Index

Jennifer Norberry
Law and Bills Digest Group
20 May 1997

Contents

Major Issues Summary

Introduction

Major Illicit Drugs-What are they, how are they used and what are their effects?

Illicit Drugs: Consumption, Costs and Public Opinion

Australian Illicit Drug Laws

Concluding Remarks

Glossary

Endnotes

Major Issues Summary

Alcohol and tobacco are drugs and account for the overwhelming number of drug-related deaths in Australia. A recent survey conducted by the National Drug Strategy found that the public identifies alcohol and tobacco as the drugs causing the most deaths in Australia and as being the drugs of most concern to them. However, when asked to name the drugs they thought of when people talked about a 'drug problem', about two-thirds of those sampled mentioned cannabis and heroin, followed by cocaine, alcohol, amphetamines and tobacco. The Australian public also differentiates between illicit drugs(1) and between consumers and sellers of drugs. It appears to favour heavy penalties for the sale and supply of illicit drugs and opposes the legalisation of personal use of heroin and cocaine. However, nearly one third of people recently surveyed for the National Drug Strategy supported legalising personal use of cannabis.

Australia's illicit drug laws were slow to develop and evolved in response to three stimuli: anti-Chinese prejudice in the late 19th century, international treaties and the influence of Australia's allies such as the United States, and the growth of recreational and dependent use of illicit drugs in the 1960s and 1970s.

In 19th century Australia a wide range of drugs, including opiates, were available to the public from doctors, pharmacists, homoeopaths, grocers and sellers of proprietary medicines. What are today classified as illicit drugs were available in medicines, for example, opium and morphine in Bonnington's Irish Moss. The medical profession had not yet come to dominate the provision of health services; self-treatment was common and dependence on opium or cocaine was generally therapeutically induced.(2) It has been suggested that the profile of drug dependence in Australia at the turn of the century was similar to that of other nations with the typical dependent user being a middle class, middle aged woman or health professional. This user profile remained largely unchanged until the 1960s.

Since the 1970s, legislators and policy makers have debated the issue of the appropriateness and effectiveness of the criminal law as a means of combating illicit drug use-especially the use of cannabis. Numerous inquiries have been undertaken and they continue to be established. The 1995 Western Australian Task Force on Drug Abuse identified 15 major inquiries into drug abuse in Australia since 1970. To this list could be added inquiries in the ACT, Queensland, South Australia, Victoria and Western Australia itself. Among other things, these inquiries examined:

• the provision of drug treatment and education services;
• the use of licit and illicit drugs and the social consequences of that use;
• links between organised crime and drug trafficking;
• the use of prescription drugs;
• policy options for dealing with illicit drugs; and
• the consequences of a prohibitionist approach to drugs.

In 1985, the National Campaign Against Drug Abuse was established as ' ... a cooperative venture between all governments and the non-government sector with the common aim "to minimise the harmful effects of drugs and drug use in Australian Society."'(3) The National Campaign Against Drug Abuse and its successor, the National Drug Strategy, have fulfilled important roles in raising awareness, in policy development and in the collection of data about the use of drugs (including alcohol and tobacco) and about community attitudes to them. Australia is seen as a world leader in harm reduction approaches to drug use. However, many questions remain to be answered about how best to respond to the illicit drug problem in Australia. In the past, some adversaries in the debate about illicit drugs have contented themselves with either attacking the policy of drug prohibition as a failure or contending that all illicit drugs are harmful and must be proscribed.

Fortunately, there may be a growing recognition that research and evaluation can play a vital part in informing discussions and decisions about illicit drug laws and policies. Such research is important:

• in identifying who uses illicit drugs and how and why they use them;
• in assessing whether illicit drug treatment programs and educational campaigns are working and how they can be improved;
• in evaluating existing drug laws;
• in conducting comparative research and evaluation; and
• in testing the claims of reformers either through assessing existing 'reformist' legislation or by establishing and evaluating carefully controlled treatment trials.

It is difficult to imagine a response to illicit drugs that does not include law enforcement. Research and evaluation also have a significant role to play in determining how law enforcement can most effectively deal with the presence of illicit drugs in Australian society. Such investigations can contribute to the implementation of illicit drug laws and policies that are appropriate for Australia and meet our international treaty obligations.

Introduction

Illicit drugs continue to be in the news with the work of the Wood Royal Commission in New South Wales, proposals for a heroin trial in the ACT, the establishment of a Premier's Drug Advisory Council in Victoria and a Task Force on Drug Abuse in Western Australia, and the introduction of infringement notices for minor cannabis offences in the Northern Territory. Possession, supply and manufacture of illicit drugs are largely dealt with under State and Territory legislation. However, the Commonwealth is also closely involved with illicit drugs policy, research and laws-for example, through the Ministerial Council on Drug Strategy(4) and the National Drug Strategy, the Standing Committee on Attorneys-General, as a consequence of Commonwealth powers over imports and exports, and by virtue of international treaty obligations.(5) The Commonwealth has also assisted United Nations efforts against illicit drug use and trafficking-for example, through its contributions to the United Nations Fund for Drug Abuse Control.

There is also the potential for the Commonwealth to play a greater role in enacting illicit drug laws through the use of its external affairs power in section 51(xxix) of the Constitution and, in the case of the ACT and the Northern Territory, by virtue of the plenary power contained in section 122 of the Constitution. In addition, should the States enact drug laws that the Commonwealth considered to be in breach of its international treaty obligations, there is the possibility that the Commonwealth could enact legislation that would make those laws inoperative as a result of section 109 of the Constitution.

Drugs are defined by the World Health Organization as 'any chemical entity or mixture of entities used for treatment or alleviation of disease, or for non-therapeutic purposes. Psychoactive drugs are those that alter mood, cognition or behaviour.'(6) The term 'drugs' thus includes licit substances such as alcohol, tobacco, prescription and over-the-counter medication, as well as illicit substances such as cannabis and heroin.

Alcohol is the most frequently used drug in Australia. There is also a high rate of tobacco consumption. The social and individual harms associated with the use of alcohol and tobacco have been extensively publicised and documented by the National Drug Strategy. Since the National Campaign Against Drug Abuse was established in 1985, there has been a three-fold increase in the number of people who identify alcohol as part of the drug problem.(7) It appears that far fewer people associate tobacco with the 'drug problem.' Illicit and licit drugs have at least one thing in common-if abused or incorrectly used they are potentially dangerous to human health.

Illicit drugs continue to be seen by Australians as the major component of the drug problem(8) and are the subject of this paper. It describes some of the major illicit drugs, their use, effects, and the costs of drug laws and public attitudes to them. It then gives an historical account of illicit drugs legislation in Australia, and briefly outlines current law and some recent examinations of drug law reform. The paper does not deal with performance enhancing drugs such as anabolic steroids. Anabolic steroids are the subject of an earlier Research Service paper.(9)

Major Illicit Drugs-What are they, how are they used and what are their effects?

Cannabis

Marijuana, hashish and hashish oil come from the Indian Hemp plant (cannabis sativa) and contain the psychoactive chemical THC. Cannabis leaf and the flowering tops of the cannabis plant are dried before use and are commonly referred to as marijuana or cannabis. Hashish or cannabis resin is extracted from the cannabis plant and compressed into blocks. Hashish oil is distilled from the cannabis plant or from cannabis resin and generally has the highest THC content of all cannabis products. It appears that cannabis seeds arrived in Australia with the First Fleet.(10) Most cannabis in Australia is grown domestically,(11) although cannabis products such as hashish and hashish oil are also imported.(12) Marijuana and hashish are usually smoked but can also be eaten.

The cannabis plant was cultivated for thousands of years to produce textiles, paper, rope and bowstrings, and was thus important in both commerce and warfare. It was also used in China as early as the second century BC as an anaesthetic, and in India and Asia Minor in religious ceremonies and as a medicine. There is currently a resurgence of international interest in the cultivation of cannabis with a low THC content for paper and cloth, and some trial cultivation projects for these uses have been commenced in Australia.(13) In the United States and the ACT there have also been recent calls to legalise the medical use of cannabis.

In 1994, a literature review entitled The Health and Psychological Consequences of Cannabis Use was published by the National Drug Strategy.(14) It identifies a number of acute and chronic effects of cannabis use. Acute effects-that is, effects experienced in the short-term-include mild euphoria and relaxation, impairment of short-term memory, anxiety, depression, and impairment of motor skills such as driving. In susceptible individuals, there may be an increased risk of psychosis. There is some evidence that chronic cannabis use may result in minor impairment to the immune system and produce dependence on the drug, that it should not be used by those with cardiovascular disease or hypertension, and that its use in pregnancy may result in low birthweight infants. Research suggests that chronic cannabis smoking predisposes users to bronchitis and lung cancer.

There is also evidence of an association between cannabis use and fatal traffic accidents. The Western Australian Task Force on Drug Abuse recently studied 197 traffic fatalities involving drugs which act on the central nervous system. Cannabis was found either alone or in combination with alcohol or other drugs in 48.6% of these accidents.(15)

The 1994 National Drug Strategy review concluded that adolescents should be discouraged from regularly using cannabis because of the drug's potential to impair educational performance. Some studies find evidence that chronic cannabis use in adults produces apathy but other writers conclude that such effects, if they exist, are relatively rare.

