History of drug laws - Australia

The first Australian drug law was an 1857 Act imposing an import duty on opium. In the following years, a number of other laws were passed imposing often prohibitive tariffs on opium. The primary purpose of the laws was clearly to discourage the entry of Chinese people to Australia, rather than to restrict the importation of opium itself.

Australians in the nineteenth century were among the world's biggest consumers of opiates, thanks to the very wide popularity of patent medicines, most of which contained a high proportion of alcohol or morphine or both. Laudanum, a mixture of opium and alcohol, was taken regularly by upper class matrons and administered to children to calm them.

The first laws restricting opium were carefully worded to apply to opium in smokable form only - not opium as it was taken by the European population.

Cannabis plants were sent to Australia by Sir Joseph Banks on the First Fleet, in the hope that the new colony might grow enough hemp to supply the British Navy with rope. Cannabis was not consumed on a large scale (although it was readily available for sale as cigarettes called 'Cigares de Joy' until the 1920s). Cannabis importation and use was prohibited by federal legislation in 1926 (implementing the 1925 Geneva Convention on Opium and Other Drugs), with the States adopting similar prohibition in the following years.

Heroin was legally available on prescription in Australia until 1953. It was so widely used as a painkiller and in cough mixtures that Australia was the world's largest per capita user of heroin. The 1953 prohibition of heroin was the result of international pressure on Australia to conform to the prohibition of heroin adopted by other countries, with some opposition from the AMA. Ironically, heroin, cannabis, and other drugs were prohibited in Australia well before their use became a major social issue. Before the 1960s, drug use was not completely unknown, but dependent drug use was typically the result of the use of opiates after first using them for medical reasons. There were drug dependent doctors (and their wives), and a small bohemian subculture that used drugs. Many Australian arrests for drug offences involved visiting jazz musicians.

Among the significant social changes of the 1960s was the emergence of the concept of 'recreational' drug use - the consumption of cannabis, heroin, LSD and other psychoactive drugs for pleasure, or in pursuit of spiritual enlightenment. For the first time, drug use became widespread - if not quite mainstream - rather than an activity pursued by a few painters or poets. The official response was increased law enforcement, and legislative change to extend the range of offences and increased penalties for drug offences.

The 'old' Australian drug laws were mostly under the various state Poisons Acts, reflecting an underlying approach of regulation and control of medicinal substances, with potentially addictive drugs legally available only on a doctor's prescription. The 'new' drug laws introduced a distinction between use and possession offences, and supply offences. Penalties for possession and use increased, but very substantial penalties were introduced for drug supply, and especially supply of large quantities ('drug trafficking'). By 1970, all the states had enacted laws that made drug supply a separate offence to drug use or possession offences.

In 1985, the federal and state governments adopted a National Drug Strategy which included a pragmatic mixture of prohibition and a stated objective of harm reduction. Harm reduction has been an official part of Australian drugs policy ever since, although most resources by far are devoted to policing and border patrol attempts at interdiction ('supply reduction'). Fewer resources are made available for health treatment and drug rehabilitation programs, or for preventative public health programs such as needle exchange.

The needle exchange program has been successful. Australia maintains an extremely low rate of HIV infection among injecting drug users, compared to infection rates of 60% or more among injecting drug users in some US cities, where needle exchange remains illegal. The success of the needle exchange programs encouraged governments to at least consider adopting other harm minimisation initiatives.

The merits of a trial of a heroin prescription program, based on the Swiss model, were debated in the 1990s. The ACT government took steps to begin a trial program, but the Federal Government refused to allow the importation of heroin. Unable to source legitimate and controlled quality heroin, the ACT government abandoned the proposed trial.

Australia has been tentative about allowing legal injecting rooms, with NSW the only state to permit an injecting room, and then only one. The Medically Supervised Injecting Centre (MSIC) operated from 2001 to 2010 on a 'trial' basis. In October 2010 legislation to make the Kings Cross MSIC permanent, was passed by NSW Parliament. The Police Commissioner and the Director-General of NSW Health will continue to oversee the centre and it will undergo regular statutory evaluations every five years.

In all states, the impact of prohibitionist laws on drug users is somewhat modified by a number of diversion programs, diverting some eligible users from the criminal justice system to cautions or treatment.

Medicinal cannabis

Although the use of cannabis for medicinal reasons remains illegal, a number of state governments have signalled a willingness to consider legislative reform in this area.

The NSW government has announced four clinical trials of medicinal applications of cannabis in treating a number of conditions. Although the trials will not be completed for several years, it is perhaps more likely than not that the trials will result eventually in NSW allowing the legal use of medicinal cannabis in at least some circumstances.

The drug policy debate

Public debate over drug policy and calls for 'drug law reform' began in the late 1960s and has continued since. The opposition to prohibition was at first largely an argument on libertarian grounds: that people should have the right to consume drugs if they hurt nobody doing so, positing drug offences as victimless crimes. Those arguments are still made.

However, most arguments for reform today come from the harm reduction perspective. It is suggested that the legal prohibition of drugs creates crime, and makes drug-taking more physically dangerous. Prohibition also requires significant public expenditure without preventing significant levels of problematic drug use in the community.

The primary argument against relaxation of the criminal law treatment of drugs is that it would cause drug use to increase, and consequently lead to an increase in drug dependence. The social cost of drug use would likely rise if drugs became more freely available and more freely consumed. Although prohibition cannot completely prevent drug use, the risk of being caught by the police has a directly discouraging effect on drug users and would-be drug users. Prohibition forces drug prices higher, indirectly discouraging drug use.

It is also argued that having laws which make drug use (and supply) illegal has a symbolic effect, 'sending a message' that drug use is socially undesirable.

The counter argument is that making some drugs illegal and yet allowing demonstrably harmful drugs like tobacco and alcohol to be freely available to adults is hypocritical and undermines respect for the law and other social institutions. Forcing up the price of drugs does not prevent people using drugs, but it might encourage people to commit property crimes, or to engage in drug supply offences, to obtain the necessary funds.

The enforcement of laws criminalising drug use can contribute to risk taking behaviours - for example, injecting drugs alone, or consuming party drugs all at once to avoid sniffer dog detection.

There is a good deal of evidence to suggest that there is a link between illicit drug use and property crime, but the evidence is less strong in proving that drug use actually causes property crime. It may be that people who commit property crime are more likely to be drug users, so that drug use is not a cause. But it is clear that at least some drug-dependent people commit very large numbers of property crimes.

Similarly, there is a good deal of evidence to suggest a connection between cannabis use by teenagers and psychosis, but the evidence is less strong that cannabis actually causes psychosis. Most studies cannot rule out other drug use (especially amphetamines) as a potential cause of mental health problems, and it may be that people with mental health problems are more likely than others to use cannabis (so that the cannabis use is a feature, but not a cause). It is interesting that the national prevalence of psychosis in young people has not increased over the last twenty years, despite significant increase in cannabis use by young people.

The drugs policy debate is one in which most arguments can be supported by evidence from a study somewhere or an experience in one country or another. It can be argued that prohibition causes drug crime and prevents drug crime; that it discourages drug use or that it encourages harmful drug use; it complements efforts at drug rehabilitation or it draws valuable resources away from treatment programs.

The debate about the relative merits of these broad policy positions is not likely to end soon. However, it is likely that we will continue to see a variety of new laws and measures introduced - at times prohibitionist and at times harm reductionist - in an ongoing attempt to address the social consequences of drug use.