Back to first principles on drugs

Jul 7, 2022
Illegal drugs on a picnic table
Image: iStock

Just why is it so hard for politicians to see a better way forward in dealing with drugs in the community and to act on that vision? It is not for lack of evidence of what works to make things better and most of the community knows that.

In the last 18 months in Sydney at least a dozen men who have been involved in turf wars and disputes over the profits of drug trafficking have been shot dead. There is no need for this to be happening – but just throwing more police, money and laws at the problem will not make it go away.

I appeared in court in my first of very many drug cases in 1975 and I have maintained a pretty good overview of the nature of the drug trade ever since. As many have said, prohibition has failed. Mick Palmer, former Commissioner of the AFP, says that we can’t arrest our way out of the problem and he is right.

There are many ways of approaching this discussion, but let’s go back to first principles. Throughout at least the recorded history of humankind, people have ingested plants and chemicals (drugs) to alter their mood and that will not stop. That means there will always be a demand for drugs. Where there is a demand and a profit to be made, there will be a supply and that creates a market – one in which there are no product safety requirements. The suppliers will set their prices to take into account their costs and any business risk they take. If official prohibition imposes a risk of punishment for involvement in the trade, prices will be higher to compensate – but they will not be so high that the trade will stop. It may mean, however, that buyers will need to supplement their assets unlawfully in order to meet the price.
There are many motivations for drug use, so prevention measures need to be numerous and diverse. They will still not stop demand and therefore supply.

Large scale suppliers in an environment of prohibition make very large profits which are applied, at least in part, to other criminal activity with commensurate harm to the community. They are also applied sometimes to seeking protection by the corruption of law enforcement.

Attempts to enforce and maintain prohibition have always failed, despite the public treasure spent. A border seizure of tons of a drug (widely trumpeted by law enforcement and the media) is quickly replaced by another criminal profiteer – it may have a temporary effect, but it really just opens a gap in the market that is quickly filled. Criminal enforcement of possession, use and small-scale supply does not end them – it adds for the people involved the harm of the criminal process and its consequences.

Nicotine is a deadly drug – it is estimated to kill over 20,000 Australians a year – yet it has never been prohibited in Australia: we deal with it by legalisation, regulation, control and taxation. Alcohol is a very dangerous drug to users and sometimes for those around them. Attempts to prohibit it in Australia (and elsewhere) have failed and we deal with it as for nicotine. Yet an arbitrary list of other drugs, many of them much less harmful than nicotine or alcohol, are prohibited outright.

Heroin used to be legally available, even in cough syrup over the counter. Coca Cola began with cocaine in it. Cannabis, with very few exceptions, is far less harmful than nicotine. Ecstasy, properly used, is virtually harmless. Ice has been put in a category of its own, possibly without justification although its abuse does seem to result in violence in some cases.

The report of the Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants, presented to the NSW Government on 28 January 2020, made 109 recommendations, including the development of a model for the decriminalisation of the use and possession for personal use of prohibited drugs. The five recommendations peremptorily dismissed by the Government were:
• additional medically supervised injecting centres
• two recommendations on substance checking
• ceasing use of drug detection dogs
• needle and syringe programs in correctional centres.

A couple of recommendations have been partly implemented incidentally by other initiatives, but the bulk of the Report remains “under active consideration”.

The Commissioner was a former Crown Prosecutor and respected and experienced senior lawyer and academic and the Senior Counsel assisting the Commission is now the NSW Director of Public Prosecutions.

Other jurisdictions around the world and, to a small extent, in Australia have been more progressive. In 2001 Portugal decriminalised possession and use of quantities consistent with personal use of all drugs. Antonio Guterres, now UN Secretary-General, was Prime Minister at the time and had to fight his own Ministers to get the reform through – but when some of them realised that this may be a better way of dealing with their drug using children, the path became smoother: such are the benefits of bringing lived experience to the argument. Dealing with drugs as a health and social issue has paid off in spades for Portugal and made it an even better country, as numerous evaluations have shown.

Other places have gone first for the low-hanging fruit – cannabis. Recreational cannabis is lawfully available in Canada, nineteen of the United States plus DC (and Guam and the Northern Mariana Islands). It is legal in various modes in Georgia, Malta, Mexico, the Netherlands, South Africa, Spain, Thailand and Uruguay.

Cannabis has been decriminalised in a further 12 US states, the US Virgin Islands, Belize, Colombia, Costa Rica, Czech Republic, Jamaica and the ACT in Australia.

Cannabis Caution schemes operate in most of Australia. (I am not considering medicinal cannabis in this discussion – its justification rests on therapeutic, medicinal grounds.)

A Way Forward?

Accepting for now (reluctantly) that none of the nine Australian governments will grasp the legalisation, regulation, control and taxation nettle, as they should (and for those who sought to profit outside the system, the criminal law would still be there), what other rational options are there (because persisting with complete prohibition is not rational)?

It is unlikely that the Portugal model would be adopted, although the decriminalisation of drugs consistent with personal use is a neat and effective option. It could be boosted by the fixed site pill testing to be trialled in the ACT which improves user safety. (Pill testing at music events worked well, but stumbled at the insurance hurdle.)

Reform might move to the decriminalisation of cannabis, taking the Cannabis Caution schemes a step further. Decriminalisation of other drugs may follow, even if conditional. Then decades down the track we might be game to try progressive legalisation.

But it is probably not helpful to try to forecast a way forward through our thicket of governments. It should be remembered for now that a large force of reforming agencies and individuals is hard at work to find it.

Uniting Fair Treatment and Harm Reduction Australia are two respected bodies working in the field – the Uniting Church and a national body of dedicated individuals respectively. From time to time Australia 21 has stepped into the breach. Unharm is another. The Australian Drug Law Reform Foundation assisted the establishment of the Australian Parliamentary Group on Drug Law Reform in 1993. There is no shortage of interest and engagement in seeking to create a more rational environment for dealing with a phenomenon that is not going away.

It’s a long game being played and in the meantime prohibition adds more harms for those who simply wish to alter their mood and fills the coffers of organised crime and its depredations at our very considerable public expense.

Nicholas Cowdery AO QC FAAL was the Director of Public Prosecutions for NSW from 1994-2011. He is a past President of the International Association of Prosecutors and of the NSW Council for Civil Liberties. He was foundation Co-Chair of the Human Rights Institute of the International Bar Association. He is the author of three books on aspects of criminal justice and teaches at the University of Sydney. He was a member of the Expert Advisory Panel of the ‘Ice’ Inquiry.

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