Submission: Inquiry into Drug Law Reform

Vicki Caulfield / 21 March 2017

Inquiry terms of reference

The Law Reform, Road and Community Safety Committee of the Victorian Parliament is to inquire into:

  1. The effectiveness of laws, procedures and regulations relating to illicit and synthetic drugs and the misuse of prescription medication in minimising drug-related health, social and economic harm; and
  2. The practice of other Australian states and territories and overseas jurisdictions and their approach to drug law reform and how other positive reforms could be adopted into Victorian law.


About the Rationalist Society of Australia

The RSA is the oldest freethought group in Australia, promoting reason since 1906. Members and supporters hold that all significant beliefs and actions should be based on reason and evidence, that the natural world is the only world there is, and that answers to the key questions of human existence are to be found only in that natural world.  

We seek to stimulate freedom of thought, support a secular and ethical system of education, promote the fullest possible use of science for human welfare, and encourage interest in science, criticism and philosophy as connected factors in a progressive human culture.

The first term of reference in this Inquiry focuses on harm minimisation and how well the current framework of laws and regulations reduces or exacerbates harms. The second term of reference focuses on the practicalities of reform and lessons that might be learned from other jurisdictions for the benefit of Victorians.

Recognising that other organisations will be able to furnish the Committee with detailed evidence of practices from other jurisdictions, we focus below on harm reduction and the rationale for drug law reforms.

What harms might be related to drug use?

In this submission, when we talk about ‘drugs’, we are talking about illicit drugs, not legal pharmaceutical drugs. We recognise there is a phenomenon of abuse or misuse of legal pharmaceutical drugs but other organisations will no doubt address this particular issue.

Illicit drugs can harm an individual’s physical health or their mental health; no doubt the Committee will be aware of the statistics about deaths and injuries caused by, or causally related to, drug use. However such harm is not an inevitable consequence of drug use; indeed the persistence of drug use is partially due to the fact that people enjoy taking drugs and for many, taking drugs is not harmful. Humans have taken drugs for centuries, perhaps millennia, for medicinal purposes, for traditional or religious reasons, or out of curiosity about the unknown. Young people in particular are attracted to trying drugs out of curiosity, and often this is a phase they grow through.

However, the harm that is sometimes related to drugs is not only caused by the drugs themselves. There are significant harms caused the current framework of drug laws, regulations and social norms. These can cause harm to an individual’s network of family and friends, and to the wider society.

How effective is the current framework of laws and regulations in minimising harm?

Physical harms

The Committee will no doubt have access to a full range of information about the sort of harms that may result from an individual’s use of illicit drugs. Over the years, the public has been exposed to newspaper articles, books, films and social media that have documented the potential for tragic harm caused by drugs. Such exposure has no doubt shaped the public’s distaste for drug use, to the extent that a policy of ‘just don’t do it’ has become the default position for both sides of politics.

But we know this policy just doesn’t work. People continue to take drugs, drug-related deaths continue, families continue to be devastated.

Social harms

Apart from the harms to individuals and their families, the current policy of prohibition causes wider social harm. A 10-year review published in 2009 by the United Nations makes the claim that:

“The option with the most scope [for social improvement] is increased effort at diverting arrested drug users out of criminal justice systems. No prevention, treatment or enforcement strategies have demonstrated an ability to substantially affect the extent of drug use and addiction. The best that government interventions can do is to reduce the damaging consequences of drug use and drug control. More attention should be given to reductions in the intensity of drug enforcement, which has many unintended adverse consequences and yields few of the claimed gains”

This conclusion has considerable weight if we examine the economic cost of policing drug use and punishing drug users. But apart from the economic costs, there are adverse social consequences associated with the current framework of drug laws and regulations. For example, we know that interactions with the justice system during adolescence can have a severe impact on later life outcomes.

A young person who tries illicit drugs out of curiosity and is caught by police might be charged with a criminal offence that carries stigma for the rest of their life. They would be unable to visit some countries, in particular the United States; a criminal offence on their CV might make it hard for them to gain a job in a competitive economy; and there is the potential for social stigma from family and friends.

Further, we also know that ‘softer’ laws such as decriminalisation do not appear to influence the price of drugs, suggesting demand is relatively inelastic. The claim that changing drug laws is likely to lead to increased use seems not to be supported by the evidence. In the specific instance of cannabis, there is evidence that decriminalisation does not lead to increase in drug use and that criminalising it, on the other hand, does not lead to a decrease in use .

