Next month, the ACT will become the first jurisdiction in Australia to decriminalise hard drugs, including ice and heroin.
“The policy that’s been implemented will be in place in seven weeks, and ACT Policing is ready for it,” ACT Chief Police Officer Neil Gaughan told ABC Radio this week.
The ACT Government says that by treating drug use as a health issue rather than a criminal one, and reducing fear and stigma, the changes make it easier for drug users to access health support.
“These reforms are about reducing the harm caused by contact with the justice system and prioritising a health response,” a government spokesperson said. “They reflect a progressive, health-based harm-reduction approach to illicit drug use to reduce the number of deaths and lives ruined by illicit drugs.”
The reforms are supported by the community sector: Alcohol Tobacco and Other Drugs Association (ATODA), Uniting NSW / ACT, Directions Health Services, the ANU Drug Research Network, the Canberra Alliance for Harm Minimisation and Advocacy, and Families and Friends for Drug Law Reform.
“ACT Policing supports the position that personal illicit drug addiction is first and foremost a health issue that is best dealt with by health professionals, rather than dealt with punitively by police and the justice system,” a spokesperson said.
But the Canberra Liberals, the police themselves, and bereaved families are concerned that decriminalisation will make drugs more available, encourage drug use, and increase crime rates.
“Police intelligence and observations of other cities where decriminalisation or legalisation has been implemented indicate drug use will increase with the passage of those laws,” an ACT Policing spokesperson said.
“In turn, this has the potential to impact community safety as well as the allocation of police resources.”
Jeremy Hanson MLA, Deputy Leader of the Opposition and Shadow Minister for Police, said: “It will encourage users; it will encourage dealers, which encourages organised crime; you’ll just have more drugs on the street, and that leads to increased addiction, and increased overdoses, so it’s very bad, not just from a law-and-order crime perspective, but also from a health and addiction perspective as well.”
What are the reforms?
From 28 October, those caught in possession of small amounts of illicit drugs might pay a Simple Drug Offence Notice fine of $100 or attend an assessment and harm reduction session, rather than face a two-year prison sentence. Police would still be able to fine, divert, or caution offenders as appropriate, and to prosecute people for other offences that occurred at the same time as the drug possession offence.
The quantities are limited to 1.5 grams of amphetamine, cocaine, methylamphetamine (ice or meth), MDMA (ecstasy), and psilocybin (magic mushrooms); 1 gram of heroin; and 0.001 grams of lysergic acid or LSD. This follows the legalisation of cannabis (up to 50 grams for personal use, and cultivation of up to four plants) in 2019.
The ACT Government has spent the last year implementing the reforms following the successful passage of Labor backbencher Michael Pettersson’s Drugs of Dependence (Personal Use) Amendment Billin October 2022.
“The Act will bring our drug laws in line with modern community standards and expert opinion, and they reflect global trends in drug policy,” a government spokesperson said.
The government claims overwhelming support for drug decriminalisation, based on a 2021 YourSay survey on Drug Law; 63 per cent of respondents believed people caught in possession of heroin, meth / amphetamine, or methadone / buprenorphine should be referred to a drug education program or to treatment. However, 66 per cent of Canberrans nominated meth / amphetamine as a concern for the ACT community; 95 per cent disapproved of its use, and 93 per cent disapproved of the use of heroin.
The Alcohol and Drug Foundation hopes that decriminalisation will lead to reduced drug harms and better health outcomes for people who use drugs.
“This is about helping people get into treatment when they need it, and also freeing up police and court resources to go after more serious crime, including people who are manufacturing and distributing drugs,” spokesperson Robert Taylor said.
“Despite record law enforcement seizures of illicit drugs, drug use continues, and often the legal harms associated with drug use outweigh the actual harms associated with that drug itself.
“The vast majority of people who use drugs aren’t dependent … When we criminalise people, and they face further harm through the legal system, they struggle to access employment, face damaged relationships, and so on. That can lead to further harm, and keep the cycle going.
“For people who are dependent on drugs, a criminal approach can further entrench the issues that led to that dependency in the first place. So decriminalisation, the removal of that criminal penalty and the criminal charge, provides an opportunity for people to engage with the health system and get the treatment that they need,” Mr Taylor said.
