NATIONAL DRUG POLICY: AUSTRALIA
Prepared For The Senate Special Committee On Illegal Drugs
Law and Government Division
20 December 2001
LIBRARY OF PARLIAMENT
NATIONAL DRUG STRATEGY
A. The National Campaign Against Drug Abuse
B. The National Drug Strategy
C. Report on the National Drug Strategy
D. The National Drug Strategic Framework
E. The National Illicit Drug Strategy
F. Assessment of the National Drug Strategy
NATIONAL DRUG POLICY: AUSTRALIA
This paper provides a brief introduction to the national drug policy of Australia. It presents:
· Background information to Australia’s drug policies;
· A review of the National Drug Strategy for the years 1985-2003;
· A review of the cannabis decriminilization measures that have been adopted in some Australian states;
· The Australian legislation with respect to illicit drugs;
· The costs associated with illicit drug use in Australia; and
· Statistical data related to drug use, drug-related offences, Australians’ attitudes towards drug use and drug legalization, and drugs and health.
This paper forms part of a series of country pictures being prepared by the Parliamentary Research Branch of the Library of Parliament for the Special Senate Committee on Illegal Drugs.
Control of illicit drugs has been a global concern since the International Opium Commission, known as the Shanghai Conference of 1909. An Opium Conference at the Hague in 1911 drafted the first treaty which attempted to control opium and cocaine through worldwide agreement, by means of the 1912 Hague Opium Convention. By the terms of the Convention, the parties agreed to limit the manufacture, trade and use of opiate products to medical use, to co-operate in order to restrict use and to enforce restrictions efficiently, to penalize possession, and to prohibit selling to unauthorized persons. From 1920, the Hague Convention was the responsibility of the League of Nations and since 1946 it has been administered by the United Nations.
The second International Opium Convention was concluded in 1925 and came into force in 1928. This Convention established a system of import certificates and export authorizations for the licit international trade in narcotic drugs. A Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, signed in Geneva in 1931, introduced a compulsory estimates system aimed at limiting the world manufacture of drugs to the amounts needed for medical and scientific purposes. The Paris Protocol 1948 ceded to the World Health Organization the power to determine which new drugs should be treated as “dangerous drugs” for the purpose of the 1931 Convention. The Single Convention on Narcotic Drugs 1961 consolidated and further extended control over the international and domestic drug trades. It sought to limit the possession, use, trade, distribution, import, export, manufacture and production of drugs exclusively for medical purposes. It also combated drug trafficking through international cooperation. The Single Convention was instrumental in prompting a major rewriting, updating and extension of legislation at state level. The Convention on Psychotropic Substances 1971 further extended international controls to include a broad range of synthetic behaviour- and mood-altering drugs.()
Australian drug laws, like those of many other countries, closely followed the development of these international drug treaties. The Australian Government ratified the Hague Convention in 1914 and used it as the basis for extending import controls to a range of substances apart from opium. In the 1920s, Australia prohibited the importation and use of cannabis for non-medical purposes, in accordance with the requirements of the 1925 Geneva Convention on Opium and Other Drugs which was the first such convention to cover cannabis.
Up until thelatter part of the 1960s, few law enforcement resources were devoted to policing the drug laws. This was due, in large part, to there being relatively little use – or public awareness – of illicit drugs. By the early 1970s, however, there was an upsurge in the levels of use of illicit drugs. A number of studies reported an increase in the use of cannabis and heroin.() The increase in heroin dependence during the early 1970s corresponded with a marked increase in property crime. It was widely assumed that these developments were linked in some way.
The growth in the illicit drug market created lucrative opportunities for organized crime to become involved in the production and distribution of drugs such as cannabis and heroin. A critical event in this context was the murder of anti-cannabis campaigner Donald Mackay in 1977. This led directly to the establishment in New South Wales of the Royal Commission of Inquiry into Drug Trafficking in 1979 (the Woodward Commission) and, at the federal level, contributed to the decision to set up the Australian Royal Commission of Inquiry into Drugs (the Williams Inquiry), also in 1979.
