Pearls and Irritations

By the time the ACT Legislative Assembly passed legislation on 20 October 2022 to commence the decriminalisation of personal quantities of all illicit drugs in October 2023, drug law reform was already well on its way around the world.

Portugal began decriminalisation of personal quantities of all illicit drugs in 2001 combined with greatly expanded and improved drug treatment. The result was impressive reductions in crime, drug overdose deaths, HIV infection, and problematic drug use in prison. Since 2019, drug decriminalisation has been the agreed common position of all 31 United Nations organisations responsible for drug policy. In September 2022 speaking to the General Assembly of the United Nations, President Gustavo Petro of Colombia called for the legalisation of cocaine. President Pedro Castillo of Peru has also announced an intention for his country to legalise cocaine use. Already, almost 30 countries around the world have implemented drug decriminalisation in some form or other. In November 2020, 58% of voters in the US state of Oregon supported a Ballot Initiative making the personal non-commercial possession of a controlled substance liable to a fine of no more than $100 and establishing a drug addiction treatment and recovery program funded in part by the state’s cannabis tax revenue and state prison savings. This is now operating.

Seven countries have already started regulating recreational cannabis, including Canada, a G7 country, and 20 of the 50 states of the United States. Germany has recently also started working towards the imminent regulation of recreational cannabis. In his many years in the US Senate, President Biden is said to have written more War on Drugs legislation than any other member of Congress. Yet he recently announced the expungement of all US Federal cannabis possession convictions. This will have limited impact but is symbolically important. Biden’s recent call for rescheduling cannabis is likely to have quite a significant impact on future US drug policy. US Senate Majority Leader Chuck Schumer said recently that he is close to closing a deal with some Republicans on legislative cannabis reforms including banking.

So by 2022, the international drug law reform train has well and truly left the station. The growing consensus is that drug prohibition has been an expensive way of achieving consistently terrible outcomes. Political support for drug law reform is no longer a liability and has started becoming a political asset.

While some Australians might consider the ACT had been rash to decriminalise possession of personal quantities of illicit drugs, the increasing international adoption of drug law reform suggests otherwise. After all, the arguments against drug prohibition had been piling up for decades. And now many countries have shown that not only does the sky not fall in even after substantial drug law reform but also that outcomes generally improve. An ALP-Greens Coalition or the ALP on its own has governed the ACT following its last six elections. The Liberal opposition is now almost invisible. The political risk of the ACT government decisions to support a fixed drug testing site, introduce drug decriminalisation and potentially regulate recreational cannabis appear to be small. At best, social policy reform including drug law reform is generally slow and incremental. While many might wish for a faster and more heroic reforms, this is uncommon in practise.

The ACT health minister, Rachel Stephen-Smith, said focusing on harm-minimisation rather than punishing drug users was the way forward. “The ACT has led the nation with a progressive approach to reducing the harm caused by illicit drugs with a focus on diversion, access to treatment and rehabilitation and reducing the stigma attached to drug use,” she said. Quite so.

Yes one of these days Minister Stephen-Smith and the ACT Government will be asked to explain why they are happy to sensibly regulate recreational cannabis and support drug decriminalisation but yet continue to severely restrict vaping nicotine, a much safer option than smoking cigarettes. Meanwhile deadly cigarettes continue to be readily available for Australian adults including in the ACT. Sadly, Minister Stephen-Smith repeats the preposterous talking points of nicotine prohibitionists.

Compared to other jurisdictions, the ACT electorate is well educated and has high incomes. This suggests that future ACT governments will likely support other drug law reforms if the arguments are presented to them. Yet the Commonwealth government can still over rule decisions made by the Legislative Assembly in the ACT and NT as they did on the issue of voluntary assisted dying. Some thought has been given to discarding the ability of the Commonwealth government to over rule the ACT and NT on the issue of voluntary assisted dying. But if the Commonwealth government were to give up this power for all policies and not just for voluntary assisted dying, it is likely to encourage the ACT government to pursue more drug law reform, in turn encouraging more drug law reform in other jurisdictions.

When, as is usually the case, demand for prohibited drugs (or other commodities or services) is strong, controls are easy to subvert, and the inevitable replacement drug is more dangerous, a prohibition is destined to fail. This is what almost always happens although the failed system can survive for some time supported by political benefits. The unravelling of drug prohibition has to be taken one drug at a time with different arrangements made for different drugs. Some politicians find it difficult to understand that prohibition (or de facto prohibition as Australia provides for vaping) fails for virtually all drugs. Inevitably, the ACT will also reach that point sooner or later.

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