THE AUSTRALIA INSTITUTE Drug Law Reform Beyond Prohibition Andrew Macintosh Discussion Paper Number 83 February 2006 ISSN 1322-5421 ii © The Australia Institute. This work is copyright. It may be reproduced in whole or in part for study or training purposes only with the written permission of the Australia Institute. Such use must not be for the purposes of sale or commercial exploitation. Subject to the Copyright Act 1968, reproduction, storage in a retrieval system or transmission in any form by any means of any part of the work other than for the purposes above is not permitted without written permission. Requests and inquiries should be directed to the Australia Institute. The Australia Institute iii Table of Contents Tables and Figures v Acknowledgements vi Summary vii 1. Introduction 1 2. Definitional and conceptual issues 4 2.1 What is a drug? 4 2.2 Licit and illicit drugs 4 2.3 Classifying psychoactive drugs 4 2.4 Other useful drug terms 5 2.5 What legislative options exist for drugs? 7 2.6 What do the terms ‘decriminalisation’ and ‘legalisation’ mean? 8 2.7 Diversion programs 9 3. A brief history of Australia’s drug laws 13 4. The theory behind Australia’s drug laws 23 4.1 Why have strict drug laws? 23 4.2 Reducing negative externalities and overcoming market failure 23 4.3 Reducing harm to individuals 28 4.4 Promoting and protecting moral values 30 5. Flaws in the strict prohibition approach 33 5.1 The direct costs of prohibition 33 5.2 The indirect costs of prohibition 34 6. Effectiveness of strict drug laws 43 6.1 Has prohibition substantially reduced drug use and harm? 43 6.2 Does prohibition promote drug use? 60 7. The alternatives to the current approach 64 7.1 The causes of drug misuse problems 64 7.2 The legal options 67 7.3 The non-legal options 74 7.4 The balance between legal and non-legal policy mechanisms 84 8. The inequity of current drug laws and drug law enforcement 90 8.1 Inconsistencies 90 8.2 Punishing victims and those with diminished capacity 96 8.3 Who is punished for drug offences? 96 8.4 Consistency with liberal values 97 9. Conclusion 99 References 104 Appendix A Pre-arrest diversion programs for minor cannabis offences committed by adults 128 Appendix B Health effects of licit and illicit drugs 132 Appendix C Illicit drug arrests in Australia, by drug type and consumer/provider status 1996/97 to 2003/04 136 Drug Law Reform iv The Australia Institute v Tables and Figures Table 1 Taxonomy of the costs of prohibition 41 Table 2 Proportion of population (aged 14 years and over) using illicit 44 drugs – lifetime and recent use (2004) Table 3 Proportion of people (aged 14 years and over) using any illicit drug 45 by sex and age group – lifetime and recent use (2004) Table 4 Illicit drug use amongst male (2001) and female (2003/04) 62 prisoners (per cent) – lifetime, recent and current regular use Table 5 Illicit drug use according to language spoken at home, persons 65 aged 14 years and over, 2004 Table 6 Risk and protective factors for drug use 66 Table 7 Annual prevalence of use of selected drugs in the Netherlands as 69 percentage of population aged 15 – 64 (2001), compared to prevalence in other western and central European countries Table 8 Drug and Non-Drug Specific Prevention Programs 75 Table 9 Efficacy of drug education 78 Table 10 Proportion of young people using tobacco and alcohol (2004) 94 Figure 1 Effect of drug laws on the supply and demand for illicit drugs 24 Figure 2 Trends in recent use of cannabis – proportion of population aged 49 14 and over, Australia 1993 to 2004 Figure 3 Trends in recent use of cannabis – proportion of population aged 49 14 and over, South Australia, Western Australia, ACT and Northern Territory 1998 to 2004 Figure 4 Potential Myanmar Heroin Production, in Metric Tons, 1999 - 54 2004 Figure 5 Sentenced prisoners by type of drug offence, Australia – 1986 to 85 2004 Drug Law Reform vi Acknowledgements This paper has benefited greatly from being reviewed by Dr Wayne Hall, Dr Alex Wodak and John Walker. I thank them all for their thoughtful comments and guidance. Notwithstanding their input, the opinions expressed and conclusions drawn remain the responsibility of the author. Thanks are also due to Leigh Thomas for valuable editorial assistance. The Australia Institute vii Summary Harm minimisation has been the stated objective of the National Drug Strategy since 1985. This goal is supposed to ensure that the focus of drug policy is on minimising the damage that drugs have on society rather than simply minimising drug use. Although this objective has received widespread support, the way in which it has been pursued has been highly contentious, particularly since 1997 when the Howard Government launched the National Illicit Drug Strategy, ‘Tough on Drugs’, which saw a renewed emphasis on prohibition and drug law enforcement. A schism