If changes in the framework of drug laws and regulations lead to no greater harm but may deliver benefits (social, economic, or democratic), it makes sense to consider such changes.

To reduce the risk of entanglement with the criminal justice system for drug users, we recommend the decriminalisation of cannabis, MDMA, heroin and amphetamines. (Below, we also recommend legalisation of cannabis and MDMA.)

Economic harms

Apart from harms to an individual and their immediate circle, the current framework of drug laws comes at a significant cost to society. The total cost of drug law enforcement – police services, judicial resources, legal expenses, corrective services, the Australian Federal Police and the Australian Customs and Border Protection Service –  is around $1.7 billion annually. This is money that could be better spent on measures to educate young people about safer use of drugs and thereby reduce the potential for harm.

In addition, the existing framework of drug laws has the effect of institutionalising criminal organisations that profit from illegal acquisition and distribution of drugs. The Australian Bureau of Statistics has estimated tax avoidance by this black market at around $20 billion. From an economic perspective, reforms that undermine the hold by criminal organisations over the ‘drug trade’ must improve the benefit-to-cost ratio.

We recommend the legalisation of cannabis and MDMA. This would not only undermine the black market for these, the most common of illicit drugs, but would also enable greater quality control and provide an avenue for government taxes similar to those on alcohol and tobacco.

Why persist with the current framework?

If the aim of the current framework of laws and regulations is to minimise harm, it is clearly failing. The principle of harm minimisation relies on a ‘utilitarian’ ethic: ie, the principle that it is generally a moral good to either increase happiness or reduce suffering. Harm minimisation as an ethical framework avoids sanctimonious judgements about the morality of drug-taking and seeks only to avoid or reduce the potential or actual harms caused to people when they do take drugs.

But there are other ethical frameworks. The Kantian ethical framework advises to do only those things that one could generalise to everyone. The virtue ethic framework urges people to aim to be a good person and build a good society. The difficulty of garnering widespread public support for changes to the current framework of drug laws and regulations may depend on people unconsciously seeing the ‘drug problem’ not through a utilitarian ethical framework but through a Kantian one or a virtue ethics one. Instead of responding with compassion to the call to minimise harm to individual drug users, some may assume anyone who seeks to use drugs are self-indulgent hedonists, who fail the test of being a ‘good person’; and a society that tolerates drug use fails the test of being a ‘good society’. Or, they may make the judgement that if drug use is legitimised by decriminalising it, then ‘everyone will want to do it’ and this is a bad outcome for society as a whole.

The question before the Committee is whether to adopt the utilitarian ethical principle of harm minimisation or whether to persist with the sanctimonious and judgemental view that drug users suffering harm from drugs are responsible for their own misery and must be further punished by social mores and the force of law.

While we recognise that no ethical framework is necessarily superior in all circumstances, a clinching argument in our view is that the current framework of drug laws and law enforcement just isn’t working!

As has been reiterated repeatedly by experts in the field like Professor Alison Ritter and Dr Alex Wodak, as well as respected journals like The Economist, The Lancet and the British Medical Journal, the so-called war on drugs, using a policy of prohibition, has failed spectacularly. Continuing to spend $1.7 billion a year on a failed policy is very bad public policy at the least and perhaps madness at the worst.

While understandable because of known human frailties, continuing the current framework of drug laws and drug law enforcement is a very expensive example of the strategic error known as the ‘sunk cost fallacy’ – throwing good money after bad; and the logical fallacy known as the ‘escalation of commitment’ – a pattern of behavior in which an individual or group continues to rationalise their decisions, actions, and investments when faced with increasingly negative outcomes rather than alter their course. Understandable perhaps, but unforgivable.

The RSA supports a secular, pluralistic and democratic Australia where government policy is based on evidence, reason and compassion. Along with John Stuart Mill, we believe

“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his body and mind, the individual is sovereign.”

Having sovereignty over their own lives and bodies means adult Australians should be able to use drugs for recreational purposes without fear of criminal prosecution, as long as they do so responsibly, not for commercial gain and without causing harm to others.

Positive Reforms

During the 1980s, Australia was one of the first countries to enact a policy of harm minimisation, which comprised three factors: supply reduction, demand reduction and harm reduction. However, since the mid 1990s most emphasis has been placed on supply and demand reduction (the ‘tough on drugs’ policy) and very little on harm reduction. We recommend the balance be redressed with more funds channelled to harm reduction.