Diversion
But critics query whether the reforms are necessary. The ACT already has one of the highest diversion rates for drug possession in Australia, and the lowest rate of proceedings on primary illicit drug possession offences in the country, as health minister Rachel Stephen-Smith stated last year; in 2019/20, the rate of clients receiving treatment was the second highest in Australia, double the national average.
Since 2001, the ACT Police Illicit Drug Diversion Program has diverted people away from the criminal justice system to health and social services; the government states that drug use has trended downwards over that time.
In 2019-20, ACT Policing completed 192 referrals to the Illicit Drug Diversion Program (including 56 referrals for cannabis, 68 for cocaine, 34 for MDMA, eight for methamphetamine, two for crystal methamphetamine, and one for heroin), and 174 referrals in 2022-23.
In 2021-22, police made 124 apprehensions for illicit drug possession (with no other offences present), and 190 in 2022-23.
“ACT Policing very rarely criminalises the personal use of substances – resources are targeted at drug trafficking,” the Legislative Assembly’s Select Committee on the drug reform bill was advised. “ACT Policing already adopts a harm minimisation approach to illicit drugs.” (ACT Policing informed the Committee that because criminality was often driven by drug use, drug possession offences were regularly prosecuted alongside more serious offences.)
The ACT Law Society, for one, doubts whether the reforms would have anything more than “a minimal effect” on diverting drug users from the criminal justice system.
“It is relatively uncommon for drug users to come before the courts charged only with drug possession,” their submission to the ACT Government inquiry stated.
Possession of a drug of dependence is typically charged alongside other criminal offences such as burglary, assault, or drug driving.
ACT Law Society
“[Decriminalisation] doesn’t actually do anything to help people who are addicted to these drugs because they’re not actually caught up in the criminal justice system at the moment,” Jeremy Hanson said.
In his opinion, the current system works. Police had transferred and diverted hundreds of people to treatment, he said in the debate over the bill last year; without criminal sanctions attached to penalties, heroin and meth addicts would not willingly get treatment.
Mr Hanson had proposed that the current penalties should be kept, but the government should resource more drug treatment and support for users.
He has a petition – signed by 3,000 people so far – urging the government not to decriminalise meth, heroin and other hard drugs; to properly resource ACT Policing, which he claims is chronically short-staffed; and to properly invest in underfunded drug treatment services. This follows his sponsorship of a petition by Bill Stefaniak’s Belco Party last year, which he says the government ignored.
Police implementing policy despite concerns
ACT Policing is working with the government to implement the reforms, a spokesperson said – but police officials have warned repeatedly of the potentially disastrous consequences of decriminalisation.
ACT Health, ACT Policing, and community groups are finalising the wording of the Simple Drug Offence Notice, which includes information on accessing patient-centred treatment.
Police are working with the Canberra Alliance for Harm Minimisation and Advocacy (a peer-led organisation) to develop training focused on harm minimisation.
“ACT Policing will implement a plan to prepare our workforce to support the government’s priority of harm reduction and to free the courts of minor drug possession offences,” a spokesperson said.
“ACT Policing will continue our commitment to reducing the manufacture, trafficking, and supply of illicit drugs through the targeting of organised crime.”
Chief Police Officer Neil Gaughan said this could involve changes in attitudes. “[Police] are going to see people probably take a line of coke; historically, they may have intervened; they are probably not going to now, so we’re just going to have to think about how we change the mindset of our members in relation to the way they deal with that. We are doing a lot of training with the men and women who police Braddon and the City.”
The police have, however, voiced misgivings about the reforms for some time. This week, Deputy Commissioner Gaughan told the ABC he was worried more young people would try drugs.
“I am concerned about people trying drugs that haven’t historically done it, because I think there will be confusion particularly [amongst] young people who won’t understand the difference between decriminalisation and legalisation, and that could actually see an increase in people trying drugs,” he said.
“The harm minimisation issue still needs to be front and centre, and that means ‘people, don’t take drugs. They’re dangerous’.”
Last year, AFP Commissioner Reece Kershaw told the Senate that decriminalising drugs would make the ACT “a far more dangerous environment” to police: “It would lead to chaos.”
Illicit drugs, he argued, facilitated and enabled other crimes: assault, murder, and money laundering; caused domestic violence; and were involved in fatal accidents.
