“The war on drugs has failed” is a common catchphrase these days. Ever-increasing numbers within the community are coming to realise that the great edifice of heavily enforced drug prohibition is more destructive on a societal and individual level than the substances it was supposed to eradicate.
So, what we have is a growing population that understands the futility of the Australian prohibitive drug law framework, yet these laws continue to be applied to them – quite often in a discriminatory manner – with no real sign of reform, except in the capital territory.
Medical professionals, church groups and peer support workers have long been calling for drug law reform. Government ministers and police management are starting to join the chorus on retirement. But, of late, it’s legal professionals who’ve been stepping to the fore calling for change.
Indeed, the Australian Lawyers Alliance (ALA) has just released its policy report on Australian drug laws. And the national association of lawyers asserts that as the current laws to stop drug use are a “clear failure”, this nation needs drug law reform right now.
More harm than good
Released on the 4 March, ALA’s Doing More Harm Than Good report asserts that the laws prohibiting and criminalising drugs in this country are actually causing debilitating harms to people who use drugs and their families, as well as the broader Australian community.
Rather than curb drug use, the outlawing of these substances has increased it. And due to the illegal status of psychoactive drugs, huge criminal networks have been established to produce and distribute them in an unregulated manner, with no quality control or age restrictions.
At the very least, the Australian Lawyers Alliance is calling for drug decriminalisation, which involves removing personal drug possession and use from criminal offences, and dealing with circumstances of detection via a system of fining, counselling or, in cases where it’s needed, treatment.
Portugal implemented a policy of drug decriminalisation nationwide in 2001. Those found in possession of illegal drugs are sent to a dissuasion panel to ascertain if they need assistance. And the internationally lauded system was accompanied by strong investment in treatment services.
A misguided deviation
ALA criminal justice spokesperson Greg Barns SC sets out that in moving towards decriminalisation, the preferred drug law position would see the nation establishing a system of legal and regulated drug use.
Legalisation can sound extreme to individuals who have lived under drug prohibition their entire lives, but it’s important to note that the foundations of the prohibitive system are only a century old, while the enhanced law enforcement aspect of the drug war was launched in this country in 1976.
Sydney Criminal Lawyers spoke to Australian barrister Greg Barns SC about the unnecessary burden our flawed drug laws are placing on the court system, the lessons learnt from legalising cannabis, and the duty of legal professionals to speak out about unjust laws.
Firstly, the Australian Lawyers Alliance released its Doing More Harm Than Good report last Thursday. It outlines that drug policies in this country are ineffective and the time for drug law reform is overdue.
The report opens with a quote from the NSW state coroner’s inquiry into music festival deaths, which posits that prohibition and drug criminalisation not only cause harm, but the harm is “an intrinsic part of our current regulatory framework”.
Mr Barns can you elaborate on the way our current laws are essentially harmful?
The laws are harmful because they don’t serve the purpose for which they were devised. They were devised to curtail the use of illicit drugs in Australia. All the data indicates that drug use has not diminished at all.
Of course, as we know in some respects and in relation to some drugs, drug use has increased.
It’s also the fact that drug laws in Australia are criminalising those who are dealing with addiction and even social and recreational users. So, this is turning people, particularly young people, into criminals.
You’re a barrister. One of your specialties is criminal law. So, I presume you’ve had frontline experience with the impact drug laws can have.
What have you experienced in the courtroom that reveals a need for drug law reform?
There is an air of unreality in the way in which the courts are forced to deal with drug laws.
Judges and magistrates talk about the evil of drugs, and the need to send a message to the community that drug trafficking won’t be tolerated. But they know there’s no evidence to suggest that the law is effective in curtailing drug trafficking.
So, there is an air of unreality about it.
Secondly, we waste a huge amount of court time in dealing with people for drug possession offences, when they should be treated as a health and lifestyle issue.
Much of the work of magistrates, or judges in local courts, is dealing with matters, which, essentially, are a health or lifestyle issue.