Heroin

Heroin was first synthesised in England in 1874 and is manufactured from morphine, a drug derived from the opium poppy. Opium poppy for the illicit drugs market is grown in the Golden Triangle (Burma, Laos and Thailand); the Golden Crescent (Pakistan, Afghanistan and Iran); the Middle East and South America. Most heroin seized in Australia comes from the Golden Triangle.

Heroin is usually injected, although it can also be inhaled or smoked. It produces what is called a 'rush' in the user-a feeling of intense euphoria. This is followed by feelings of drowsiness and lethargy. Heroin is classified as a narcotic. It does not produce hallucinations like LSD. Its effects are described in the following way in the Encyclopedia of Psychoactive Drugs:

The dangers of heroin use include dependence, fatal overdose, collapsed veins, septicaemia and the transmission of diseases such as hepatitis B, hepatitis C and HIV through unsafe injecting practices. Other reported short-term adverse effects of heroin use include nausea, vomiting, itching and constipation, with long-term users risking the possibility of respiratory, reproductive and gastrointestinal diseases.(17)

Some of these consequences may be associated with the fact that because heroin is an illicit substance, users cannot predict its purity or know whether it has been adulterated with other more toxic material. Pure heroin itself is relatively harmless to the body.(18) However, heroin users rarely consume the drug in a pure form. It is likely to be cut (mixed) with other substances-including talcum powder, starch, baking powder, quinine and sometimes strychnine. This adds to the harms associated with heroin use for a number of reasons. Adulterants added to heroin may themselves be toxic and cause health problems or users may overdose because the heroin they use is purer than they expect-a problem recently experienced by heroin users in Australia. Lastly, users tend to inject rather than smoke or sniff heroin when the price is high (one of the consequences of illegality) and the purity is low. Unsafe injecting drug use brings with it the risk of the transmission of serious disease.

Heroin was (and in some countries still is) used as an analgesic for severe pain, in terminal illness and in childbirth. It has also been prescribed for its calming and sleep-inducing properties. However, there is controversy about the medical use of heroin, especially in relation to whether it is a more effective painkiller than other derivatives of opium such as morphine.

Lysergic Acid Diethylamide (LSD)

LSD is a synthetic drug first produced by Dr Albert Hoffman in 1938. It is synthesised from lysergic acid which itself is obtained from ergot, a fungus that grows on rye grass. Its use as a recreational drug dates from the 1960s.

LSD is manufactured in clandestine laboratories in the United States, the United Kingdom and the Netherlands. Most commonly, microdots or paper impregnated with LSD are taken orally. LSD can also be injected, inhaled or absorbed through the skin.

LSD is classified as an hallucinogen. Its effects include depersonalisation, loss of body image, a dream-like state, changes in spatial perceptions, synaesthesia, distortions of time, lack of concentration, impairment of judgement, euphoria and despair. A bad LSD 'trip' may produce terror, panic or aggression. LSD also induces a wide range of physiological changes including elevated heart rate, blood pressure, blood sugar and body temperature; dilation of the pupils; muscular weakness; tremors and twitching.

Early scientific research sought to determine whether LSD was useful as a painkiller, for psychiatric disorders and for palliative treatment in terminally ill patients. It is not currently used for any of these purposes.

Amphetamines

Amphetamines were first produced in 1887 in the form of the synthetic drug benzedrine. Employed initially as a nasal decongestant and in the treatment of bronchitis and asthma, amphetamines today have few medical uses. These include appetite suppression, and the treatment of narcolepsy and juvenile hyperactivity. Recreational use of amphetamines probably began in the 1920s when amphetamine tablets appeared in pharmacies.

The term 'amphetamines' covers a wide range of synthetic psychostimulants including MDA, MDEA, MDMA (ecstasy), methamphetamine and PMA. After cannabis, amphetamines are probably the most widely used illicit drugs in Australia. They are thought to be a more attractive psychostimulant than cocaine because, being manufactured domestically and not having to pass through the customs barrier, they are cheaper than cocaine and more readily available.

Amphetamines are produced in powder, liquid, tablet and capsule form. They can be inhaled, swallowed, injected or smoked. Amphetamines are regarded as hallucinogenic stimulants. They increase heart rate, blood pressure and respiration rates, suppress appetite, boost confidence and energy, and often depress the desire to sleep or eat. Once the 'high' associated with amphetamines wears off, the user may feel tired, depressed and irritable. Heavy use of amphetamines may produce mood swings, impair concentration, increase anxiety and energy levels, and lead to panic attacks or violence.(19)

Ecstasy or MDMA (3,4-methylenedioxymethamphetamine) is an amphetamine. It was first synthesised in 1914. Its original uses were medical. It does not appear to have been used recreationally until the 1980s.

Ecstasy is usually available as tablets or capsules. It leads to mild hallucinations, increased heart beat, elevated blood pressure, and a sense of well-being. At high doses it produces confusion, anxiety, sweating, respiratory problems, hallucinations and cardiovascular effects. If used regularly, it is reported to cause brain haemorrhage and damage to major organs such as the heart and liver.

Ecstasy is used at 'rave parties' where, in combination with energetic dancing, it may lead to heatstroke or, if too much water is drunk by the user, to death through water intoxication.(20) Such deaths have been reported in Australia -most prominently, that of Sydney schoolgirl, Anna Woods, in 1995.

More ecstasy is being imported into Australia. As recently as 1993, there were few seizures of ecstasy at the customs barrier. In 1994, 2.9 kilograms were seized. However, in the period January to August 1996, 29.9 kilograms were seized.(21)

Cocaine

Cocaine is produced from coca, a plant which has been grown in South America for at least 2,000 years. Coca leaf is still used today in South America to relieve hunger, fatigue, and cold.

In the later half of the 19th century, cocaine was widely used in patent medicines, alcohol and soft drinks. Until 1909 it was an ingredient of Coca-Cola. It was also prescribed by Sigmund Freud as a cure for alcohol and opium dependence. In medical practice, synthetics such as novocaine and xylocaine have largely replaced natural cocaine.

Cocaine is a stimulant and comes in a variety of forms, but in Australia it is most commonly available as a white powder (cocaine hydrochloride). When used recreationally cocaine powder is usually inhaled. However, it is also sometimes injected, smoked or drunk. It produces euphoria, enhances sensation and heightens confidence in mental and physical powers. There is some dispute about whether cocaine use can lead to physical dependence. However, there is agreement that it can produce psychological dependence and, in chronic users:

Crack cocaine is made from cocaine powder, baking powder and water and is smoked by users. Its cost per unit is generally lower than cocaine powder and it produces a rapid and intense 'high.'(23) At any dosage, the use of crack cocaine carries the potential for serious and life-threatening effects including convulsions, depression, and cardiovascular disorders such as heart attack and stroke.(24)

Cocaine is imported into Australia from South America, generally via the United States. There is little evidence of crack cocaine in Australia. In 1994, the Australian Bureau of Criminal Intelligence reported that there had been no seizures of crack by law enforcement agencies in Australia and 'no incidence of "crack" availability' in either 1993 or 1994.(25)

Illicit Drugs: Consumption, Costs and Public Opinion

Street Prices of Illicit Drugs

Prices of illicit drugs may vary from jurisdiction to jurisdiction and according to quality. The Australian Bureau of Criminal Intelligence produces information on State and Territory drug prices. In the period April 1996 to June 1996, prices in the ACT were estimated to be:

• cannabis leaf -1 gram -$25;
• cannabis leaf -1 ounce -$350;
• heroin -1 gram street -$450;
• amphetamines -1 gram street -$100;
• ecstasy -$25;
• LSD -1 tablet -$25;
• cocaine -1 gram street -$250-$300.(26)

Use of Illicit Drugs in Australia

Cannabis is the most frequently used illicit drug in Australia. In December 1993, a survey of some 1,600 Australians was conducted.(27) Approximately 39 per cent of those who responded had used cannabis at some time; about 16 per cent had used cannabis during the previous year, and some 6 per cent had used cannabis in the previous two weeks. Another larger sample obtained at the same time produced somewhat lower figures. In this survey, 3,500 Australians were sampled for the National Drug Strategy Household Survey. Thirty-four per cent of the sample reported having used cannabis at some time in their lives.(28) The most recent household survey conducted by the National Drug Strategy was carried out in 1995. The 1995 survey found that 31 per cent of those sampled who were aged over 14 years had tried cannabis at some time.(29) These data compare to about 12 per cent of adults who reported ever having used cannabis in 1973.(30)

According to recent national surveys, lifetime and recent use of cannabis is highest in the Northern Territory and lowest in Queensland. In South Australia, which introduced legislation decriminalising minor cannabis offences in 1986, and the ACT which introduced similar legislation in 1992, lifetime and recent use of cannabis appears not to be significantly different to that in other jurisdictions.(31)

In comparison with cannabis, far fewer Australians have ever used heroin, cocaine, amphetamines or hallucinogens. In 1991, a survey of almost 2,500 Australians was conducted for the National Campaign Against Drug Abuse. Of those surveyed, more than 98 per cent reported never having used heroin and 97 per cent said they had never used cocaine.(32) Ninety-three per cent said they had never used hallucinogens and 92.6 per cent reported never having used amphetamines. The 1993 National Drug Strategy Household Survey found that 1.7 per cent of the population had tried heroin, 2.4 per cent had used cocaine, five per cent had used amphetamines, seven per cent had used hallucinogens and three per cent had tried ecstasy or designer drugs.(33) The 1995 Household Survey revealed that 1.4 per cent of the population had ever tried heroin, three per cent had tried cocaine, 6 per cent had tried amphetamines, 7 per cent had tried hallucinogens and 2.4 per cent had tried ecstasy or designer drugs.(34)

The number of Australians who have recently (ie in the last 12 months) used cocaine, heroin, amphetamines, hallucinogens or designer drugs is also small. The 1995 National Drug Strategy Household Survey found that 0.9 per cent of the population have used cocaine recently, 0.4 per cent have used heroin recently, 2.1 per cent have used amphetamines recently, 2.0 per cent have used hallucinogens recently and 0.8 per cent have used ecstasy or designer drugs recently.

