Prof Dan Howard SC, head of the special inquiry into illicit amphetamine use in New South Wales, has handed down his report to the NSW government following a lengthy commission looking into both the drug “ice” but also other issues such as pill testing and the effectiveness of NSW drug laws.
In his report, Howard has recommended that the government “decriminalization” illicit drug use. Many people might be wondering what on earth that actually means. Terms like decriminalization are bandied around regularly in the media and there’s often confusion as to the jargon that already exists.
Here’s one way to look at it:
Depenalization simply means to take the penalty out of the crime. For example, if you are caught possessing drugs it’s a crime, but you are referred to treatment instead of facing heavy fines or potential jail time.
Landmark NSW inquiry condemns ineffective drug laws and calls for decriminalization
Decriminalization means that possessing drugs for personal use ceases to become a crime altogether but remains a “civil” offence like running a red light or jay-walking – there are still penalties (eg fines) and the other consequences. This system is currently in practice in countries like Portugal where people are instead referred to treatment, if it is appropriate.
Regulation means to fully legalize drugs but to control the supply of drugs either through a government or commercial market. Much of the drug field use regulation instead of legalization because the latter can conjure up images of reckless drug use without limits. However, our current system, which is essentially mainly one of prohibition, offers little in terms of control.
Our system has been shown to spend a lot of money in arresting people, court time and lockup – with little hope of changing behaviors. Prohibition laws themselves clearly do little to stop large chunks of our community from using illicit drugs.
Although depenalization is a small step in the right direction ... it won’t stop young people dying
Why is that? How can we have laws that work and others that don’t? We’ve changed these in the past and changing laws can do a lot to maximize benefit and reduce the costs associated with faulty laws.
I’m often reminded of Don Chipp’s work while he was still a Liberal, creating the R-rated classification in motion picture content rating. Before that restriction, some movies were simply banned. Did it stop people watching them? Of course not. It’s foolish to think we will ever delete a black market altogether, but we can minimize and manage it. The black market in tobacco in Australia is a good example. It exists but it’s small enough for law enforcement to contain, as opposed to the illicit drug market.
Speaking of tobacco – smoking has dropped significantly in Australia. Good regulation means banning advertising, reducing exposure, taxing effectively and running effective health campaigns – all in a strategic fashion. Tobacco regulation highlights the difference between a well-regulated market and one that’s out of control.
A recent report shows that there have been close to 400 MDMA-related deaths in Australia from 2000 to 2018, most of which were people in their early to mid-20s.
Nearly half of these deaths were due to mixed drug consumption and just over half were due to MDMA toxicity. The NSW deputy coroner Harriet Grahame told us in 2019 that pill testing could help to mitigate both of these types of death.
Depenalization is a step; decriminalization is another step. But full regulation of all drugs – that’s when we begin to take control of the situation.
We must look to the horizon and strive towards a healthier society, one that takes control of the drug issue to save as many lives as possible. This can only be done with a fully regulated supply of drugs – all drugs, not just cannabis – where doctors and pharmacists are in control of someone’s dependency, not a dealer.
Our system will and should be unlike countries such as the US where there is sometimes little control over how drugs like cannabis can be marketed and sold.
I have already warned that, as the ACT legalizes the use of cannabis in a week or so, it risks being unprepared and hurting other states’ future attempts to regulate cannabis.