Australia’s largest drug and alcohol treatment service provider for young people, the Noffs Foundation. “A lack of evidence isn’t the problem; the evidence is clear. Prohibition has failed.”
Principal Solicitor of Sydney’s Inner City Legal Centre (ICLC) Hilary Kincaid says that, along with minor assault cases, drugs possession charges make up the majority of criminal cases coming to her community legal centre. Statistics from Legal Aid NSW support her assertion, showing that between 2016 and 2017 the most common type of offence Legal Aid lawyers offering duty services in courts dealt with was “possession/use of prohibited drug”.
“Sometimes the person caught with drugs is an addict or a sex worker who uses drugs while they work, and sometimes it’s a one-off situation for a young person experimenting,” says Kincaid. “The criminal law doesn’t seem to deter either case – addiction or experimentation.”
Groups like Harm Reduction Australia, of which Matt Noffs is a member, argue that drug prohibition is not only failing, but it is killing Australians in the process. They point to recent data from the Australian Bureau of Statistics (ABS), which in 2016 reported that drug deaths were rising in Australia. In 2016, 1,808 drug-induced deaths were registered, and 71 per cent of those were due to accidental overdose – not suicide or other intent.
“We need to rid ourselves of the notion that we can completely eliminate drug use,” says Noffs, who is studying a Master of Criminal Justice at the University of NSW. “Our vision for Australia and our drug laws should be to say, ‘Let’s make Australia the safest place in the world to use drugs.’ Let’s take back control and minimise the harm and cost to the economy that unregulated drug use causes.”
The dangers of a black-market system
Users like Zack are forced to get their “gear” from illegal distributers in NSW. This means they have no idea of the toxicity of the drug or what dangerous additives could be mixed up in it.
“I remember buying what I thought was 30 ecstasy pills from a friend of a friend,” says Zack. “It turned out they were ketamine, which is like a horse tranquiliser. It made my friends and me super paranoid.
“Another time, a bunch of us bought what we thought was MDMA for a festival. I think the pills were full of ice or something really strong. Two people were hospitalised. Everyone else was up for three days and in bad mindsets.”
Zack notes that first-time drug users have no medical information about what their threshold or tolerance for a particular drug is. They roll the dice and many lose – resulting in multiple hospitalisations being reported after every major music festival in Australia.
“Ten or 15 years ago, we were worried about ‘ratsack’ or other ingredients that might be mixed up with the drug,” says Noffs. “Nowadays, it’s the purity that is a concern. MDMA can be too strong for a first-time user.”
The 2015 Global Drug Survey found that Australians take ecstasy at higher rates per capita than any other country (2.1 pills per session on average, compared to 1.59 in the UK and 1.72 in the US). It’s why Noffs has been calling for Australia to introduce pill-testing at festivals for years.
“I don’t think death is a proportionate outcome for young people experimenting with drugs,” says Noffs.
“If my daughters decided to use ecstasy, I’d love them to be able to take their pills to a doctor and say, ‘Can you tell me what is actually in this pill? Is it too strong for me?’ The doctor could take the opportunity to have an educational conversation about the consequences of using drugs.”
This is the thinking behind Australia’s first medically-supervised injecting centre in Kings Cross, which was set up by a group of doctors including Alex Wodak during Sydney’s heroin and HIV crises of the 1990s. Wodak, a doctor from St Vincent’s Hospital who is now President of the Australian Drug Law Reform Foundation and of Harm Reduction Australia, risked prison time for his part in founding the centre that offers a doctor-supervised space with clean needles for users to ingest their drugs. Wodak says it has helped halt the spread of HIV in its tracks. And not one fatal overdose has occurred at the centre since it opened.
“One day it suddenly dawned on me,” says Wodak. “I thought, ‘What the hell is going on? Here is a serious threat to health and the economy of Australia. Everyone agrees HIV is a threat. But politicians don’t want to let us run a clean needle syringe program.’
“The only way it made sense was if people were, for some reason, trying to protect our tough-on-drugs policy.”
A different approach
Portugal is often cited as the role model for harm minimisation strategies because in 2001 it decriminalised the use of all drugs, even heroin and ice. Criminal punishments for trafficking remained the same, but instead of sending people to prison for purchasing or possessing small quantities (up to a 10-day supply), the government made drug use an administrative offence – like a parking ticket. Users faced small fines and occasionally referral to a treatment program, not jail time and a riminal record. Seventeen years on, data shows the strategy has been incredibly effective.
Portugal’s Health Ministry reported that HIV infection plummeted from 104.2 new cases per million in 2000 to 4.2 cases per million in 2015. There were just 0.58 drug deaths per 100,000 people, which is 10 times less than what the ABS estimated Australia’s drug death rate was in 2016 (7.5 deaths per 100,000 people). Moreover, the critics who imagined decriminalisation would increase drug use have been proven wrong: the Ministry found that just 25,000 people were using heroin in 2015, compared to 100,000 users in 2001.
“Problematic drug use has dropped like a stone in Portugal,” says Wodak. “Crime related to drug use has dropped, the percentage of the prison population presenting with severe drug problems has decreased, and the government is saving tremendous amounts of money.”
A report by Deloitte Access Economics found that Australian State governments could save more than $110,000 per prisoner per year by placing a drug-addicted offender in rehabilitation instead of jail. It’s why Wodak and Noffs say drug users should be rehabilitated in Australia’s far-cheaper health system rather than the criminal system, where users are more likely to meet other criminals and become part of the distribution chain.
“Short, fixed terms of imprisonment can actually compound a person’s drug dependence,” says NSW Legal Aid solicitor Rhiannon McMillan. “Being arrested, refused bail or sentenced to jail can disrupt social support networks, lead to a loss of housing and exacerbate the complex problems underlying a person’s drug use. It’s very easy to say, ‘Go and get a job’, but how many employers are actually willing to give a ‘convicted criminal’ work?”
Noffs and Wodak want Australia to adopt a Portugal-inspired harm reduction policy, but they say decriminalisation doesn’t go far enough.
“I think we need to regulate and tax drugs in a consistent manner, in the same way we do alcohol and tobacco,” says Noffs. “The word ‘legalisation’ conjures up images of Bob Marley and doesn’t do anyone any favours. But regulation provides control.”
California legalised cannabis in January 2018 and a report by BDS Analytics and ArcView estimated that by 2021, US consumer spending on legal cannabis would be more than AU$25 billion and create more than 400,000 new jobs. Australia, which legalised exports of medicinal cannabis in January 2018, could experience a similar economic boost if the plant was being grown and sold for recreational use at home.
“If you legalised all drugs, what involvement would a regular user have with black markets and criminals? None,” says Zack.
“I would be willing to pay far more to get it from a government chemist, with confidence that there were no nasties in it. That would free up funds for the health system to treat addicted users. It’s probably more effective than slapping young kids with criminal records for experimenting with drugs, then expecting them to get their lives back on track.”