What are the socioeconomic characteristics of drug users? Some recent research which has been done involving injecting drug users casts doubts on traditional ideas. Injecting drug use is often associated with chaotic lifestyles, unemployment and poor education. Australian studies have tended to bear out these views. One Western Australian study of injecting drug users who had been in treatment found that only 24 per cent had completed secondary schooling and about 80 per cent were unemployed.(35) However, more recent work suggests that the profile of injecting drug users who have had little or no experience in drug treatment may be different. Two researchers from the National Centre for Research into the Prevention of Drug Abuse found that 44 per cent of such drug users were married or living with their sexual partner, nearly 24 per cent had finished high school, about 22 per cent had completed trade or technical school education, nearly 7 per cent had finished a university or college course, 46 per cent were employed and nearly 17 per cent owned or were buying their own home.(36)

Death and Drug Use

Since 1985, the Commonwealth Department of Human Services and Health has published statistics on abuse of licit and illicit drugs. It is estimated that almost one in five deaths in 1992 were caused by the use of licit or illicit drugs. Of these, 72 per cent were caused by tobacco, about 25 per cent by alcohol and 3 per cent by illicit drugs.(37)

The role of illicit drug use in causing death in the community varies according to age group. While in 1992, 1 per cent of drug-related deaths in the population aged over 35 years were caused by illicit drug use, about 34 per cent of drug related deaths in the 13-34 year age group were caused by illicit drugs. Unsafe injecting drug use may also cause death through the transmission of HIV, hepatitis B and hepatitis C and thus contribute to an increase in illicit drug-related mortality in the future.(38)

Different conclusions have been drawn from statistics like those cited above. For some commentators the statistics indicate that illicit drugs are less dangerous than licit substances such as tobacco and alcohol. For others, they demonstrate the effectiveness of prohibition in controlling drug-related mortality.(39)

The Costs of Illicit Drug Use and Policies in Australia

There are many difficulties in trying to assess the economic and social costs of illicit drug use in Australia. A number of attempts have been made.

In its report Drugs, Crime and Society, the Parliamentary Joint Committee on the National Crime Authority estimated law enforcement costs associated with illicit drug use at $123.2 million in 1987-88. This included costs of the Australian Federal Police, the National Crime Authority, the Australian Customs Service, State police services, prisons and the courts. Other writers also attempted to estimate the costs of law enforcement for 1988-these estimates range from $258 million(40) to $319.6 million.(41)

More recently, the National Drug Strategy published The Social Costs of Drug Abuse in Australia in 1988 and 1992. The authors of this work estimate that the tangible economic costs of illicit drug abuse(42) (in 1988 prices) for 1988 were $908.4 million and for 1992, $1119.7 million-an increase of 23.3 per cent. These costs do not include ambulance services, welfare, absenteeism or crime, as the authors regard such matters as unquantifiable. About one-third of the tangible economic costs were law enforcement costs.(43) The balance of quantifiable costs were net production costs and health care costs. Production costs are the costs to production that flow from drug-related death and illness adjusted for such things as consumption resources made available to the community through premature deaths. Health care costs include the costs of medical services, hospital and nursing home beds adjusted for the savings that result from death and illness due to illicit drug use.

The Criminal Justice System, Crime and Illicit Drugs

A recent study entitled The Social Impacts of the Legislative Options for Cannabis Use in Australia,(44) collated nationwide figures on the law enforcement and criminal justice system response to cannabis use. The study concluded that the majority of illicit drug use offences in Australia are for possession or use of cannabis. It is estimated that more than 47,000 cannabis use/possession offences will be detected and reported by the police nationally each year. For those who are charged with possession or use of cannabis, the most likely outcome is a fine. It appears that very few offenders are imprisoned for minor cannabis offences such as use or possession. That this is so, is a source of concern among some commentators and members of the public who criticise lack of rigorous enforcement of the law on the basis that it brings the law into disrepute.

According to the Australian Bureau of Criminal Intelligence, nearly 80 per cent of drug-related arrests in Australia are for cannabis offences. Heroin-related arrests total about 7 per cent of drug-related arrests in Australia, amphetamines account for about 4 per cent of drug-related arrests, cocaine 0.33 per cent, anabolic steroids 0.07 per cent and other drugs account for about 8 per cent of drug-related arrests.(45)

Illicit drug users are not only drawn into the criminal justice system because drug use per se is illegal. They may commit property offences to finance illicit drug use. However, the relationship between crime and illicit drug use is not a simple one. Criminological research indicates that illicit drug use itself is not necessarily the trigger for a person to commit crimes: drug users may have committed offences before they began using illicit drugs. However, it does seem likely that once a person becomes an illicit drug user he or she may commit offences more regularly in order to pay for their 'drug habit.' Other data show that in addition to dealing in drugs, the major sources of income for heroin users include property crime, prostitution, shoplifting, fraud and armed robbery.(46)

It is generally accepted that few illicit drugs cause drug users to behave violently. As the National Committee on Violence commented: 'The association which is observed between alcohol and violent behaviour is rarely seen in the case of the most commonly abused illicit drugs'.(47) One class of drugs that is generally regarded as an exception to this observation is amphetamines.

The profit to be made from dealing in illicit drugs has the potential to produce corruption in law enforcement agencies. This potential has been remarked on in the Fitzgerald Report,(48) by the Parliamentary Joint Committee on the National Crime Authority and by NSW Royal Commissioner James Wood. Most recently, Royal Commissioner Wood stated that drug trafficking was '...destroying police on a State and Federal level, and there is absolutely no reason to think it stops at New South Wales boundaries.'(49)

Finally, illicit drugs are a problem within Australia's prison system. This is so for at least two reasons. Some offenders enter prison with an existing drug habit. Others acquire a habit during their incarceration because of the availability of drugs in gaol and the boredom and stresses of prison life. Where their drug use involves injecting, the likelihood is that injecting equipment will be shared and either not cleaned effectively or at all, with the attendant risk of disease transmission both inside the prison system and outside once the offender is released. A review of harm reduction strategies put it this way:

Attitudes to Illicit Drug Laws in Australia

Australian attitudes to the legal status of cannabis have been surveyed since the 1960s-with results varying according to the survey and the questions asked of respondents. It has been estimated that in 1970 about 9 per cent of the population supported legalisation of cannabis use. According to one study published in 1993,(51) about 1 in 4 Australians supported legalising cannabis but some 65 per cent of the community supported an increase in penalties for sale or supply of the drug. The respondents in this survey expressed little support for the legalisation of other illicit drugs such as cocaine, heroin or amphetamines.

In another study conducted in December 1993, between 52 and 55 per cent of those sampled believed that personal use of cannabis, or possession for personal use, should be legal and some 75 per cent of those surveyed felt that personal use of cannabis or possession for personal use should not attract criminal penalties.(52)

The 1993 National Drug Strategy Household Survey(53) found that 8 per cent of those surveyed supported the legalisation of personal use of heroin, 87 per cent opposed it and 6 per cent were undecided. In the same survey, 87 per cent of respondees supported increased penalties for the sale or supply of heroin, 8 per cent opposed this and 4 per cent were undecided. In the case of personal use of amphetamines, 87 per cent opposed legalisation and, in the case of personal use of cocaine, 89 per cent opposed legalisation. This survey also found that about one quarter of those sampled supported legalisation of the personal use of cannabis.

The 1995 Household Survey revealed that the public continues to differentiate between cannabis and drugs such as heroin, amphetamines and cocaine when asked for their response to the idea that personal use of illicit drugs should be legalised. It also appears that while support for legalisation of personal use of cannabis has increased slightly (about one-third of respondents supported legalisation), opposition to the legalisation of personal use of other illicit drugs has become more marked since the 1993 Household Survey. Support for increased penalties for the sale and supply of illicit drugs other than cannabis continues to be a feature of public opinion.(54)

The 1993 National Drug Strategy Household Survey also sought responses about drug policy options. Those taking part in the survey were asked how they would allocate funds to drug education, treatment or law enforcement if they had $100 to spend. For the illicit drugs, the average amount allocated for amphetamine/cocaine/heroin use was $45.70 for education, $26.50 for treatment and $27.80 for law enforcement. For cannabis, the amounts were $50.50 for education, $21.50 for treatment and $27.80 for law enforcement.

The 1995 Household Survey also collected public opinion data on how governments should spend their money on illicit drug programs in order to reduce illicit drug use. Respondents thought that, for every $100 spent on combating cannabis use, $45.80 should be spent on education, $23.90 on treatment and $30.00 on law enforcement. For heroin and cocaine the amounts were $35.90 for education, $23.70 for treatment and $40.10 for law enforcement. The Survey report concludes that 'A shift from education towards law enforcement occurs for amphetamines and heroin/cocaine, with the allocation to law enforcement exceeding that to education for heroin/cocaine.'(55)

Australian Illicit Drug Laws

Early Drug Laws in Australia

In 19th century Australia a wide range of drugs, including opiates, was available to the public from doctors, pharmacists, homoeopaths, grocers and sellers of proprietary medicines.(56) The medical profession had not yet come to dominate the provision of health services; self-treatment was common and dependence on opium or cocaine was generally therapeutically-induced.(57) It has been suggested that the profile of drug dependence in Australia at the turn of the century was similar to that of other nations, with the typical dependent user being a middle-class, middle-aged woman or health professional. This 'user' profile remained largely unchanged until the 1960s.