An ACT Policing spokesperson said this week: “Crime can be driven by and influenced by illicit drug dependency. For example, illicit drug taking is a common aggravating factor in many assaults, while the theft and sale of stolen goods can be linked to purchasing illicit drugs or to service illicit drug debts. Additionally, illicit drug possession offences are regularly identified at the time more serious offences occur. For instance, it is not uncommon for a burglar to also be found in possession of illicit drugs when stopped by police.”
Last year, too, Deputy Commissioner Gaughan said: “I’m worried we’re almost enabling addiction and the criminality that’s often behind that.”
The Australian Federal Police Association (AFPA) has warned that drug reform might undo the ACT Government’s good work decreasing family violence in the ACT: “Making dangerous, addictive drugs easier to obtain will not make it safer for women and children,” president Alex Caruana said.
“But it’s a policy decision for government,” Deputy Commissioner Gaughan told ABC Radio this week. “Ultimately, the government’s elected, not me; they’re the ones that put the laws in place; and we’ll work with them on the policy change.”
Narcotourism in the ACT
That has not stopped the Chief Police Officer from expressing alarm about drug tourism. “It would be naïve not to think people won’t come down, even for a weekend, to get on the coke and not worry about the cops … it’s a reality we can’t ignore,” Deputy Commissioner Gaughan told The Daily Telegraph.
“Certainly,” he said on the ABC this week, “the apprentice carpenter in Campbelltown [a Sydney suburb] is not going to know the difference between decriminalisation and legalisation, and they’re two and a half hours up the road.”
This was also a concern for Commissioner Kershaw, who stated that the Netherlands’ soft drug policy led to narcotourism and organised crime.
The ACT Government remarked that the same arguments were made before the full decriminalisation of cannabis possession for personal use. “There is no evidence that this has eventuated.”
“There’s no evidence anywhere in the world that decriminalisation has led to drug tourism or increased drug use,” Robert Taylor (Alcohol and Drug Foundation) agreed.
“It’s really important to remember with decriminalisation, that if someone is detected with drugs, the drugs are still confiscated, the police will stop them, they will take the drugs. And then the person will, in this case, in the ACT, either face a $100 fine or attend a treatment session.
“There’s sometimes a perception that decriminalisation means anything goes, police won’t be stopping people and taking drugs, confiscating them. There’s still no greater incentive for an individual to use drugs than there was previously.”
Increase in drug usage
The use of cannabis increased by 20 per cent since it was legalised in 2019, an ACT Policing spokesperson said, referring to ACIC Wastewater monitoring reports. Deputy Commissioner Gaughan has warned that the decriminalisation of hard drugs could lead to a similar increase.
“We legalised cannabis in 2021, and there was a 20 per cent increase in usage, so it’s safe to assume we are going to see an increase in other drug usage, and Canberra already has a fairly strong use of coke per head of population,” The Daily Telegraph quoted him as saying. “The nation will be watching us – we are the first to go this far.”
The AFPA last year raised concerns that new possession weight limits were too heavy, and provided an ‘instant defence’ for drug dealers, who would be able to operate below them. The Chief Police Officer is particularly concerned about meth (ice).
“You will be allowed 1.5 grams, which is 15 hits, which costs about $1,500,” Deputy Commissioner Gaughan informed the Daily Telegraph. “Not many users will have that money, and that could see other crime problems.”
But a government spokesperson said: “The main reductions are for smaller amounts, which evidence indicates are very likely to be for personal use only. Trafficking of illicit drugs will remain illegal in international, national, and ACT law with substantial penalties …
“The government is committed to continuing to focus on disrupting drug-trafficking and reducing supply of drugs through the justice system.”
Drug driving
Police are concerned that decriminalisation, particularly of ice, will make Canberra roads more dangerous, and cause more fatalities.
“Meth (ice) is highly addictive, so the worry is people will go on four- or five-day meth benders, go out and drive, and kill someone,” Deputy Commissioner Gaughan said.
Half of the drivers involved in the 18 road fatalities in the ACT in 2022 had at least cannabis (and in some cases, other substances) in their system at the time of the collision, ACT Policing said.
“Last year,” Deputy Commissioner Gaughan continued, “we had 18 people die, a 300 per cent increase on the rolling average, and most of those people had meth or cannabis in their system.”