The drugs initiatives which found favour during the 1970s and early 1980s generally involved raising maximum penalties, creating additional offences, making offences easier to prove, establishing new investigative bodies such as the National Crime Authority, significantly increasing the powers and technology available to law enforcement agencies to detect drug offences, providing for the confiscation of profits, and investing more resources in drug law enforcement. The Woodward Commission, the Williams Inquiry and the Stewart Royal Commission of Inquiry into Drug Trafficking (1983) all offered “more and better law” and improved enforcement as the primary solutions to the problem of illicit drug use.
A change in some of the attitudes towards illicit drug use started in relation to the use of cannabis. In the main, cannabis was little known or used in Australia until the 1960s. Nevertheless the drugs legislation which was introduced in most of the States and Territories towards the end of the 1800s and early 1900s (primarily concerned with the smoking of opium by Chinese people) provided a framework for the prohibition of cannabis. The first Australian controls on cannabis use were introduced in Victoria in 1928 in legislation which penalized the unauthorized use of Indian hemp and resin. This was followed by corresponding legislation in the other jurisdictions. The penalties relating to cannabis cultivation, possession and use were generally quite severe during the 1960s and 1970s.()
The impetus for reform of the cannabis laws in South Australia (see “Cannabis Decriminilization in Australia” below) came out of the recommendations contained in the 1979 report of the South Australian Royal Commission into the Non-Medical Use of Drugs.() The Royal Commission recommended, inter alia, that minor cannabis consumption not be treated as a criminal offence. In making such a recommendation the Royal Commission was able to cite several overseas jurisdictions, including ten states in the USA, which had taken such a step with apparent success.
NATIONAL DRUG STRATEGY()
The inception of the National Campaign Against Drug Abuse (NCADA) in 1985 was a watershed in Australian drug policy and introduced a focus on public health and harm minimization. The NCADA emphasized that drug use should be treated primarily as a health issue. The decision was made deliberately to situate the program within the Federal Department of Health rather than the Federal Attorney General’s Department, due at least in part to the emergence of HIV/AIDS. But the program from the start involved a strong partnership between the Commonwealth (or federal government), States and Territories. It also intended to foster a partnership between health and law enforcement in a comprehensive strategy involving an integrated approach to licit as well as illicit drugs.
One of the major initiatives undertaken was to disseminate information to households throughout Australia about major illicit and licit drugs. A significant part of the campaign was the Drug Offensive which used mass advertising and sponsorship of cultural and sporting events to convey messages about illicit drugs but also about alcohol and tobacco. The philosophy of harm minimization includes the strategies of supply, demand and harm reduction. The mission of Australia’s drug strategy is to improve health, social and economic outcomes by preventing the uptake of harmful drug use and reducing the harmful effects of licit and illicit drugs.
A further principle underlying the new drug strategy was that reliable data, new approaches and evaluation of effort were required. As part of this new effort, the Ministerial Council on Drug Strategy (MCDS) commissioned two independent evaluations of the NCADA to assess progress and make appropriate recommendations. After these two evaluations, one released in 1988 and the other, No Quick Fix, in 1992, the campaign was relaunched as the National Drug Strategy (NDS). Incorporating the recommendations from the two evaluations, the National Drug Strategy continued to stress the importance of harm minimization principles. Some of the goals of the Strategy were to:
· Minimize the level of illness, disease, injury and premature death associated with the use of alcohol, tobacco, pharmaceutical and illicit drugs;
· Minimize the level and impact of criminal drug offences and other drug-related crime, violence and antisocial behaviour within the community;
· Minimize the level of personal and social disruption, loss of quality of life, loss of productivity and other economic costs associated with the inappropriate use of alcohol and other drugs; and
· Prevent the spread of hepatitis, HIV/AIDS and other infectious diseases associated with the unsafe injection of illicit drugs.
The strategic plan identified six specific concepts which were to underpin the development and implementation of drug policy: harm minimization; social justice; maintenance of controls over the supply of drugs; an intersectoral approach; international cooperation; and evaluation and accountability.
Overall responsibility for the broad policy direction and operation of the NDS rests with the MCDS, which comprises both health and law enforcement ministers from each State and Territory as well as from the Commonwealth government. The council meets annually. The National Drug Strategy Committee (NDSC) provides administrative support for the MCDS. It is mandated to develop proposals for the NDS, implement the NDS, develop policy proposals relating to licit and illicit drugs and liaise with other governmental agencies on matters relating to the NDS. It consists of one health and one law enforcement representative from each jurisdiction. The MCDS and NDSC develop national policies and directions which individual jurisdictions then implement as appropriate within their social, political and economic environments.