Early regulation of drugs occurred by way of poisons laws which imposed requirements on the sale and labelling of certain drugs. It appears that these laws were a response to the use of drugs such as arsenic in poisonings, suicides and homicides.(58) They did not affect drug availability. According to one commentator, Australia had the highest rate of consumption of proprietary medicines per capita in the world at this time.(59)

In the early 20th century a Royal Commission was established by the Commonwealth Government to inquire into Secret Drugs, Cures and Foods.(60) Ingredients then used in proprietary medicines included opium and morphine in Bonnington's Irish Moss; morphine in Cherry Pectoral, Kay's Essence of Linseed and Winslow's Soothing Syrup; and opium in Perry Davis' Painkiller, Atkinson's Royal Infant Preservative and Ayer's Sarsparilla Mixture.

The Royal Commission criticised the lack of controls on the composition and availability of proprietary medicines, advertising claims, the use of preparations containing cocaine and opiates to pacify infants and treat alcoholism, and their free availability to adolescents and adults alike. Royal Commissioner Octavius Beale said:

Although white Australians were substantial consumers of cocaine, opiates and other drugs, Australia's earliest laws prohibiting and penalising the non-medical consumption of drugs targeted smokeable opium-a substance used primarily in the Chinese community. These early illicit drug laws had their origins in anti-Chinese prejudice and the temperance movement. They also heralded the emergence of the medical professional as a powerful pressure group, the decline of the proprietary medicine industry and a movement away from laissez-faire government to increased regulation of citizens.(62)

Queensland proscribed the sale of smokeable opium to Aboriginal people under the Sale and Use of Poisons Act 1891. In 1895, South Australia prohibited all opium smoking. New South Wales, Queensland and Victoria followed suit.(63) In general, these laws banned opium smoking and the sale, trafficking, manufacture and possession of opium suitable for smoking.

With the Federation of the Australian colonies in 1901, the Commonwealth was empowered to deal with imports and exports and in 1905 banned the importation of opium suitable for smoking. In 1910, the Commonwealth made it an offence to be in possession of a prohibited import such as opium without reasonable excuse. The burden of proving 'reasonable' excuse was placed on the defendant.

International Influences

International influences, especially the emergence of international conventions dealing with illicit drugs, played a major part in the development of illicit drugs laws and policies in Australia. They continue to be important, with proposals for drug law reform being assessed in terms of international treaty obligations.(64)

The use of and trade in cannabis and opium were, for many years, common in the colonies of the Great Powers and a source of income for countries such as Great Britain. However, in the early decades of the 20th century, the United States emerged as the leading exponent of a prohibitionist approach to the non-medical use of drugs:

In 1909 a meeting on the opium trade, spurred by the existence of an opium trade between Great Britain and China, was held in Shanghai and attended by 13 nations. This meeting did not produce an international treaty but laid the groundwork for the 1912 Hague Conference which was attended by 42 nations. The Hague Conference produced the Hague Convention for the Suppression of Opium and Other Drugs which exhorted its signatories to 'confine to medical and legitimate purposes the manufacture, sale and use of opium, heroin, morphine and cocaine'.(66) The United States was unsuccessful in its attempts to have cannabis included in the 1912 Convention.

The 1925 Geneva Convention on Opium and Other Drugs restricted to medical and scientific purposes the manufacture, importation, sale, distribution, exportation and use of cannabis, as well as medicinal opium, cocaine, morphine and heroin. Importantly, States Parties were required to enact domestic laws to reflect these requirements. The Geneva Convention also established the Permanent Central Opium Board (PCOB) to collect statistics on narcotics use from and to provide information on the import requirements of States Parties. In 1931, the Narcotics Limitation Convention targeted the manufacture of narcotics and required States Parties to participate in an enforceable scheme whereby advance estimates of requirements for narcotic drugs had to be notified by States Parties to the PCOB. States Parties could only import and export narcotics in conformity with those advance estimates.

The Commonwealth responded to international pressures as early as 1914 when it restricted the importation of opium, morphine, heroin and cocaine to medicinal purposes and required importers to obtain a licence. It also applied pressure on the States to conform with international drug treaties.

Regulation of the use, sale, possession or manufacture of previously uncontrolled drugs such as morphine, heroin, cocaine and medicinal opium was introduced at State level between 1913 and about 1930. The possession of these drugs became legal only if obtained on a medical prescription or if the possessor was a specially authorised person such as a doctor or chemist. A system of licences, record keeping requirements and authorisations was established and penalties were introduced for unauthorised possession.

There was some medicinal use of cannabis in Australia in the 19th century and cannabis cigarettes were available into the 20th century. These things apart, cannabis was little used until the 1960s-which may account for the fact that in Australia the regulation of cannabis was slower to materialise than the regulation of morphine, heroin, cocaine and opium. The Commonwealth prohibited the importation of cannabis in 1926. The first penal controls in the States on unauthorised cannabis use were introduced in Victoria with the Poisons Act 1927. Other States followed: South Australia in 1934,(67) New South Wales in 1935,(68) Queensland in 1937,(69) Western Australia in 1950(70) and Tasmania in 1959.(71)

The medical use of heroin was phased out in Australia as the 20th century progressed, in response to international conventions and pressure particularly from the United States. In 1949, the PCOB criticised increased heroin use in Finland, Italy, Sweden, New Zealand and Australia. At the time, heroin was used in Australia in cough mixtures and for palliation in childbirth and terminal cancer. The issue was raised again by the PCOB and the United Nations in the early 1950s. In 1953 the Commonwealth Government introduced an absolute prohibition on the importation of heroin and urged the States to prohibit its manufacture. This they did-despite opposition from the medical profession.(72)

The 1960s and 1970s

Recreational and dependent use of illicit drugs grew in the 1960s and 1970s in Australia and other Western nations. Internationally, there was renewed interest in illicit drug treaties. Domestically, penalties for illicit drug use were increased. However, during the 1970s, legislators and policy makers turned their attention to how best to respond to the drug problem and began to ask whether the criminal law was the most appropriate response to personal use and cultivation of cannabis, spawning a number of State and Federal inquiries. In the mid to late 1970s, the first reforms of cannabis laws occurred in the ACT and the Northern Territory.

Until the 1960s, drug dependence was not viewed as a major social problem in Australia. Dependent users whose addiction was therapeutically induced were maintained on heroin, pethidine, morphine and opium. However, in the 1960s and 1970s there was increased and visible use of drugs like cannabis, heroin, and LSD. The use of illicit drugs by the youth of Australia and other Western nations provoked fears of social unrest and moral decay. In addition, there was disquiet about the costs-societal and personal-which stemmed from the impact of criminal laws on drug users.(73)

From the 1960s, most Australian States gradually removed controls on the non-medical use of drugs from poisons legislation to statutes with a criminal justice orientation. Penalties were increased, with the heaviest penalties prescribed for drug traffickers. New drugs were added to prohibited drugs statutes-for example, new offences were created of being in possession of, manufacturing, selling, dealing or trafficking in hallucinogens, and new powers were given to law enforcement officials.

The United Nations Single Convention on Narcotic Drugs 1961 consolidated a number of earlier narcotic drugs treaties. It required the parties 'to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of [narcotic] drugs'.(74) It was ratified by Australia in 1967. The Commonwealth then enacted the Narcotic Drugs Act 1967 which establishes a system of licensing and permits for the manufacture and distribution of drugs covered by the Single Convention in order to monitor domestic drug movements. These licences and permits are additional to any required under State law.

The Commonwealth also revised offences and penalties relating to narcotic drugs under the Customs Act 1901. In 1967, the penalty for the unlawful importation of narcotics was increased from a maximum of $1,000 or two years imprisonment to $4,000 or 10 years imprisonment. As well, a new offence of being in possession of a narcotic without reasonable excuse on a ship or plane was created, with the onus of proof being reversed and placed on the defendant. Other offences introduced were importing or attempting to import narcotics or being in possession of unlawfully imported narcotics.