A major criticism of the current system put forth by ALA is that the criminalisation of drugs is actually preventing people from seeking treatment. How does that work?
People are less likely to seek treatment if they think they’re going to be charged with a criminal offence.
Also, people tend to hide their drug habits, again, because they don’t want to be detected, as it’s seen to be a criminal offence, rather than something that can be dealt with by the health system.
The other issue is the lack of support networks within the health systems themselves. Most of the focus by governments is on law enforcement. It is not on health.
The ACT is currently considering a piece of legislation that if passed would decriminalise the personal possession and use of drugs.
In its report, ALA asserts that at the very least this model of drug law reform should be rolled out nationwide.
In your opinion, if the decriminalisation bill in Canberra passes, what sort of an impact is that going to have for the capital territory compared to the rest of the country?
The first thing will be enormous savings in its courts, because you won’t have lists clogged up with cases of possession and use, or even the small-scale selling of drugs.
The second point is you are likely to see, as in Portugal – which decriminalised drugs two decades ago – a decline in drug use in the ACT.
One of the reasons for that is, if it’s treated as a health issue, some people give it away, while others find they can curtail their use without eliminating it all together.
But according to ALA, the ideal drug policy reform position is the legalisation of all drugs. This idea can be quite confronting for many who’ve always known drug prohibition.
Decriminalisation prevents people who use drugs from being prosecuted and it removes barriers to them seeking treatment. So, why not just stop there?
Why is it preferable to see these drugs that people have been taught to fear be made legal?
When you talk about legalising drugs, you’re not talking about selling ice on the streets. That’s the first myth. In fact, ice is a product of prohibition.
Simple economics tells us that if you prohibit a product, you create super profits, which, of course, then attracts criminal elements. And drug trafficking thrives on the fact that drugs are illegal.
Cannabis is a good example. What we have seen in the United States is a reduction in trafficking and a reduction in the association between drugs and crime.
So, what we’re talking about here is that we legalise drugs in the same sense that we legalise poisons and regulate them, and in the same way that we regulate other drugs, such as alcohol and tobacco.
No one suggests that we ought to prohibit the use of alcohol, yet alcohol is a much more harmful drug than some of those that are currently illegal.
But through community education and smart policies in the health space, you can encourage people to drink less.
In relation to cannabis, if you were able to legalise cannabis, you would be able to control the quality of the product, but also, you can run campaigns about the issues relating to becoming addicted to cannabis, which is much more difficult to do when you have a “just say no” message.
Speaking of legal cannabis, the personal possession and use of cannabis has been legal in the ACT since 31 January 2020. It would seem many Australians remain unaware of this. Indeed, not too much has been said about the situation in general.
What do you think the experience of the partial legalisation of cannabis in the ACT tells us about how these other reforms might impact communities around the nation?
It’s early days. But what I would say is there has been no sky falling in over Canberra. Those who said it was a dumb idea, and you were going to get a whole lot of people out smoking cannabis on the streets, were misplaced.
If you look at the United States, Canada, and some parts of Latin America, what you are seeing is cannabis being legalised, becoming a source of revenue for government, the quality is better, it’s being used for medical purposes and people have easy access to it.
It’s sensible, rational policy. And as I said in relation to the United States, you’re also seeing a reduction in crime in some sectors.
And lastly, calls for drug law reform are not new. But the growing numbers of lawyers throwing their support behind the campaign seems to be.
Mr Barns, as a lawyer, what would you say to others in the legal profession still sitting on the fence? And further, as the issue is intrinsically linked to the profession, do you think lawyers have an obligation to speak up about it?
Lawyers should definitely be speaking up about it. The current policy settings are broken. No one believes that they work.
A very senior judge once said to me that every time he sentences a drug trafficker, he creates a vacancy in the market. And that’s essentially it.
It’s a flawed and broken policy. It serves no purpose in terms of deterrence. It does not reduce the number of people using drugs. So, why do we have these laws?
Lawyers should always be pointing out laws that are unjust, that are irrational and that don’t have the desired effect. That is part of our role.
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.