In 1997 a report evaluating the National Drug Strategy (1993-1997) was produced. This report, entitled The National Drug Strategy: Mapping the Future, lauded the NDS for a unique combination of features which had brought it international attention and acclaim:
· The NDS recognizes the complexity of drug issues and the need to provide front-line health professionals and others dealing with drug problems with a wide range of options based on the concept of harm minimization. These range from abstinence-oriented interventions to programs aimed at ameliorating the consequences of drug use among those who cannot be reasonably expected to stop using drugs at the present time;
· The NDS adopts a comprehensive approach to drugs which encompasses the misuse of licit as well as illicit drugs. Policies and programs to address the problems of illicit drugs, alcohol, tobacco and pharmaceuticals all fall under the aegis of the NDS;
· The NDS approach to drugs stresses the promotion of partnerships – between health, law enforcement, education, nongovernmental organizations, and private industry; and
· The NDS attempts to address drug issues in a balanced fashion. This refers to the appropriate balance of effort between the Commonwealth, States and Territories, a balance between supply and demand reduction strategies, and a balance between treatment, prevention, research and education.
Contrary to the fears of many that harm minimization policies might lead to increased public acceptance and use of illicit drugs, the evaluation found that there was no discernible trend in the use of drugs such as heroin, amphetamines and cocaine, although there was some increase in marijuana use. The NDS was also found to have contributed to the success of the National HIV/AIDS Strategy in reducing the spread of HIV, Hepatitis C and other infectious diseases among intravenous drug users.
Some concerns with the NDS were addressed in the report. One was confusion concerning the meaning of harm minimization. A second was an often confusing array of strategies, advisory committees and working groups on drug-related issues. A third concern was the relative lack of attention to accountability for results. A fourth concern was that nongovernmental organizations were not playing a sufficient role in the NDS. A fifth concern was that day-to-day management of the NDS was fragmented into different offices and there was a high staff turnover.
In order to address these concerns and give the NDS a new sense of purpose, the evaluators proposed the following seven-point plan:
1. Strengthen National Drug Strategy partnerships and expand them to the local level. The cornerstone of the NDS was the promotion of a strong partnership between health and law enforcement. The NDS should now expand the partnerships to nongovernmental organizations and extend the network of health, law enforcement and nongovernmental partnerships to the local level.
2. Establish a dedicated National Drug Strategy unit with the capacity to assist the Ministerial Council for Drug Strategy (MCDS) and the National Drug Strategy Committee (NDSC) in providing leadership and an enhanced ability to properly manage the NDS.
3. Train mainstream health, law enforcement and community officials to effectively minimize drug-related harm.
4. Improve the cost effectiveness of treatment, prevention and research. A significant increase in the number of treatment and prevention programs subject to systematic outcome evaluation was recommended. High priority should continue to be given to research and prevention programs targeted at youth and other high-risk groups.
5. Improve the ability to monitor the performance of the NDS and make new developments in prevention, treatment and research more readily available to health care practitioners, law enforcement officers and the public at large. To do this, the evaluators recommended that an Australian National Clearing House on Drugs be created. This body would create an inventory of drug programs and develop an electronic network of key resource centres for front-line professionals.
6. Enhance the involvement and effectiveness of law enforcement in preventing drug-related harm. Police and courts should continue to give increasingly higher priority to the enforcement of trafficking offences versus possession offences.
7. Redirect cost-shared funding used for ongoing services to the development and dissemination of new programming. There should be secure funding for ongoing specialized services required to deal with drug problems, such as residential and non-residential treatment. NDS funds are only a small part of the total amount of money spent by the Commonwealth and States and Territories for the prevention and/or treatment of drug abuse. They should not be used to fund ongoing services, but rather as a catalyst to develop more effective responses to drug problems in Australia.