Tom McLuckie and Bill Stefaniak both lost their sons in motor accidents where the drivers were on ice; they are outspoken opponents of the reforms.
“What about the deaths on our roads, the assaults and burglaries to our homes, the murder that took place by an addict who stabbed a man to death while on bail, drugged out off his face last year?” Mr McLuckie posted on Facebook last month.
“As a father whose son was killed by an iced-up drug addict, how many ice users do you know will not still jump in a car and drive? How many ice raged maniacs like the ex-partner of Tara Costigan will not kill their partners? … Any further deaths on our roads, our homes, our street are on you [ACT Government].”
In his column last week, Mr Stefaniak wrote: “Over the next couple of years, a number of ACT parents will, like me, lose a son or daughter as a result of drug driving accidents – who may not have been lost if we didn’t have these disastrous dangerous laws. All that decriminalisation will do is encourage more young people into becoming users – with tragic consequences. The first duty of a government is to protect its citizens, not encourage dangerous practices that put them in harm’s way.”
The AFPA warned last year that might not be able to tell if someone was driving under the influence of drugs, or stop them if they were.
An ACT Government spokesperson said that penalties for driving under the influence of drugs (and other criminal offences that may occur at the same time as drug possession) will not be impacted by the changes.
Furthermore, several recent serious incidents in the ACT involved or are suspected to have involved illicit drugs and illicit drug use, ACT Policing said. Some recent examples include the death of 82-year-old man Richard John Cater in March 2019, killed by a then-teenager on LSD, and the death of 29-year-old man Jordan Powell in December 2021, stabbed in an altercation with a drug user.
Jeremy Hanson noted the link between cannabis and psychosis. Cannabis increases the risk of early onset of psychotic disorders (such as schizophrenia) and depression, and can induce temporary psychotic episodes, the US National Institute on Drug Abuse states.
“Obviously, that will have a negative effect in terms of the number of people pursuing that drug,” Mr Hanson said. “I don’t think we want people to be using anything like that that’s harmful, particularly younger people.”
The ACT Government, however, states that wastewater testing indicated there was no change in cannabis use rates in February 2020 in the ACT, and there was no change in cannabis-related emergency department presentations in the year following the cannabis amendments.
“There is no data in the reports that indicate the legislative changes to cannabis caused increased cannabis use in the ACT,” Rachel Stephen-Smith said. “Rather, the ACT was part of a national trend of increased cannabis during COVID-19 lockdown periods …
“The ACIC wastewater monitoring reports show that the ACT is consistent with a broader national trend of increased cannabis consumption during the COVID-19 lockdown period. The use of cannabis declined within the ACT, and nationally, as much of the country exited lockdown. It still remains at slightly higher levels nationally compared to before the pandemic.
“Prior to COVID-19, the most recent National Drug Strategy Household Survey (2019) indicated that the ACT had the lowest recent use of any illicit drugs of any state or territory.”
Likewise, the Alcohol and Drug Foundation said that neither South Australia nor the Northern Territory saw significant changes in cannabis use after decriminalising cannabis (1987 in SA, 1996 in the NT).
Service gaps
Jeremy Hanson is worried that decriminalising drugs would overcrowd drug treatment services, which he says already have long waiting lists; his petition calls for the government to properly invest in those services.
The Inquiry into the bill heard that there was a significant lack of availability of alcohol and other drug (AOD) services in the ACT.
“The sector suffers a shortage of skilled staff, infrastructure, and resourcing,” the report declares. “Canberrans seeking speciality AOD services are faced with long waiting periods which leads to greater harm and increased costs. Some organisations see their continuation in the sector as unsustainable due to the short-term nature of their funding.”
The same report mentions a 2014 Commonwealth review that found that half of people seeking treatment could not access it, and that the Alcohol Tobacco and Other Drugs Association recommended doubling funding for services in the ACT to cover unmet demand.
“It suggested that only about half of the drug treatment services and staff are available to adequately resource what we currently need, let alone what would happen after decriminalisation,” Mr Hanson said.
The AFPA also said last year that that the government had not invested enough in health and rehab to decriminalise drugs: because rehab spaces were limited, Canberrans had to travel interstate to receive treatment. It called on the government to boost and fund more services.