emerged between the public position adopted by governments and the policies they pursued. Governments talked tough in public about drug issues and extolled the virtues of prohibition, while tolerating proven and accepted harm reduction initiatives like needle and syringe exchange programs and methadone maintenance treatment. This inconsistent approach has prevented the reform of drug laws and halted the implementation of several innovative harm reduction programs (for example, prescription heroin trials and drug consumption rooms), but it has saved Australia from some of the more extreme consequences of a US-style ‘war on drugs’. It now appears that this compromise is unravelling and that the Howard Government wants to align national drug policy more closely with its ‘tough on drugs’ rhetoric. In 2005 new laws were passed giving the Commonwealth unprecedented powers to intervene in drug issues that have traditionally been the sole domain of the states. This was followed by a concerted media campaign to ‘reveal’ the dangers of cannabis, which was backed up by the announcement that the Prime Minister wanted to end the civil penalty regimes that apply to minor cannabis offences in South Australia, Western Australia, the Northern Territory and the Australian Capital Territory. The shift in emphasis is not confined to the Federal Government. In early February 2006, the Premier of New South Wales, Morris Iemma, took the Prime Minister’s cue and pledged to introduce new ‘hardline’ cannabis laws that would result in up to ten years imprisonment for people found growing as few as five hydroponic cannabis plants. The leader of the opposition in New South Wales, Peter Debnam, has promised to shut down the safe injecting room in Kings Cross if his party is elected to government. Similarly, in South Australia, the Liberal Party has suggested that police be allowed to enter schools with sniffer dogs without obtaining a warrant, while the Tasmanian Liberals are reported to be calling for ‘tougher drug laws’. The evidence indicates that any move away from harm minimisation toward a stricter form of prohibition will worsen the social outcomes from drug policies. Analysis of alternative options suggests that the existing legal and policy framework is already in need of liberal reform. Tightening drug laws and placing even great emphasis on drug law enforcement is likely to undermine some of the gains achieved by harm minimisation strategies and send Australia down a path that history demonstrates can only end in failure. The information that is available proves that prohibition has been an abysmal failure at addressing illicit drug problems. Drug Law Reform viii Costs of prohibition The direct costs of prohibition are immense. In 1998/99, almost $1.5 billion was spent by Australian governments on drug law enforcement; productivity losses associated with drug offences were estimated at an additional $500 million. There is little doubt these costs have grown significantly since then. Possibly of greater concern than the direct costs of prohibition are the indirect effects it has on illicit drug markets and drug use. The evidence indicates that strict drug laws encourage users to take more potent drugs and consume them in unsafe ways. Research has also found that prohibition makes drug users reluctant to seek treatment when problems arise. Further, it often forces young and otherwise law abiding individuals to associate with deviant subcultures, which can lead to increased drug use and crime. Studies have also shown that drug law enforcement causes employment and relationship problems that can aggravate substance misuse disorders. For those drug users who suffer from a mental illness, the costs of prohibition are even more severe. Pressures applied by the criminal justice system can exacerbate mental and substance misuse disorders and create additional barriers to treatment. As the Federal Government has been at pains to emphasise, drug use can cause or exacerbate mental health problems, but harsh drug laws risk making the situation worse. In short, prohibition is the cause of a significant proportion of the health costs associated with illicit drug use and it hinders the achievement of the objective of harm minimisation. Strict drug laws are also responsible for increased violence, corruption and property crime. Countless government inquiries have identified illicit drug markets as a major cause of corruption. So long as drug markets are the exclusive domain of criminals, corruption will remain a prominent feature of many institutions, including domestic police forces. Benefits of prohibition To balance the ledger against the extensive list of drug law-related harms, advocates of prohibition would have to demonstrate that it is substantially better at reducing drug- related harm than the more liberal alternatives.