The National Drug Strategic Framework maintains the policy principles of the previous phases of the National Drug Strategy and adopts the recommendations of Mapping the Future: An Evaluation of the National Drug Strategy 1993-97. Its focus remains on harm minimization and reflects the desire that a nationally coordinated and integrated approach to reducing the harm arising from the use of licit and illicit drugs, including alcohol, tobacco and pharmaceutical drugs, should continue for another five years. The NDS Framework continues to seek a balance between supply-reduction, demand-reduction and harm-reduction strategies, emphasizing the need for integration of drug law enforcement and crime prevention into all health and other strategies aimed at reducing drug-related harm. It also continues the emphasis on evidence-based practice. All supply-reduction, demand-reduction and harm-reduction strategies should reflect evidence-based practice, which is based on rigorous research and evaluation, including assessment of the cost-effectiveness of interventions. Best practice takes into account the preferences of individual clients, their families and the wider community. This is related to the emphasis in the NDS on social justice. Patterns of drug-related harm show that particular communities and population groups are more affected than others. Strategies for tackling drug-related harm not only must target the particular drug or drugs causing problems but must also be developed with regard to the broader context of the needs of and problems facing the affected community. Levels of employment, health (including mental health) status, homelessness, remoteness, recreation opportunities, cultural considerations, family support, community development, and access to services must all be taken into account.
The coordinating body for national policies and programs remains the MCDS. Some of the objectives of the Framework are the following:
· Increase community understanding of drug-related harm;
· Reduce the supply and use of illicit drugs in the community;
· Prevent the uptake of harmful drug use;
· Reduce the level of risk behaviour associated with drug use;
· Reduce the risks to the community of criminal drug offences and other drug-related crime, violence and anti-social behaviour;
· Reduce the personal and social disruption, loss of quality of life, loss of productivity and other economic costs associated with the harmful use of drugs;
· Increase access to a greater range of high-quality prevention and treatment services; and
· Promote evidence-based practice through research and professional education and training.
This next phase of the NDS places emphasis on extending the partnership between health and law-enforcement agencies to take in a broader range of partners, as recommended in Mapping the Future. Thus the Intergovernmental Committee on Drugs, which consists of health and law‑enforcement officers from each Australian jurisdiction, is expanding to include officers from the portfolios of customs and education. The MCDS will now be supported by the Australian National Council on Drugs, consisting of people with relevant expertise from the government, non-government and community-based sectors to provide policy advice. These bodies will develop a series of National Drug Action Plans which will specify priorities for reducing the harm arising from the use of licit and illicit drugs, strategies for taking action on these priorities, and performance indicators.
In November 1997 the Australian government launched the National Illicit Drug Strategy “Tough on Drugs” as the next major phase of the National Drug Strategy. Its implementation began in 1998. The Strategy encompasses a range of supply reduction and demand reduction measures at a total cost of AUD $516 million. Funding for the Strategy is split between demand-reduction strategies, which are being implemented by the Department of Health and Aged Care and the Department of Education, Training and Youth Affairs, and supply-reduction strategies, which are being implemented by the Attorney-General’s Department, the Australian Federal Police and the Australian Customs Service. $213 million has been allocated for a range of supply reduction measures to intercept more illicit drugs at borders and within Australia. Law enforcement efforts include funding for 10 new Federal Police anti‑drug mobile strike teams to help dismantle drug syndicates within Australia as well as increased funding for the Australian Customs Service to enhance its capacity to intercept drug shipments.
The remaining $303 million has been allocated for demand reduction initiatives which cover five priority areas:
1. Treatment of users of illicit drugs, including identification of best practice.
2. Prevention of illicit drug use.
3. Training and skills development for front line workers who come into contact with drug users.
4. Monitoring and evaluation, including data collection.
In conjunction with the new strategy, the Intergovernmental Committee on Drugs has been established to provide policy advice for government ministers on a full range of drug-related matters.
