The case for drug decriminalisation
ID: a crowded dance floor under strobe lighting with a person's hands raised making the figure of a heart. Photo by Anthony DELANOIX on Unsplash
Australian governments have been hesitant to adopt comprehensive drug decriminalisation despite the overwhelming evidence that it will protect the most vulnerable. Isabel Mudford, Sociology PhD candidate at the ANU and policy advisor, takes us through the evidence.
The ACT is on the precipice of being the first jurisdiction in Australia to decriminalise the personal possession of drugs. Drug decriminalisation refers to a situation in which, while technically illegal, criminal charges are not applied for the possession of drugs. Decriminalisation is intended to enable a community and health-based response to drug use by reducing stigma and easing access to health and social supports. Decriminalising drugs, and other harm reduction measures, have led to positive outcomes in other jurisdictions around the world including a decrease in the transmission of blood borne viruses, overdosing, and drug-related crime. By decriminalising drugs, the ACT will join other progressive jurisdictions around the world including Germany, Chile, Belgium, Portugal, and Oregon which have all introduced forms of decriminalisation over the last twenty years.
This reform should be done comprehensively from the beginning. Otherwise we risk spending several more decades with a system that continues to penalise people for the possession of drugs. While the vast majority of people use drugs recreationally with little to no harm, some people experience health and interpersonal problems as a result of drug use. Allowing for these people to access support without fear of criminal sanction is the most effective way of reducing the harms drugs can have on individuals, their families, communities and the ACT as a whole.
Decriminalisation is supported by the vast majority of Canberrans too. A poll undertaken in June 2022 found that 70% of Canberrans support a non-punitive approach to drug possession. This attitude reflects the ACT’s long history of supporting drug harm reduction policies, including world leading trials in the mid-90s of heroin prescribing, a move intended to prevent overdosing at the height of Canberra’s heroin crisis. In 2016 and 2018, the ACT trialled two pop up pill testing stations at the Groove in the Moo music festival and just a few weeks ago opened CanTest, a permanent pill testing site on Moore St in Canberra’s CBD.
In 2020, after 25 years of operating an infringement penalty for the possession and cultivation of cannabis, the ACT finally decriminalised these acts. The local drug user peer support organisation the Canberra Alliance for Harm Minimisation and Advocacy (CAHMA) has said decriminalising cannabis has seen a fourfold increase in the number of people who perceive they have a problematic relationship to cannabis use accessing support. This increase has led the ACT to consider the benefits of extending these reforms to other commonly used drugs.
ID: Two people hold hands in a crowd. One hand has a yellow festival entry bracelet. Photo by Chinh Le Duc on Unsplash
In February 2021, ACT Labor backbencher Michael Pettersson tabled a private member’s bill which would create an infringement system for the possession of small amounts of drugs, similar to the system which operated for cannabis between 1992 and 2020. Calling this reform ‘decriminalisation’, Mr Pettersson argued that his bill would align drug policy with community attitudes and put an end to the criminalisation of drug use.
The Assembly inquiry that was initiated after the introduction of this bill heard from over 80 individuals and organisations, the vast majority of which supported decriminalisation and a non-punitive, health based response to drug use. On the first day of hearings, members of the Select Committee heard from families and carers of people who use drugs, including people whose children have passed away from overdoses that would likely have been prevented if the reforms before the Assembly were introduced decades ago. Later in the hearings, the Committee heard from doctors in the emergency department, people who run therapy for people experiencing substance dependencies, academics, and legal experts. These people wrote passionate and detailed submissions before appearing in person before the committee to answer questions on drug harm reduction and the experiences of caring for people with a problematic relationship to substance use.
As partners in government, the ACT Greens and ACT Labor have a strong track record of implementing nation-leading and evidence-based drug harm reduction policies. In 2020, the ACT Legislative Assembly agreed to make pill testing a permanent service. The summer which proceeded 2020 was one of many horrors, including a series of avoidable drug-related deaths of young people such as Alex Ross-King who overdosed on MDMA when she ‘preloaded’ to avoid police detection before entering a music festival in NSW. A review of drug overdose deaths undertaken by the National Drug and Alcohol Research Centre (NDARC) later that year revealed that overdosing on party drugs at music festivals accounts for only 4% of drug related deaths.
The majority of deaths by overdose according to NDARC occur in private places, peoples homes mostly. They occur because people who need support, people who need access to treatment for problematic substance use cannot access that support for fear of a punitive response. People in these situations are often ashamed of circumstances they find themselves in and are fearful, rightly or wrongly, of the police and the criminal justice system more broadly. While it is important to provide a service to check drugs for lethal and harmful substances before they are consumed, we need to build a social and political environment around this service which enables its use. Proper, evidence based decriminalisation will do just that.
ID: A person with gloves and masks uses a pill testing machine
Unfortunately, Mr Pettersson’s proposed legislation, and the ACT Government’s proposed amendments continue a punitive response to drug possession. Functionally, they do so by introducing fines and compulsory diversion programs and by creating a third category of personal possession, the consequences for which could be up to an $8000 fine or a 6 month custodial sentence. This is problematic on two fronts. Firstly, under the Minister’s amendments, the mere possession of drugs in the ACT could land someone in prison for 6 months. Secondly, by retaining a punitive response to drug possession we maintain a system that stigmatises people who use drugs.
This stigma is incredibly damaging. This stigma drives people away from support, causing harm to themselves and those who care for them. While ACT Government representatives have stated that they support a health response to drug use, the legislation before the Assembly is unlikely to realise this vision. While the proposed legislation softens our response to drug possession, it does not actually decriminalise this act. Retaining fines and custodial sentences for personal possession does not reflect an evidence-based approach to drug use nor the position of the Canberra community.
The ACT Greens crossbencher Johnathan Davis has tabled alternative amendments that ensure that people who possess drugs are not criminalised for possession. These amendments retain the existing possession quantities which are based on the best available evidence and ensure that there is no pathway into the criminal justice system for someone found in possession of drugs.
Research has found that legality is not a central concern in the decision whether or not to take drugs and therefore legal condemnation of drugs does not decrease usage. Punative drug laws serve to lead vulnerable people into the criminal justice system and increase stigma and discrimination against marginalised groups. Proper, evidence-based decriminalisation creates an environment in which the people who need support are more willing to access it. It is as simple, and as bold, as that.
Isabel Mudford is a gender policy professional, ACT Greens policy advisor and PhD Candidate at the ANU School of Sociology.