The Psychotropic Substances Act 1976 (Cwlth) was enacted in response to the United Nations Convention on Psychotropic Substances 1971 and provides for controls over certain psychotropic substances entering Australian ports or airports in the course of consignment from one country outside Australia to another country outside Australia.(75) In 1977, section 229A was added to the Customs Act 1901 (Cwlth), providing for forfeiture of the proceeds of drug trafficking. In 1979, the penalties for narcotic drugs offences were again amended in the Customs Act. For example, the penalty for a Customs Act offence involving a commercial quantity of any narcotic good (including cannabis) was increased to life imprisonment.(76) In addition, amendments to the Act inserted provisions for the recovery of pecuniary penalties for dealings in narcotic goods. These amendments enabled the Federal Court in civil proceedings to order that a person pay a pecuniary penalty equivalent to the benefit that person received from illegal drug trafficking and to enable that person's assets to be frozen during those proceedings so that they could not be disposed of.(77)

There were similar developments at State level: in general, penalties were increased with differences in penalties between 'users' and 'traffickers.' For example, Victoria amended its Poisons Act in 1976 to increase the maximum penalty for selling or trafficking in narcotics or cannabis resin to $100,000 or 15 years imprisonment. However, where cannabis below a certain strength was involved the maximum penalty was $4,000 or 10 years imprisonment. Simple possession of cannabis, however, continued to attract a fine of $500 or one year in jail.(78)

Increases in the use of illicit drugs prompted a number of Commonwealth and State inquiries: in particular by the Senate Select Committee on Drug Trafficking and Drug Abuse,(79) the Senate Standing Committee on Social Welfare,(80) the New South Wales Joint Parliamentary Committee upon Drugs,(81) the Australian Royal Commission of Inquiry into Drugs,(82) and the South Australian Royal Commission into the Non-Medical Use of Drugs.(83)

With the exception of the Australian Royal Commission of Inquiry into Drugs, the conclusions in relation to cannabis reached by these inquiries were similar. In general, they distinguished between the harm caused by cannabis and harm resulting from the use of narcotics such as heroin and supported the decriminalisation of personal use of cannabis.

The Australian Royal Commission of Inquiry into Drugs recommended against decriminalisation. It concluded that such a step would be contrary to the Single Convention on Narcotic Drugs and lead to calls for decriminalisation of other illicit drugs. It recommended that consideration of decriminalisation of cannabis use be delayed for ten years during which time information on the drug should be collected and analysed.

Lastly, some reform of personal cannabis use offences was undertaken. For example, in 1975 amendments to the ACT's Public Health (Prohibited Drugs) Ordinance reduced the maximum penalty for possession of less than 25 grams of cannabis to $100. In the Northern Territory, the Prohibited Drugs Ordinance 1977 set the maximum penalty for a first offence of cannabis use or possession at $500.

The 1980s

The 1980s was a period of some reform of drug laws in Australia and the establishment of the National Campaign Against Drug Abuse (NCADA). With the emergence of the HIV/AIDS epidemic a greater emphasis was gradually placed on harm reduction rather than on a strictly prohibitionist approach to the non-medical use of drugs. However, distinctions continued to be made not only between 'soft' and 'hard' drugs but also between personal use and trafficking in drugs, with the Commonwealth and States increasing penalties for trafficking in illicit drugs, including cannabis.

The efficacy of prohibition to combat the drug problem continued to be questioned in some quarters. The major inquiry on drug-related issues held during the 1980s was conducted by the Parliamentary Joint Committee on the National Crime Authority, which published Drugs, Crime and Society in 1989. The report stated:

However, international treaties continued to emphasise prohibition and law enforcement. The United Nations Convention Against Illicit Trafficking in Narcotics and Psychotropic Substances 1988 is designed to suppress organised commercial trafficking in narcotics and psychotropic substances at an international level through the co-operative use of the criminal law-including search, seizure and extradition.

NCADA emerged from the Special Premiers' Conference on Drugs held in April 1985. The Conference developed a national strategy to reduce the harm caused by drug abuse. NCADA's direction being determined by the Ministerial Council on Drug Strategy-a body comprising Commonwealth, State and Territory Ministers.

In 1986, the South Australian Parliament amended the Controlled Substances Act 1984 to decriminalise the cultivation and use of cannabis in small quantities. An expiation notice scheme was established for adult offenders. If the fine payable under the expiation notice is paid then no conviction is recorded.(85) Payment is not regarded as an admission of guilt. Juveniles who are found possessing, using or cultivating small quantities of cannabis are dealt with in the Children's Court.

Law reform in relation to personal use and cultivation of cannabis was largely confined to South Australia in this period. New drug laws were introduced in Victoria, Queensland and New South Wales during the 1980s.(86) In all these jurisdictions, simple possession or cultivation of cannabis remained a criminal offence potentially attracting heavy penalties, although in some cases these were reduced from the penalty levels of earlier legislation. Possession of drugs such as heroin, or trafficking in any proscribed substance, carried even more severe sanctions. State legislation also targeted drug trafficking in other ways: for example, through forfeiture provisions, deeming provisions(87) and, in some cases, provisions relating to the use of listening devices, body searches and the issuing of search warrants.

Under the Drug Misuse and Trafficking Act 1985 (NSW), the penalty for commercial trafficking in cannabis was set at $500,000 and/or 20 years imprisonment while the penalty for commercial trafficking in other illicit drugs was life imprisonment. Under the Drugs Misuse Act 1986 (Qld), possession of heroin or cocaine carried a maximum penalty of life imprisonment or a fine of $500,000, or both. In South Australia, when the Controlled Substances Act 1984 was amended in 1986 to provide for expiation notices, the penalties for manufacturing, selling or supplying proscribed drugs, including cannabis, were substantially increased.

The 1990s and Beyond

The 1990s has witnessed some further reform of cannabis laws, reforms to drug paraphernalia laws(88) and discussion of alternative approaches to 'hard' drugs such as heroin. However, for the most part, Australian drug laws retain their criminal justice orientation; heavy penalties for traffickers in all illicit drugs, heavy penalties for users of 'hard' drugs and (with some variations) heavy penalties for cannabis users.

In 1990, Australia ratified the United Nations Convention on Illicit Trafficking in Narcotics and Psychotropic Substances. The purpose of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cwlth) is to give effect to the terms of the Convention.

By the early 1990s, South Australia, Tasmania, Queensland and New South Wales had repealed laws which made possession of needles and syringes for the purpose of administering a prohibited drug a criminal offence.(89) Reviews of cannabis laws were conducted by the ACT Legislative Assembly Select Committee on HIV, Illegal Drugs and Prostitution and the Queensland Criminal Justice Commission.

In its 1991 report entitled Marijuana and Other Illegal Drugs the ACT Select Committee recommended that:

• possession of up to 25 grams of cannabis no longer be an offence;
• possession of between 25 grams and 100 grams cannabis should attract a fine of $150;
• cultivation of up to five cannabis plants should no longer be an offence; and
• self-administration of cannabis should no longer be an offence.

The ACT Legislative Assembly did not adopt all of the Committee's recommendations. Instead, the Drugs of Dependence (Amendment) Act 1992 created simple cannabis offences for both adults and juveniles. A simple cannabis offence results in an offence notice for $100 which, if paid within 60 days, means that the offence is discharged and no conviction is recorded. Simple cannabis offences are those involving:

• cultivation of five or fewer cannabis plants;
• possession of not more than 25 grams of cannabis.

The Queensland report arose out of the Fitzgerald Royal Commission, which recommended that the Criminal Justice Commission (CJC) undertake a review of the criminal law, including illicit drug laws. The CJC's report on Cannabis and the Law in Queensland was published in 1994 and recommended a number of statutory reforms including:

• the creation of simple offences of cannabis possession and cultivation (a simple offence would be one of possession of 100 grams or less of cannabis or 20 grams or less of cannabis resin, or one where not more than 10 cannabis plants were cultivated. The CJC recommended that the maximum penalty for a simple possession offence should be six months imprisonment or a fine of $1,500 or both, and that the maximum penalty for a simple cultivation offence should be two years imprisonment or a $6,000 fine or both);
• provisions that would enable a court not to record a conviction against an offender and to fine a person guilty of a simple cannabis offence no more than $500 in certain circumstances; and
• abolition of offences of possession or use of cannabis paraphernalia.(90)

While penalties vary between jurisdictions, maximum penalties for simple cannabis offences remain high in some States. In New South Wales, the maximum penalty for possession of cannabis leaf is two years imprisonment or a $2,000 fine, or both.(91) In Western Australia, under the Misuse of Drugs Act 1981, the lowest range of penalties for simple drug offences (involving being at premises where drugs are being smoked, possessing or using prohibited drugs or possessing or cultivating prohibited plants) is a maximum fine of $2,000 or imprisonment for 2 years or both.(92) In Queensland, the maximum penalty for possession of less than 500 grams of cannabis is 15 years imprisonment and/or a $300,000 fine if dealt with on indictment, or 2 years imprisonment and/or a $6,000 fine if dealt with summarily.(93) In Tasmania, the possession of cannabis attracts a maximum penalty of $5,000 or 2 years imprisonment or both(94) and cannabis law reform such as has occurred in South Australia, the ACT or the Northern Territory is probably unlikely. As the Australian Bureau of Criminal Intelligence remarked:

National Task Force on Cannabis

In April 1992, the National Drug Strategy Committee(96) convened a National Task Force on Cannabis to produce papers summarising the current state of knowledge about the drug. 'While the Task Force was not given the role of developing a national policy on cannabis, it was thought that the review papers prepared for the Task Force could contribute to the development of such a policy, by providing a sound scientific knowledge base.'(97)

The Task Force commissioned papers on the health and psychological effects of cannabis use, legislative options for cannabis use, cannabis consumption patterns and public opinion. Following consideration of these reports, the Task Force produced a number of recommendations. In particular, it recommended that the possession, unsanctioned cultivation, sale and non-therapeutic use of cannabis in any quantity should remain illegal, but that 'jurisdictions consider discontinuing the application of criminal penalties for the simple personal use or possession of cannabis, without compromising activities aimed at deterring cannabis use.'(98) The Task Force also recommended that an analysis be conducted of the cannabis notice schemes in operation in South Australia and the Australian Capital Territory.