In response, a government spokesperson said the 2023–24 budget invests more than $67 million across harm minimisation measures. This includes $49 million to construct the new Watson Health Precinct (nearly $49 million over three years); extending the CanTEST Health and Drug Checking Service for an additional 18 months; continuing the ACT Drug & Alcohol Sentencing List ($14.7 million over four years); the Ngunnawal Bush Healing Farm ($620,000 over one year); and harm reduction (nearly $3 million over four years).
This builds on more than $26 million the government invests every year in alcohol and drug treatment and harm reduction services in the ACT, delivered by Canberra Health Services and non-government treatment providers, the spokesperson said.
Lessons from abroad: Portugal and the USA
Two examples of drug decriminalisation abroad are often instanced – one as a warning, one as a vindication.
Portugal once had the highest rate of drug-related AIDS in the European Union, and an increasing rate of drug overdose deaths, according to the Drug Policy Alliance (US). After decriminalising drugs in 2000 and adopting a health-focused approach, the Transform Drug Policy Foundation (UK) noted in 2014, Portugal’s levels of drug use fell below the European average, drug use among young people declined, and crime rates fell.
The Alcohol and Drug Foundation says the evidence from Portugal is favourable. “There’s a lot of really strong evidence to show that decriminalisation has reduced health harms in Portugal without increasing drug use, drug tourism or crime as well,” Robert Taylor said.
According to a 2021 report by the Transform Drug Policy Foundation, Portugal’s rate of drug use amongst youth is consistently below the EU average; its rate of drug related deaths is a quarter of the EU average (6 deaths per million, compared to EU average of 23.7 per million), whereas it used to be the same as the EU average; and rates of blood borne virus transmission due to sharing needles have plummeted (from 50 per cent of all new HIV diagnoses attributed to injecting drug use in 2001/2002 to only 1.7 per cent of EU total in 2019).
But a Washington Post article (July) suggests that Portuguese approach is floundering, partly due to lack of resourcing:
Mayors are now calling for limited recriminalisation in urban areas and near schools and hospitals.
The visibility of drug use in cities is at its worst point in decades: there are drug encampments in towns and users shooting up outside schools and homes; drug use has been normalised; and police can do little.
The number of crimes committed by drug users has increased by 14 per cent.
People who need state-funded rehab are facing year-long waits, even though the number of people seeking help has dropped by 70 per cent between 2015 to 2021.
The use of cocaine and ketamine in Lisbon is now among the highest in Europe; overdose rates are at a 12-year high, nearly doubling in Lisbon between 2019 and 2023; the number of adults using drugs has increased by 5 per cent.
The collection of drug-related debris from Porto streets increased by 24 per cent in one year.
“Portugal is touted by the left as the great reason to decriminalise drugs because it’s such a success story,” Jeremy Hanson said. “Well, it isn’t – that’s a myth.”
The US state of Oregon decriminalised possession of small amounts of illicit drugs in 2020 (personal-use amounts of heroin, meth, LSD, and oxycodone); people found in possession of drugs would be subject to a civil citation and a $100 fine, which could be waived if the person agreed to a health assessment.
But The New York Times last month called Oregon’s “progressive and libertarian policy obsession a public policy fiasco”.
Between 2019 and 2021, opioid overdose deaths increased by 166 per cent; shooting incidents by 217 per cent; only 1 per cent of individuals who received drug use citations called a hotline to seek treatment; and the number of homeless people rose by 29 per cent.
Deputy Commissioner Gaughan visited Oregon’s largest city, Portland, and other North American cities this year to see the effect of decriminalisation.
“From what I saw over there (in February this year), it is not working,” he told The Daily Telegraph. “What I saw was not pretty. I saw in the States people smoking crack in the streets and the cops are turning a blind eye to that usage. Cops are walking around giving people a nudge to make sure they are not dead.
“A city like San Francisco has entire blocks that are literally no-go zones. Whole neighbourhoods are boarded up with people walking around zombified.”
The ADF notes that the USA is experiencing an epidemic related to synthetic opioids in their drug supply, which Australia does not have.
“It’s a completely different context, in terms of the drug supply, and so they’re experiencing something that is huge and requires a really broad health response,” Robert Taylor said.
