The ACT Legislative Assembly’s Bill to decriminalise the use of heroin, ice, speed, cocaine and ecstasy has hit a legal roadblock, according to Gary Christian, research director of Drug Free Australia (DFA).

Mr Christian said a previous letter from Prime Minister Scott Morrison to DFA clearly outlined that wherever ACT law clashes with Federal law, Federal law takes precedence; federal law criminalises the use of heroin, ice, speed, cocaine and ecstasy.

The DFA research director said the Bill to decriminalise all drugs, sponsored by Labor MLA Michael Pettersson, was reviewed by a Legislative Assembly Inquiry committee of three, where two recommended progress of the Bill while the third recommended against it. In the latter’s dissenting opinion, attention was drawn to the clash between the ACT Bill and Federal law.

Back in November 2019, when the ACT was publicising its Bill to legalise the recreational use of cannabis, DFA wrote to the Prime Minister, Mr Christian said. 

In the written reply, Scott Morrison stated that “the ACT legislation has no legal effect, and that offences in the Commonwealth Criminal Code will continue to operate, including in the ACT, as the ACT legislation does not prevail over, or negate, the operation of the Criminal Code”. 

Federal Health Minister, Greg Hunt had also informed the International Narcotics Control Board of the Federal-Territory relationship in a letter dated 1 November 2019. An article in the Australian at that time noted that use of these drugs would remain a capital crime with the ACT using Federal Police as their police force.

The Pettersson Bill was fashioned after Portugal’s policy of decriminalising all drugs which commenced in July 2001. According to Mr Christian, that policy was an abject failure. 

“In Portugal, drug use increased by 59 per cent by 2016, with increases of drug use by high-school minors by 60 per cent by 2015, and drug deaths increasing 62 per cent by 2018. And because heroin deaths track increases in heroin use, it is clear that heroin use had increased by around 60 per cent during those years,” he said. 

By comparison, Australia’s Tough on Drugs policy between 1998 and 2007 decreased all illicit drug use by 42 per cent and decreased opiate deaths by 68 per cent, all while maintaining criminal penalties for drug use.

“The Pettersson Bill flies in the face of Australian distaste for illicit drug use, where 96-99 per cent of all Australians surveyed, depending on which drug they are commenting on, do not approve the regular use of heroin, ice, speed or ecstasy,” Mr Christian said.

DFA backgrounder 

Drugs harm much more than the user 

• Illicit drug use adversely affects a whole constellation of people – the drug user’s partner, their children, their children’s grandparents, siblings, friends, workmates, other road users, and the rest of the community (crime, welfare, etc.) drawn into the vortex of their drug use.
• The unacceptable level of harms of drug use are attested by a simple fact – our governments have spent hundreds of millions of dollars on ‘harm reduction’ programs for drug use – it’s in the name.

Why there needs to be legal consequences

• Illicit drug use has historically attracted a conviction because of the unacceptable harms it causes to so many. For instance, the value of lost retirement and savings for grandparents raising their grandchildren due to drug-dependent parental neglect represents a ‘stolen’ cost infinitely greater than petty sums attracting criminal sanctions for shoplifters or embezzlers.
• 96-99 per cent of Australians do not approve the regular use of heroin, ice, speed, cocaine or ecstasy, suggesting that Australians would want less drug use, not more, which only rehab and recovery can achieve, making them mandatory. Decriminalisation will never drive recovery – it removes all meaningful limits or deterrence value in drug laws, being little different to fully legalising drugs practically-speaking. Australian Drug Courts have been an effective avenue for streaming drug users into rehab and treatment, where scrapping such interventions will  lead to escalating drug use and associated harms.
• With no legal mandated deterrent for a user to cease drug use by entering rehab, drug use markedly increases as it has in Portugal (their preferred model), which decriminalised all illicit drugs in 2001 only to see drug use rise 59 per cent, overdose deaths rise 59 per cent and drug use by high school minors up 60 per cent by 2017. By comparison, Australia’s Federal Tough on Drugs policy from 1998 to 2007 reduced drug use 42 per cent and overdose deaths 75 per cent by maintaining convictions and funding more rehab. Portugal increased societal harms, Australia reduced them.
• Drug Free Australia promotes the introduction of ‘spent’ convictions, where a criminal record is totally erased if a drug user can return drug free tests over a three-year period.

Keeping drugs illegal works

• 73 per cent of Australians say they have no interest in illicit drugs. Relevant to the remainder that likely would have an interest, 32 per cent of Australians say they don’t use drugs because of their illegality. If cannabis was legalised here, 10 per cent who’ve never tried it say they would use it, and 3 per cent who use it would use more, multiplying the established harms caused by cannabis.
• Changing the legal status of drugs removes these deterrents.  When cannabis was decriminalised in the ACT in 1992, 43 per cent of Territorians thought it was now legal to use, explaining its skyrocketing use by 1993 where monthly use amongst lifetime users went from 0 per cent to 31 per cent.

All use is problematic

• The argument that few have problematic drug use is contradicted by Australia’s most prolific researcher on heroin use, Prof. Shane Darke, who wrote that very few heroin users “use it in a non-dependent, non-compulsive fashion”. 1 in every 3 Australian illicit drug users becomes addicted.
• Their argument ignores the harms of occasional use where, for instance, 29 per cent of ecstasy deaths in Australia are from car crashes endangering the lives of passengers as well as people in other vehicles. Their argument is akin to saying that drivers who speed on our roads without causing loss of life should not be penalised for speeding. But the law does not work that way. And occasional users often promote their drug use to friends and family who can become dependent. In fact, 3 in every 5 Australian illicit drug users were introduced to drug use this way.

There is no ‘right’ to use drugs

• A recent Uniting Church document supporting drug decriminalisation argued that our drug laws should “reflect the essential worth and rights of every person”. But Australian drug users have never been denied any right available to any other Australian. Of greatest importance, there has never been a United Nations right to use illicit/controlled drugs. In fact, the UN Convention on the Rights of the Child accords each the right to live unaffected by illicit drug use and the UN Drug Conventions have always kept them illegal.
• The aforementioned document argues for Equity in drug policy, i.e. all drug use should be treated the same – all must be decriminalised. This is the same principle that guided international drug policy for 110 years – all drugs with unacceptable harms, whether heroin or cannabis, should be equally illegal.

Editor’s note: The opinions expressed in this column are those of the author and do not necessarily reflect those of Canberra Daily.

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