Feasibility Research into the Controlled Availability of Heroin

Heroin has also come under the spotlight with the presentation of two reports from Feasibility Research into the Controlled Availability of Opioids conducted by the National Centre for Epidemiology and Population Health and the Australian Institute of Criminology. An 'in principle' feasibility study of the provision of heroin to dependent users was published in 1991. It recommended that the study proceed to Stage 2, an examination of the logistical feasibility of such a trial. The Stage 2 report, presented to the ACT Chief Minister in 1995, recommended three pilot studies to assess the usefulness of heroin as a maintenance treatment for dependent heroin users. Progression to each pilot would depend on the success of the previous pilot study. It was recommended that:

• the first pilot should be conducted over a six month period and involve 40 heroin dependent users resident in the ACT who have had experience in methadone treatment programs;
• a second pilot should be conducted over a six month period and involve 250 dependent heroin users resident in the ACT who have had experience with methadone treatment;
• a third pilot study should be conducted over a 2 year period and involve 1,000 dependent heroin users in three Australian cities.

Following the presentation of the report, the ACT Chief Minister commissioned a task force headed by former New South Wales coroner, Kevin Waller, to examine community attitudes to a heroin trial and the conduct of a trial, and to recommend whether the ACT Government should proceed to the first pilot study. In January 1996, Mr Waller's report was published. The Task Force recommended that:

• the ACT Government should proceed to a clinical trial to test the efficacy of heroin prescription as an additional maintenance treatment option; and
• a Steering Committee should be established to oversee the preparation, operation and evaluation of Pilot 1.(99)

In January 1996, the then Minister for Justice, Duncan Kerr, issued a press release on the report of the Heroin Pilot Task Force. He said, 'I am yet to read the full report but I believe the Task Force findings are important. From a law enforcement perspective there are strong reasons for supporting the ACT heroin trial.'(100) Mr Kerr said he would raise the issue at the next meeting of the Ministerial Council on Drug Strategy.

As a result of the Federal election on 2 March 1996, there was a change of Government in Canberra. On 9 April 1996, the Commonwealth Minister for Health, Michael Wooldridge, was reported as saying that he was not optimistic about the prospects for the heroin trial.(101) A meeting of the Ministerial Council on Drug Strategy considered but did not endorse the heroin trial proposal in mid-1996. However, it decided that further consideration be given a number of matters including the national implications of a trial. A sub-committee of the National Drug Strategy Committee is considering these matters. It is likely that a report will be made to the Ministerial Council on Drug Strategy in July 1997.

South Australian Select Committee on the Control and Illegal Use of Drugs of Dependence

The South Australian Legislative Council established a Select Committee to report on drugs of dependence in 1991. Among the Committee's terms of reference were the extent and nature of illicit drug use, the effectiveness and cost to the community of drug trafficking laws, and the impact of criminal activity associated with substance abuse and drug trafficking.

Among the recommendations made in the Committee's 1995 report were that:

• where a person does not pay a cannabis expiation notice, no criminal conviction should be recorded;
• cannabis paraphernalia laws should be repealed;
• South Australia should enact laws to regulate the cultivation and sale of cannabis, in order to combat black market and criminal activity associated with the distribution and sale of cannabis;(102)
• the Commonwealth and State Governments should support the ACT's proposed heroin trial;
• harm reduction approaches, including the provision of needle exchange programs and methadone treatment, should be introduced in South Australian prisons;
• the South Australian Police Statistical Services Unit should collect data relating to the cost of police drug detection and prevention activities and the level of crime related to illicit drugs.(103)

It must be added that not all of the Committee's recommendations were unanimous. In particular, dissenting statements were made in relation to recommendations about the cannabis expiation notice scheme, cannabis paraphernalia laws, and a regulated availability model for cannabis in South Australia.

Western Australian Task Force on Drug Abuse

In 1995 the Western Australian Government's Task Force on Drug Abuse published its report Protecting the Community. In informing itself, the Task Force held 16 public hearings, established a telephone hotline and invited written submissions. In addition, it conducted community consultations with individuals and groups having particular perspectives on drug abuse-including families who had experienced drug abuse, high school students, prisoners and young drug users receiving treatment. It collected data on expenditure from government and non-government agencies and specialist research organisations, consulted with government and non-government agencies, conducted literature reviews and visited other States and Territories for meetings and briefings.(104)

The Task Force's report is wide-ranging and includes an examination of illicit drugs, legal drugs, pharmaceutical products, solvents and performance enhancing drugs. It concluded that there should be a ten-point program to fight drug abuse in Western Australia and that this framework should encompass policy, law enforcement, services,(105) education,(106) community participation,(107) alcohol abuse reduction programs, specific issue initiatives, information and research, co-ordination and structure, and implementation strategies.(108) In relation to law enforcement the report concluded, amongst other things, that:

Law enforcement should be underpinned by clear and unequivocal opposition to all forms of illicit drug use.

Following consideration of the evidence, there should be no legalisation or decriminalisation of cannabis use or other currently illicit drugs.

Increased powers should be provided to bring the Western Australian police force into line with commonly accepted practice in other Australian States, namely:

• telephone interception;
• listening devices;
• power to supply precursor chemicals and prohibited drugs;
• capacity for disposal and destruction of prohibited drugs;
• special penalties for possession of firearms while involved in drug trafficking; and
• support for resourcing of major drug investigations.(109)

Report of the Victorian Premier's Drug Advisory Council

In December 1995 the Victorian Premier, Jeff Kennett, established the Premier's Drug Advisory Council headed by Professor David Pennington.(110) The Council inquired into illicit drugs and how to tackle the illicit drug trade.

The motivation for establishing the Council appears to have been the number of heroin-related deaths in Victoria during 1995 and reported increases in heroin trafficking in the State. The Victorian Coroner reportedly attributed 140 deaths in the State in 1995 to heroin-related causes, compared with 84 in 1994 and 59 in 1993.(111) Other deaths, said to be associated with an influx of high-grade heroin into Australia, were reported in other jurisdictions such as the ACT.(112)

The Council's report was published on 10 April 1996. Its recommendations were unanimous and it took the view that: 'we should [not] lessen efforts to control trafficking, but rather that we should look afresh at strategies that might curb demand and reduce the harm caused in society by the use of illicit drugs.'(113)

It is not possible to detail all the Council's many recommendations. It proposed the implementation of an integrated information and education strategy dealing with both licit and illicit drugs, and that treatment and support services be expanded, especially for young people and for adult offenders. It supported severe penalties for drug trafficking. It also recommended that:

• use and possession of small amounts of marijuana (25 grams or less) should no longer be an offence;
• cultivation of up to five cannabis plants per household for personal use should no longer be an offence;
• sale of marijuana should remain an offence;
• recorded convictions for the possession and use of small amounts of marijuana should be expunged from a person's criminal record;
• use and possession of heroin, cocaine, amphetamines, ecstasy and cannabis products other than marijuana should remain a an offence. However, the penalty for a first offence should be a caution and referral to a treatment service and the preferred penalty for a second offence should be an adjourned bond; and
• penalties for bond breaches or subsequent drug use offences should include the use of escalating penalties. However, the Council recommended that imprisonment should be used as a 'last resort penalty'.(114)

In the context of these proposals for legislative reform, the Council stressed that amendments must take account of Australia's international treaty obligations and recommended that legal advice should be obtained by the Victorian Government on the subject of legislative reform.

The Council also recommended that the Victorian Government should 'encourage the Commonwealth to support the Australian Capital Territory heroin pilot study and, if appropriate, the subsequent clinical trial of heroin prescribing.'(115)

On 8 January 1997, the Victorian Government announced its response to the Pennington inquiry. The response includes legislating for heavier sentences for drug traffickers, manufacturers and importers and the option of lighter sentences for drug users in certain circumstances. Legislative amendments are expected to be implemented by mid-1997. The Government is also proposing to finance a range of educational programs aimed at providing information on the effects of drug use. At the same time, the Government rejected a clinical heroin trial in Victoria. Instead, it has reportedly earmarked about $2 million for a feasibility study of alternative drug therapies. It is planned that about 200 dependent heroin users will participate in a study that assesses the usefulness of slow release oral morphine, L-alpha acetyl methadol (LAAM), buprenorphine and naltrexone.(116)

Northern Territory Misuse of Drugs Amendment Act 1996

On 28 February 1996, the Northern Territory Legislative Assembly passed the Misuse of Drugs Amendment Act 1996. The Act commenced on 1 July 1996. The amendment provides police with the discretion to issue an infringement notice to (rather than prosecute) an adult who is in possession of less than 50 grams of cannabis, less than 1 gram of cannabis oil, 10 grams of cannabis resin or cannabis seed or who is cultivating two or fewer cannabis plants. The infringement notice penalty is set at $200. If paid within the set period, the offence is expiated. In his Second Reading Speech on the amendments, the Northern Territory Attorney-General, Steve Hatton, said:

Concluding Remarks

Since the early decades of the 20th century, penalties for users and dealers in illicit drugs have increased, law enforcement strategies have become more sophisticated and the number of mind altering substances caught by illicit drug laws has expanded. Whether these policies have reduced drug use or the amount of drug related harm in Australia continues to be debated.

The consequences of a prohibitionist approach to the non-medical use of drugs have been examined by many writers and in many inquiries. In 1989, the Parliamentary Joint Committee on the National Crime Authority listed the social costs of prohibition as including the direct costs of law enforcement, drug-related crime, the involvement of professional criminals and organised crime, corruption in law enforcement bodies, health costs, the stigmatisation of drug users, the erosion of civil liberties in the name of the war against drugs and the benefits foregone by the community because illicit drugs like heroin and cannabis are not available for medical use.