In June 1999, Commonwealth, State and Territory health and law enforcement Ministers agreed on a national approach to the development of a drug diversion initiative. This is designed to support the diversion of illicit drug users from the criminal justice system into education and treatment. Diversion involves a graduated series of interventions appropriate to the seriousness of the offence and the circumstances of the offender. Diversion is not considered appropriate for trafficking offences. Drug-involved offenders can be cautioned on the streets and provided with treatment referral information if their offence is possession of a small quantity of drugs. They can be sent for assessment or directly to treatment rather than prison, as long as the offence is not serious and they do not pose a threat to society. Courts and correctional systems can also use commitment or referral to community-based treatment as an adjunct to probation or parole from prison. There is also treatment within correctional facilities and corrections-operated or funded therapeutic communities and halfway houses.()
In May 2001, Professor Eric Single appeared before the Special Senate Committee on Drug Policy to present his evaluation of the NDS in Australia. He reiterated much of what his 1997 report Mapping the Future had already stated. He pointed out the unique combination of features which have brought the Australian National Drug Strategy international attention and acclaim. Based on the concept of harm minimization rather than the need to eliminate drug use, the NDS recognizes the complexity of drug issues and the need to provide front-line health professionals and others dealing with drug problems with a wide range of options. These options range from abstinence-oriented interventions to programmes aimed at ameliorating the consequences of drug use among those who cannot reasonably be expected to stop using drugs immediately. The goals, strategies, guiding principles and performance indicators for the NDS are established by a National Drug Strategy Committee. This committee consists of high-level civil servants from health and law enforcement ministries of each state and territory as well as their counterparts from the federal government. This shared decision-making has been seen as a strength of the NDS since it enhances government co-operation and ensures a high level of visibility for the drug strategy.
The Australian NDS has adopted a comprehensive approach to drugs that encompasses the misuse of licit as well as illicit drugs. Australia’s approach to drugs stresses the promotion of partnerships – between health, law enforcement, education, nongovernmental organizations, and private industry. The NDS also attempts to address drug issues in a balanced fashion. This means a balance is attempted in the effort made by the federal government, states and territories, a balance between supply and demand reduction strategies, and a balance between treatment, prevention, research, and education. A sound research infrastructure has been established by the creation of national research centres that are now among the world’s leading institutions on alcohol and drug research.
Professor Single noted that the Australian government had followed up on a number of the recommendations he had made to improve the NDS. For example, the NDS was renewed for five years, funding was increased, a specialized NDS unit was created within the Commonwealth Ministry of Health, and action plans were developed with regard to other recommendations. He concluded that the NDS has led the world through its innovative approach towards harm minimization and the partnership between public health and police.
While the National Drug Strategy provides a general framework for responses to drug problems, drug offences and the associated penalties in Australia are a matter of state and territorial jurisdiction. Some Australian states and territories have adopted cannabis decriminilization measures while others have not.
The first Australian jurisdiction to adopt cannabis decriminilization measures was South Australia. Reform of the cannabis laws in South Australia came with the introduction of the Controlled Substances Act Amendment Act, 1986.() This amendment proposed a number of changes to the Controlled Substances Act, 1984, including the insertion of Section 45a (Expiation of Simple Cannabis Offences). This represented the adoption of a new scheme for the expiation of simple cannabis offences, such as possessing or cultivating small amounts of cannabis for personal use, or possessing implements for using cannabis.
The Cannabis Expiation Notice (CEN) scheme came into effect in South Australia on 30 April 1987. Under this scheme, adults coming to the attention of police for “simple cannabis offences” could be issued with an expiation notice. Offenders were able to avoid prosecution by paying the specified fee or fees (ranging from AUD $50 to AUD $150) within 60 days of the issue of the notice. Failure to pay the specified fees within 60 days could lead to prosecution in court, and the possibility of a conviction being recorded. Underlying the CEN scheme is the rationale that a clear distinction should be made between private users of cannabis and those who are involved in dealing, producing or trafficking in cannabis. This distinction was emphasized at the introduction of the CEN scheme by the simultaneous introduction of more severe penalties for offences relating to the manufacture, production, sale or supply of all drugs of dependence and prohibited substances, including offences relating to larger quantities of cannabis. The CEN scheme was modified by the introduction of the Expiation of Offences Act, 1996 which now provides those served with an expiation notice the option of choosing to be prosecuted in order to contest being given the notice. Previously those served with a notice had to let the payment of expiation fees lapse in order to secure a court appearance to contest the notice. In choosing to be prosecuted, however, people issued a notice have their alleged offence converted from one which can be expiated to one which still carries the possibility of a criminal conviction. For a more detailed description of the cannabis laws in South Australia, see Appendix A.