Some reforms could be undertaken in the short term, with little social controversy. Other reforms are likely to need more time, and only be introduced following trials to demonstrate effectiveness.

Supply Reduction

There is little evidence to suggest that routine drug seizures lead to a reduction in drug consumption and drug-related harm. Rather, increases in cocaine and amphetamine type substances seizures or supplier arrests are signals of increased supply. Meanwhile, the cost of drug law enforcement far outweighs the amount invested in either prevention, treatment or harm reduction measures. According to research published by the UNSW National Drug and Alcohol Research Centre in 2013, of the $1.7 billion spent on illicit drug related measures, about two thirds is spent on law enforcement, with about 9% spent on prevention, 20% on treatment and only 2% on harm reduction.

This is not a rational use of scarce public resources.

We recommend a substantial redirection of drug-related government expenditure from law enforcement to treatment and harm reduction. The treatment of illicit drug use should be considered a health issue, not a criminal justice one.

Demand Reduction

There is also little evidence that current approaches of law enforcement are reducing demand for illicit drugs. Data from the National Drug Strategy Household Drug Survey 2013 show that the number of Australians over the age of 14 who had used illicit drugs in the previous 12 months had increased from 2.7 million (14.7%) in 2010 to 2.9 million (15%) in 2013.

In Switzerland, the Netherlands, and Spain heroin-assisted treatments have proven successful in reducing the demand for blackmarket heroin, as well as reducing crime associated with drug use and improving the health of users .

Canada has recently announced a similar trial to complement its existing opiate substitution therapy (OTS). While there has been relative success in Australia in preventing opiate related harms through OTS, access remains a problem, both in the number of qualified prescribers and participating pharmacies. Access is even more problematic for people living in regional and rural Victoria.

We recommend continued funding of such demand reduction measures, as long as they are based on evidence of effectiveness.

Harm Reduction

We know that humans have taken drugs for centuries, if not millennia. We know that demand for illicit drugs in Australia is not diminishing, despite decades of ‘tough on drugs’ government policies. We also know that efforts to reduce the supply of drugs do not seem to be effective. How, then, should governments respond faced with these uncomfortable facts?

The RSA is not alone is recommending a change to the long time but ineffective prohibitionist stance on illicit drugs. Put simply, prohibition just doesn’t work.

We recognise that a shift in government policy towards a harm reduction approach will need to be incremental in order to demonstrate its benefits to a public indoctrinated with a judgemental attitude.

We recommend increased funding for trials of measures including needle and syringe exchange programs, safe injecting rooms initiatives and pill-testing.

We also recommend funding be directed to programs that improve the public’s understanding of the differing effects of drugs. Currently the influential US-based Schedule II list of ‘drugs of dependence’ fails to differentiate the potential for harm between drugs. We recommend there be a review of this list to better differentiate the potential for harm.

While some organisations, venues and events already engage in proactive drug education, more could be done to better educate users about the potential risks of drug consumption. Distinguishing between the effects, potency, consumption methods and potential for harm of various drugs is essential for reducing drug related incidents and should be incorporated into all drug education. The ‘just don’t touch’ concept inaccurately represents all drugs as equally dangerous and assumes the idea that they are all similar in consumption.

Programs like Dance Wize (part of Harm Reduction Victoria) use peer-to-peer education to offer accurate information about drugs while still warning of the risks of consumption. These approaches are successful because they are evidence-based, peer delivered (informed by the lived experience) and stigma free.

We recommend more funding for better and more timely information to be made available to those who choose to take drugs, so they are better able to manage for themselves the potential risks.

The introduction in 2002 of the Drug Court in Victoria has been a positive initiative for both harm reduction and demand reduction. As the Committee will be aware, the Drug Court focuses on rehabilitation rather than imprisonment, and the supervision of treatment for offenders with drug or alcohol dependency. This in turn helps to ensure community safety over the longer term. The Drug Court was a common sense and evidence-based initiative, based on the positive outcomes in other jurisdictions with similar courts (including in Queensland, New South Wales, Western Australia, South Australia, and a number of states in the United States of America). A KPMG report in December 2014 concluded the court has had considerable success in rehabilitating offenders and improving safety and reducing crime.

However, the court currently operates only in Dandenong and offenders residing outside that area are unable to take advantage of the benefits of the system. We recommend that the Drug Court be expanded so that it operates beyond Dandenong.

Dr Meredith Doig


Rationalist Society of Australia Inc.

All the more reason.