Those who support drug law reform may argue from these bases that reform will minimise or, in some cases, remove these costs. One way of assessing these claims may be through evaluation of drug law reforms and controlled treatment trials. An evaluation of the cannabis expiation notice scheme in South Australia undertaken by the South Australian Office of Crime Statistics was published in 1989. The authors concluded that the expiation notice scheme in South Australia was not accompanied, at least until 1988, by changes in 'the rate of detection of simple cannabis offences or in the type of people detected possessing or using cannabis.'(118) The authors found that the expiation notice system had not had a 'net widening' effect, as feared by some of its critics. However, more recent research into the South Australian scheme suggests that:

• although cannabis use rates have increased only slightly in South Australia, there has been a substantial increase in the number of cannabis offences detected by the South Australian police since the expiation notice scheme was introduced;
• a proportion of minor cannabis offences involve offenders under the age of 18 years or are minor cannabis offences which occur in public, and so cannot be dealt with under the expiation scheme in South Australia;
• there has been a decline in the number of minor cannabis offences which are expiated-in other words, offenders fail to pay the fine, are prosecuted and may be convicted of a criminal offence.

It may be that the social and individual harms associated with criminal conviction have not been overcome by the expiation notice system in South Australia and that the scheme may impact most heavily on those with low incomes and the unemployed. If this is the case, then further changes to the law may be indicated.

Further evaluation of the South Australian expiation notice scheme is under way, including an economic analysis of the scheme and studies of community attitudes and the attitudes of the judiciary and police. Importantly, too, this research will compare the South Australian (decriminalised) and Western Australian (prohibitionist) approaches to simple cannabis offences. Such research has great potential to inform Australian legislators, policy makers and the community. Overseas, trials of controlled provision of heroin to dependent users have been undertaken in Switzerland,(119) with a final report on the Swiss trial expected in July 1997. While the ACT's proposed heroin trial awaits further consideration by the Ministerial Council on Drug Strategy, the Victorian Government plans to fund research into other treatment strategies for dependent heroin users.

If drug law reform proposals are to be implemented in Australia, then their efficacy should be rigorously and independently assessed to determine if they are working and whether and how they should be changed. Pilot programs such as that proposed by the Victorian Government may also produce useful results for the development of law and policy.

It is generally recognised that any approach to illicit and legal drugs should be multi-faceted. There is, therefore, a role for research and evaluation to help show what works not only in terms of drug laws but in other approaches to illicit drugs, such as education and treatment. While many drug law reformers are critical about the prohibitionist approach to illicit drugs, it is imperative that research and evaluation also inform the development and implementation of law enforcement strategies. As two Australian researchers have recently argued:

...drug law enforcement in some shape or another is here to stay, whatever drug law reforms take place in the future, and it behoves us to render such enforcement as rational as possible.(120)

Glossary

Amphetamines. Amphetamines are a class of drugs that stimulate the central nervous system. Amphetamines are also called 'speed.'

Depressants. Depressants are drugs that sedate or lower nervous or functional activity in the body.

Hallucinogens. These are drugs that alter sensory perception and cause hallucinations. Hallucinogens include LSD.

MDA. 3,4-methylenedioxyamphetamine-a common variety of amphetamine.

MDEA. 3,4-methylenedioxyethylamphetamine. MDEA is also known as 'Eve' and is a variety of amphetamine.

MDMA. 3,4-methylenedioxymethamphetamine. Also known as ecstasy. A derivative of amphetamine.

Narcolepsy. Sufferers of narcolepsy experience periodic attacks of an uncontrollable urge to sleep during normal waking hours.

Narcotics. A narcotic is a drug which suppresses the central nervous system and relieves pain. Narcotics include opium, morphine, codeine and heroin.

PMA. Paramethoxyamphetamine. This is also a variety of amphetamine.

Psychoactive drugs. These are drugs which alter mood, cognition or behaviour.

Synaesthesia. Synaesthesia is a sensation produced in one physical sense when a stimulus is applied to another physical sense, as when the hearing of a certain sound induces the visualisation of a certain colour.

Stimulants. Stimulants are drugs that speed up the functioning of the central nervous system. Stimulants include caffeine, nicotine, amphetamines and cocaine.

THC. THC or delta-9-tetrahydrocannabinol is the psychoactive ingredient in cannabis.