The Australian Capital Territory (in 1992) and the Northern Territory (in 1996) introduced similar expiation schemes. Victoria implemented a system of cautions for minor cannabis offenders in 1998 and Western Australia has followed with a similar scheme. The changes made in the law are not technically “decriminilization” measures as cannabis possession remains a criminal offence in all Australian jurisdictions. What has been changed is the reduction in the penalty for possessing small amounts of cannabis for personal use to something less than imprisonment.()
The impact of the implementation of an expiation system for minor cannabis offences is best seen in South Australia which has been the subject of a number of evaluation studies. The South Australian Cannabis Expiation Notice (CEN) system began in 1987. The main arguments for an expiation system were the potential cost savings and the reduction of negative social impacts upon convicted minor cannabis offenders. Implicit in the latter view was the belief that the potential harms of using cannabis were outweighed by the harms arising from criminal conviction.
None of the studies upon levels and patterns of cannabis use in South Australia() have found an increase in cannabis use which is attributable to the introduction of the CEN scheme. Cannabis use did increase in South Australia over the period from 1985 to 1995 but this was so throughout Australia, including in jurisdictions with a total prohibition approach to cannabis. In fact, the largest increase in the rate of weekly cannabis use across all Australian jurisdictions occurred in Tasmania, a criminal prohibitionist state, between 1991 and 1995.() A comparative study of minor cannabis offenders in South Australia and Western Australia concluded that both the CEN scheme and the more punitive prohibition approach had little deterrent effect upon cannabis users. Offenders from both jurisdictions reported that an expiation notice or conviction had little or no impact upon subsequent cannabis and other drug use. However, the adverse social consequences of a cannabis conviction far outweighed those of receiving an expiation notice. A significantly higher proportion of those apprehended for cannabis use in Western Australia reported problems with employment, further involvement with the criminal justice system, as well as accommodation and relationship problems.()
In the law enforcement and criminal justice areas, the number of offences for which cannabis expiation notices were issued in South Australia increased from around 6,000 in 1987/88 to approximately 17,000 in 1993/94 and subsequent years. This appears to reflect the greater ease with which police can process minor cannabis offences and a shift away from the use of police discretion in giving offenders informal cautions to a process of formally recording all minor offences. Substantial numbers of offenders still received convictions due to their failure to pay expiation fees on time. This was due in large part to a poor understanding by cannabis users of the legal consequences of not clearing expiation offences and due to financial difficulties. Most CENs are issued for less than 25g of cannabis and half of all CENs issued were received by people in the 18 to 24 year old age group.()
There has been strong support by law enforcement and criminal justice personnel for the CEN scheme. The scheme has proven to be relatively cost-effective and more cost‑effective than prohibition would have been. The total costs associated with the CEN scheme in 1995/96 were estimated to be around AUD $1.24 million while total revenue from fees and fines was estimated to be around AUD $1.68 million. Had a prohibition approach been in place, it is estimated that the total cost would have been around AUD $2.01 million, with revenue from fines of around $1 million.()
A report on the CEN scheme() noted that it appeared to have numerous benefits for the community, not the least of which were cost savings for the community as a whole, reduced negative social impacts for offenders, and greater efficiency and ease in having minor cannabis offences dealt with, associated with less negative views of police held by offenders. Yet the rate of expiation of notices has remained low, compared with other types of infringement notices, at around 45%. In addition to the provision of more payment options for offenders and more detailed information on the financial and legal consequences of non-payment, other suggestions have been made to improve the CEN scheme. A system involving a more graduated scale of expiation fees, including lesser fees for offences involving very small amounts of cannabis, could result in higher rates of expiation. Other suggestions which may reduce the effect of net-widening under an expiation approach are: inclusion of a provision for some form of cautioning for certain categories of minor cannabis offences; and dropping the offence of possession of equipment for using cannabis, as it is a very common offence under the CEN scheme and is mostly detected in the context of CENs being issued for other cannabis offences.
Related to decriminilization efforts is a recognition of the potential medical benefits of the use of marijuana. A recent report commissioned by the New South Wales Government recommended the introduction in that state of a compassionate regime to assist those suffering from a specified range of illnesses to gain the benefits associated with the use of cannabis without facing criminal sanctions. It also recommended further clinical trials and surveys.() A recent report of the Victorian Drug Policy Expert Committee recommended that Victoria Police and the courts use their discretion when dealing with people using cannabis to manage symptoms of serious, debilitating, and often terminal conditions for which there are indications of therapeutic effect.()
Under Australia’s federal structure, criminal law – and responsibility for enforcing drug laws – is primarily the responsibility of State Governments. The Commonwealth, through its participation in a number of international treaties and conventions, has played a critical role in the development of the current framework of drug laws in Australia. The direct legislative and enforcement responsibilities of the Commonwealth, however, have largely been restricted to controlling the entrance of illicit drugs into the country through the operation of the Customs Act 1901.
