The Drugs of Dependence (Personal Use) Amendment Bill now before the ACT Legislative Assembly proposes to decriminalise the possession of a range of commonly used illicit drugs, including heroin, cocaine, amphetamines and ecstasy. A recent survey by the Uniting Church found that by a wide margin the ACT community supports such a measure.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
Treating mere possession as a crime makes overdose more likely, discourages help or treatment, and can lead to life-long stigma.
Under the Bill, possession of these substances for personal use will be subject to no more than a $100 fine and will not result in a criminal record. A similar system worked well in relation to cannabis for many years.
However, the ACT government proposes to limit the reform to possession of a "small quantity", well below amounts which the ACT law currently defines as possession.
Those caught with more than a "small quantity" of these drugs in their possession, but below what are termed "traffickable quantities", will continue to be subject to the criminal law: a maximum penalty of $7500 and/or two years' imprisonment.
Rachel Stephen-Smith, the ACT Minister for Health, argued in the Assembly that anyone found with more than a "small quantity" in their possession must really be a dealer.
This contradicts research commissioned by the ACT government itself, which concluded that the threshold that separated "personal use" from "traffickable quantities" was too low.
In response, the government some years ago increased the personal possession threshold to a more realistic level. Now in a puzzling about-face, it seems to want to second guess that decision.
The Minister is right, up to a point: average users probably only purchase or consume a "small quantity" of these drugs at any one time. But there is a very wide range of patterns of drug use.
By low-balling what counts as personal use, the proposed law will actively discriminate against a range of regular and heavy drug users. Yet this is the group most at risk of overdose, most in need of treatment, and most likely to be caught up in the criminal justice system
Many people will consume more than "average", at least on occasion; others purchase multiple sessions-worth for their own personal use or to share with friends. A 2022 study concluded that crude simplifications based on statistical norms do not account for the heterogeneity of drug use' and risk the immeasurable cost of injustice.
Why should law reform take into account the behaviour of heavy or atypical users? Because any harm minimisation measure should benefit the least well-off members of our community.
The most vulnerable drug users in the ACT should be the focus of any change to the law. By low-balling what counts as personal use, the proposed law will actively discriminate against a range of regular and heavy drug users.
Yet this is the group most at risk of overdose, most in need of treatment, and most likely to be caught up in the criminal justice system. A harm minimisation initiative that explicitly excludes those most at risk of harm is like a fire alarm that stops working when the fire gets too hot.
READ MORE:
Indeed, if we introduce a new legal distinction between a "small quantity" of decriminalised drugs and personal possession of larger amounts (still a crime), authorities may be encouraged to impose harsher sanctions on those charged under the latter category. This is not harm minimisation at all.
So why is the ACT government determined to bake half a cake? This is where it gets complicated. There is an underlying legal anomaly only briefly alluded to in the recent Legislative Assembly debate. As noted above, some years ago ACT law raised the thresholds that distinguish personal possession from trafficking: for example by raising the definition of possession from 2g heroin to 5g heroin, and so on. Commonwealth drug offences did not follow suit. Since then, there has been a divergence between territory and Commonwealth laws - those found in possession of between two and five grams of heroin, for example, can be charged with possession under ACT law or with the much more serious crime of trafficking under Commonwealth law.
Decriminalisation doesn't create this anomaly, but it does heighten the disparity in the penalties.
The ACT government proposal attempts to lower the stakes, by ensuring that the grey area in the middle remains a crime under both laws.
Yet Commonwealth drug law specifically confirms the application of territory laws, even where the penalty is lower. It does so precisely because such an approach "allows for drug users to be diverted from the criminal justice system".
Our Chief Minister worries that full-scale decriminalisation - including in the grey area - will open a "loophole for drug dealers carrying larger amounts".
The evidence to support this claim is not clear, and relies on a distinction between users and dealers which does not reflect reality in the ACT.
Nevertheless, faced with the prospect of effectively letting off minor dealers, it is easy to see why police and prosecutors might want to preserve the option of criminal charges.
The so-called loophole, however, does not exist.
Trafficking, sale and supply are and will remain illegal in the ACT - including in relation to amounts below whatever threshold is chosen. True, police would not be able to resort to the legal shorthand of defined quantities to prove their case. That would not be a bad thing.
The use of threshold quantities is a crude and inaccurate tool at best.
It forces people found with these amounts in their possession to prove their innocence, undermining our most fundamental legal principles. Few countries in the world now rely on it.
It's time to come clean with how we're treating those who use these drugs. If they're dealers, they can still be prosecuted under Territory law. If they're not, then they should not be treated as criminals.
That's a back-handed solution to a non-existent problem.
To be truly worthy of the name, decriminalisation must remove personal possession from the criminal law entirely and not merely in relation to a subset of individuals who use only small quantities.
The public servant who takes the occasional tab of ecstasy on a Saturday night might well breathe a sigh of relief if the ACT government's bill passes. But those who are most at risk from the criminal justice system and whose drug use creates the most personal and health problems for them, will sigh in disappointment.
For them, it looks like one step forward, two steps back.
- Professor Desmond Manderson, Professor Helen Keane and Associate Professor Anna Olsen are founding members of the ANU Drug Policy Research Network
Our coverage of the health and safety aspects of this outbreak of COVID-19 in the ACT is free for anyone to access. However, we depend on subscription revenue to support our journalism. If you are able, please subscribe here. If you are already a subscriber, thank you for your support. You can also sign up for our newsletters for regular updates.