However, Deputy Commissioner Gaughan does not expect fentanyl to be a problem here, he told ABC Radio this week.
“Because organised crime is making so much money under the current business model, I just don’t see a requirement for them to lace what they’re selling in Australia with fentanyl.
“They’re making three times the profit here in Australia on cocaine than they make in the US, so why change the business model? They’re businessmen ultimately; their motives are somewhat different to ours, but the fact is they’re in the market of making money.”
Liberals: Government pushing “radical drug agenda”
Jeremy Hanson is certain the ACT Government’s drug reforms are ideologically motivated: the government is “pushing a radical drug agenda” – and “circumventing normal process” and “hoodwinking the community” to do so – because they are chasing inner city younger voters, he argues.
“There’s a pissing contest between the Greens and the Labor party to try to capture what they would see as the progressive vote, so they’re almost egging each other on to push it as far as they can, and so that’s what they’ve done here.”
In pushing that agenda, the Canberra Liberals maintain, the government has been duplicitous.
“They perpetrated a con job on everybody,” Mr Hanson said.
According to The Australian, Rachel Stephen-Smith told Labor’s national conference: “We took it [drug decriminalisation] to the election quietly. But we could point to our platform and say ‘it’s in there’, so that after the election we were able to work on it quickly.
“It was done through a private member’s Bill, which means it could be done much more quickly. If the government had tried to do it, I tell you what, it would have taken two years to develop the legislation … and we would have had to deal with all this risk aversion and complexity.”
Ms Stephen-Smith has stated that the Labor party did not make a big announcement about their policy to decriminalize small amounts of illicit drugs because there were limits to what could be achieved during an election campaign. The minister emphasized that there was a transparent process leading to the policy, but she chose not to widely publicize it to avoid potential harm for drug users.
Last month, Canberra Liberals MLA Nicole Lawder accused Ms Stephen-Smith of breaching privilege.
The comments the minister made at the ALP National Conference, Ms Lawder argued, were “a clear politicisation and misuse of the committee process and deliberate avoidance of government legislative procedure”; the ACT Government had colluded with Michael Pettersson as chair of the Legislative Assembly Committee to ensure that the final committee report included a recommendation (that the ACT Government consider further criminal justice diversion for young drug users by investigating the appropriateness of a simple drug offence notice for some drugs) that would give authority for the government to implement their drug reform agenda.
The matter did not pass to debate. Mr Pettersson said the Liberals’ call for an investigation was a “cheap media stunt”.
“Ohhhh Jeremy Hanson… how you have changed,” Dr Paterson posted on Facebook. “We know the research evidence hasn’t changed between 2020 and now … it’s a stunning change of tune. A captured right wing these days.”
“That’s just complete fabrication, a lie,” Mr Hanson said.
Mr Pettersson’s motion (20 August 2020) was to investigate the feasibility of a simple offence notice for other drugs of dependence to ascertain the legal, social and health impacts. Mr Hanson said the Canberra Liberals supported the government investigating whether the simple offence notice could “broaden and apply to limited numbers of illicit drugs in certain circumstances”.
“The evidence … demonstrated that this was an effective system that achieved a good balance in relation to harm minimisation for cannabis,” Mr Hanson said at the time. “If that model can be applied to certain other drugs in certain circumstances, as it was to cannabis, that is worth having a look at.”
Mr Hanson gave the example of young people taking drugs at music festivals and then facing criminal sanctions, when a simple offence notice might be a better way of proceeding. But, he said: “There may be some drugs and some situations where we would never support a simple offence notice being applied.”
“We never said that we’d support decriminalisation: we certainly, in actual fact, explicitly ruled it out for any sort of drug beyond MDMA,” Mr Hanson said this week.
But the government, he states, never did an investigation, and are now decriminalising all drugs, including the hardest ones.
“To be frank, most people would realise that decriminalising drugs like heroin and meth is going to have a very negative consequence on our society,” Mr Hanson said.
“It’s a very different debate than the one that we were having, which was about things like pill testing and what do we do with young people who take a couple of pills at a festival. That’s the context that they were trying to hide and conflate this debate …
“They were trying to deliberately characterise an investigation into low level drug use for young people into decriminalising heroin and meth … It was always their plan, so they were lying to us the whole time.”