Endnotes

1. This paper uses the terms licit and illicit as legal categorisations and does not draw conclusions about the relative harms, dangerousness or usefulness of licit or illicit drugs.
2. Manderson, D. 'Trends and influences in the history of Australian drug legislation', The Journal of Drug Issues, 22(3), Summer, 1992: 507-20.
3. National Drug Strategy, Household Survey. Survey Report 1995, AGPS, Canberra, 1996: 7.
4. The Ministerial Council on Drug Strategy is responsible for overseeing the National Drug Strategy. Its members are Commonwealth, State and Territory Ministers responsible for health and the police. The Commonwealth is represented by the Attorney-General and Minister for Justice, and by the Minister for Health and Family Services.
5. Examples of relevant Commonwealth laws include the Customs Act 1901, the Proceeds of Crime Act 1987, the Mutual Assistance in Criminal Matters Act 1987, the Narcotic Drugs Act 1967, and the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990.
6. Quoted in S. Henry-Edwards & R. Pols, Responses to Drug Problems in Australia (National Campaign Against Drug Abuse Monograph Series No. 16), AGPS, Canberra, 1991: 2.
7. Note that the increase has been from 5 per cent in 1985 to 15 per cent in 1993.
8. I. McAllister, Knowledge, Attitudes and Policy Preferences Concerning Drugs, AGPS, Canberra, 1993; National Drug Strategy 1995, op.cit.
9. D. Redwood, Anabolic Steroids: A Growing Community Concern (Current Issues Brief No. 45 1994-95), Canberra, Parliamentary Research Service, 1995.
10. J. Jiggens, 'A potted history' in The Good Weekend Magazine, 2 March 1996.
11. Australian Bureau of Criminal Intelligence, Australian Illicit Drug Report 1995-96, Canberra, December 1996.
12. Australian Bureau of Criminal Intelligence, Australian Illicit Drug Report 1994, Canberra, April 1995.
13. Trial cultivation has occurred or is planned in South Australia, NSW, Victoria and Tasmania. See ABCI 1995-96, op.cit.
14. W. Hall, N. Solowij & J. Lemon, The Health and Psychological Consequences of Cannabis Use (National Drug Strategy Monograph Series No. 25), AGPS, Canberra, 1994.
15. Quoted in ABCI 1995-96, op.cit.
16. F. Zackon, 'Heroin: The Street Narcotic', The Encyclopedia of Psychoactive Drugs, Burke Publishing Company Limited, London, 1986: 59.
17. See ABCI 1995-96, op.cit.
18. Premier's Drug Advisory Council, Drugs and Our Community, March 1996.
19. National Committee on Violence, Violence. Directions for Australia, Australian Institute of Criminology, Canberra, 1990.
20. ABCI 1995-96, op.cit.
21. ibid.
22. J.A. Inciardi, The War on Drugs. Heroin, Cocaine, Crime and Public Policy, Mayfield Publishing Company, Palo Alto, 1986: 81.
23. T. Chadwick & J. Jolly, Stimulants: Amphetamine, Ecstasy, Cocaine, Speed, Crack, Caffeine, Release Publications, London, 1990.
24. ABCI 1995-96, op.cit.
25. Australian Bureau of Criminal Intelligence, Australian Illicit Drug Report 1994: 46.
26. ABCI 1995-96, op.cit.: 230.
27. J. Bowman & R. Sanson-Fisher, Public Perceptions of Cannabis Legislation, (National Drug Strategy Monograph Series No. 28), AGPS, Canberra, 1994.
28. N. Donnelly & W. Hall, Patterns of Cannabis Use in Australia (National Drug Strategy Monograph No. 27), AGPS, Canberra, 1994.
29. National Drug Strategy 1995, op.cit.
30. W. Hall & J. Nelson, Public Perceptions of the Health and Psychological Consequences of Cannabis Use (National Drug Strategy Monograph Series No. 29), AGPS, Canberra, 1995.
31. Bowman & Sanson-Fisher, op.cit; National Drug Strategy 1995, op.cit.
32. T. Makkai, Patterns of drug use: Australia and the United States, AGPS, Canberra, 1994. Note that the survey did not distinguish between use of cocaine and crack.
33. National Drug Strategy 1995, op.cit.
34. ibid.
35. Referred to in S. Lenton & A. Tan-Quigley, The fitpack study. a survey of 'hidden' drug injectors with minimal drug treatment experience, NCRPDA, Curtin University of Technology, January 1997.
36. ibid.
37. Department of Human Services and Health, Statistics on drug abuse in Australia 1994, AGPS, Canberra, 1994.
38. W. Hall, 'Drugs, death and human misery: What have we learned during the National Campaign about drug related morbidity and mortality?' Conference Paper.
39. L.G. Sullivan, 'Interpreting our drug statistics: holes in the data on illegal drugs,' Medical Journal of Australia, vol.161, 7 November 1994: 569-70.
40. D.J. Collins, & H.M. Lapsley, Estimating the economic costs of drug abuse in Australia (NCADA Monograph Series No. 15), AGPS, Canberra, 1991.
41. R.E. Marks, 'What price prohibition? An estimate of the costs of Australian drug policy,' Australian Journal of Management, 16(2), December 1991: 187-212.
42. The expression 'illicit drug abuse' is the phrase adopted by the authors of the National Drug Strategy report.
43. D.J. Collins, & H.M. Lapsley, The social costs of drug abuse in Australia in 1988 and 1992 (National Drug Strategy Monograph No. 30), AGPS, Canberra, 1996.
44. D. McDonald & L. Atkinson (eds), Social impacts of the legislative options for cannabis in Australia: Phase 1: Research (Report to the National Drug Strategy Committee), Australian Institute of Criminology, Canberra, April 1995.
45. ABCI 1995-96, op.cit.
46. R. Fox & I. Mathews, Drugs Policy. Fact, Fiction and the Future, Federation Press, Sydney, 1992.
47. National Committee on Violence, op.cit.: 90.
48. T. Fitzgerald, Report of a Commission of Inquiry into Illegal Activities & Associated Police Misconduct, Government Printer, Queensland, 1989.
49. Reported in ABCI 1995-95, op.cit.: 172.
50. D. Hawks, & S. Lenton, 'Harm reduction in Australia: Has it worked? A review,' Drug and Alcohol Review, 14, 1995: 291-304 at 298.
51. I. McAllister, Knowledge, attitudes and policy preferences concerning drugs in Australian society, AGPS, Canberra, 1993.
52. Bowman & Sanson-Fisher, op.cit.
53. National Drug Strategy, 1993 National Drug Household Survey, AGPS, Canberra, 1993.
54. National Drug Strategy 1995, op.cit.
55. ibid.: 49.
56. D. McDonald et al, Legislative options for cannabis in Australia (National Drug Strategy Monograph Series No. 26), AGPS, Canberra, 1994.
57. Manderson, 'Trends and influences in the history of Australian drug legislation,' op.cit.
58. Parliamentary Joint Committee on the National Crime Authority, Drugs, crime and society, AGPS, Canberra, 1989.
59. D. Manderson, From Mr Sin to Mr Big: A history of Australian drug laws, Oxford University Press, Melbourne, 1993.
60. Report of the Royal Commission on Secret Drugs, Cures and Foods, Parliamentary Papers Session 1907-1908.
61. ibid.: 321.
62. Manderson, From Mr Sin to Mr Big, op.cit. T. Carney, 'The history of Australian drug laws: Commercialism to confusion?' Monash University Law Review, vol. 7, June, 1981: 165-204.
63. Opium Act 1895 (SA), Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld), Opium Smoking Prohibition Act 1905 (Vic), Police Offences Amendment Act 1908 (NSW).
64. For example, the Victorian Premier's Drug Advisory Council recommended that expert legal advice should be obtained by the Victorian Government 'to inform its decisions about legislative reform.' Drugs and Our Community, March 1996: 131.
65. Manderson, 'Trends and influences in the history of Australian drug legislation', op.cit.: 512.
66. Quoted in Manderson, From Mr Sin to Mr Big, op.cit.: 63.
67. Dangerous Drugs Act 1934 (SA).
68. Police Offences Amendment (Drugs) Act 1935 (NSW).
69. Health Act 1937 (Qld).
70. By a Proclamation made in 1950 under the Police Offences (Drugs) Act 1928 (WA).
71. Dangerous Drugs Act 1959 (Tas).
72. Stockpiles of heroin in Victoria meant that it continued to be used by the medical profession to treat patients during the 1950s and 1960s.
73. In South Australia, for example, between 1974 and 1977, the number of people charged with drug-related offences increased from 107 to 756 and the number of persons convicted of drug-related offences increased from 94 to 642.
74. Cannabis and cocaine are classified as narcotics under the Single Convention on Narcotic Drugs 1961.
75. Second Reading Speech, Psychotropic Substances Bill 1976, House of Representatives, Parliamentary Debates, 29 April 1976: 1763. Import and export controls on these substances are contained in Commonwealth customs legislation and controls over manufacture, distribution and use are provided for in State and Territory laws.
76. See section 235(2)©. The amounts of narcotic goods involved in commercial and traffickable quantities are set out in Schedule VI of the Customs Act 1901.
77. Division 3, Part XIII.
78. Carney, op.cit.
79. Senate Select Committee on Drug Trafficking and Drug Abuse, Report, Commonwealth Government Printing Office, Canberra, 1971.
80. Senate Standing Committee on Social Welfare, Drug Problems in Australia: An Intoxicated Society?, AGPS, Canberra, 1977.
81. Joint Parliamentary Committee Upon Drugs, Report into Drug Abuses, Sydney, 1978.
82. Australian Royal Commission of Inquiry into Drugs, Report, AGPS, Canberra, 1980.
83. Royal Commission into the Non-Medical Use of Drugs South Australia, Final Report, Adelaide, April 1979.
84. Parliamentary Joint Committee on the National Crime Authority, op.cit.: 92.
85. Fines applicable under the expiation notice scheme are as follows:
    • possession of less than 25 grams of cannabis-$50.00;
    • possession of between 25 grams and less than 100 grams of cannabis-$150.00;
    • possession of less than 5 grams of cannabis resin-$50.00;
    • possession of between 5 grams and less than 20 grams of cannabis resin-$150.00
    • cultivation of 10 or fewer cannabis plants-$150.00.
86. These laws included the Drugs, Poisons and Controlled Substances Act 1981 (Vic), the Drugs Misuse Act 1986 (Qld) and the Drug Misuse and Trafficking Act 1985 (NSW).
87. For example, a person in possession of a traffickable quantity of a prohibited or controlled drug is deemed to be trafficking in that substance unless he or she proves otherwise.
88. Drug paraphernalia includes such things as injecting equipment.
89. In Victoria, Western Australia, the Northern Territory and the ACT possession of needles and syringes does not appear to have been caught by offence provisions prohibiting the possession of needles and syringes for use in the administration of illicit drugs.
90. For example, a bong.
91. Drugs Misuse and Trafficking Act 1985 (NSW), sections 10 & 21.
92. See Western Australian Task Force on Drug Abuse, Report, Chapter 3: Legislative Background.
93. Drugs Misuse Act 1986 (Qld), sections 9 & 54.
94. Poisons Act 1971 (Tas), section 49, as amended by the Penalty Units and Other Penalties Amendment Act 1991 (Tas).
95. ABCI 1995-96, op.cit.: 34.
96. The National Drug Strategy Committee oversees the development of the National Drug Strategy and complementary strategies in all States and Territories.
97. National Drug Strategy, Report of the National Task Force on Cannabis, AGPS, Canberra, 1994: 1.
98. ibid.: xii.
99. Heroin Pilot Task Force, The report of the Heroin Pilot Task Force, January 1996.
100. Minister for Justice (Duncan Kerr), 'Federal Justice Minister welcomes Heroin Task Force report', Press release, 11 January 1996.
101. 'Setback for heroin trial', Canberra Times, 10 April 1996.
102. Sale to minors and public use of cannabis would be banned under this scheme, as would advertising and promotion of cannabis.
103. Parliament of South Australia, Report of the Select Committee on the Control and Illegal Use of Drugs of Dependence, July 1995.
104. Western Australian Task Force on Drug Abuse, Report, Chapter 1.
105. Recommended service initiatives and reforms included devolving the services of the Drug and Alcohol Authority to the private sector, the expansion of family services, youth treatment services and methadone treatment programs, special initiatives directed to intoxicated youth and solvent abusers, and more treatment services for offenders.
106. Recommendations included the introduction of drug education as a compulsory part of the school curriculum; the development of drugs policies by schools, a major public education program on illicit drugs, providing special and general education programs for Aboriginal people, and the development of parent education programs.
107. The report recommended that Regional Drug Coordinating Councils should be established to involve the community in deciding local strategies and initiatives, and proposed the establishment of a Community Leaders Against Drug Abuse Program.
108. The report contains recommendations about simplified structures to coordinate drug issues activities at national, State and regional level; and an implementation process for its recommendations.
109. ibid: 14-15 (Executive Summary), http://www.wa.gov.au/cdco/taskforce/ExecSummary.html
110. Professor Pennington was Vice Chancellor of the University of Melbourne from 1988 to 1995, Chairman of the AIDS Task Force from 1983 to 1987 and Chief Advisor on Health Policy and Programs for the Victorian Health Department from 1986 to 1987.
111. 'Marijuana', Australian News Wire Service, 27 February 1995.
112. 'Victoria faces a worsening drug problem', Canberra Times, 4 December 1995
113. Premier's Drug Advisory Council, op.cit.
114. See recommendations 7.1-7.8.
115. ibid.: 125.
116. 'States new bid to help addicts,' Age, 22 February 1997.
117. Attorney-General (Northern Territory) Second Reading Speech, Misuse of Drugs Amendment Bill 1996, Parliamentary Record, Seventh Assembly, First Session, 29 November 1995: 6147-8.
118. R. Sarre, 'The partial "decriminalisation" of cannabis: the South Australian experience', Current Issues in Criminal Justice, 6(2), November 1994: 196-207 at 207.
119. See A. Uchtenhagen et al, Program for a medical prescription of narcotics. Interim report of the research representatives (2nd edn), Zurich, May 1996.
120. A. Sutton & S. James, 'From evaluation to the future: Australian drug law enforcement,' paper presented to the 7th International Conference on the Reduction of Drug Related Harm, Hobart, 3-7 March 1996.

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