Three international treaties on illicit drugs have been ratified by Australia. These are: The Single Convention on Narcotic Drugs (1961) and the Protocol (1972); The Convention on Psychotropic Substances (1971); and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988). The obligations in these treaties are carried out in three pieces of federal legislation: the Narcotic Drugs Act 1967; the Psychotropic Substances Act 1976; and the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990. The key feature of the treaties is that signatories are obliged to establish control systems that prohibit the availability of controlled drugs, including cannabis, except for scientific or medical use. There are varying interpretations as to the extent to which the treaties require cannabis use or possession to be sanctioned. However, it is clear that non-incarcerative, and non-criminal, sanctions, do not violate treaty obligations. Thus, expiation schemes do not violate Australia’s treaty obligations. An additional element of the 1971 Convention on Psychotropic Substances is that treatment and rehabilitation are acceptable alternatives to punishment for cannabis related offences.()
The law relating to illicit drugs is made and enforced in Australia on a state and territory level. It varies markedly between jurisdictions but its structure is broadly similar. The key legislation from each jurisdiction is as follows:
New South Wales:
Misuse and Trafficking Act 1985;
Drugs, Poisons and Controlled Substances Act 1981
Drugs Misuse Act 1986; Drug Rehabilitation (Court Diversion) Act 2000
Misuse of Drugs Act 1981
Controlled Substances Act 1984
Poisons Act 1971
Drugs of Dependence Act 1990
Australian Capital Territory:
Drugs of Dependence Act 1989
Customs Act 1901
Narcotic Drugs Act 1967
Psychotropic Substances Act 1976
Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990()
Each Act creates, in one form or another, the basic offences of possession, use, cultivation, production and trafficking, supplying and selling. The Acts also contain lengthy schedules, derived from various international conventions, listing which drugs are prohibited, and defining various amounts, such as “trafficable” and “commercial” quantities. These quantities are used to determine maximum penalties for sentencing purposes.
The typical maximum penalties for the more serious offences, such as trafficking in “commercial quantities,” are in the range of 25 years to life, although most jurisdictions apart from Queensland set lower maximums for offences involving cannabis. Most Acts provide for persons who have been found guilty of simple possession and/or use offences to receive a term of imprisonment, but it is very uncommon now for this penalty to be imposed. Particularly for the less serious offences, there is often a very substantial gap in sentencing between the “law on the books” and the “law in practice.” For example, in Queensland, where the offence of possession carries a notional maximum penalty of 15 years imprisonment and a maximum fine of AUD $300,000, the standard penalty applied in the Magistrates Court – where the overwhelming majority of possession charges are heard – is a fine of a few hundred dollars, often with no conviction being recorded.()
Since 1987 in South Australia, 1992 in the Australian Capital Territory, and 1996 in the Northern Territory, people detected committing “minor” cannabis offences have been able to avoid a court appearance altogether by paying a relatively modest “on-the-spot” fine. While cannabis possession is still prohibited, it is sanctioned by a civil, not a criminal, penalty. In addition, Victorian legislation provides for the imposition of pre-conviction bonds for first offenders charged with minor drug offences (Drugs Poisons and Controlled Substances Act 1981, s. 76). First offenders are given a bond, and no conviction is recorded if the bond conditions are complied with. But in Victoria, New South Wales, Tasmania, Queensland, and Western Australia all cannabis possession, use and supply is criminally prohibited with criminal penalties being imposed. In addition, in all jurisdictions the penalties imposed for commercial dealing are still very substantial, especially for offences at the upper end of the scale.
In the civil prohibitionist jurisdictions, the offences attracting a civil infringement notice include possession of small amounts of cannabis plant (up to 100g in South Australia, 25g in the Australian Capital Territory, and 50g in the Northern Territory) and cultivation of cannabis plants (up to three in South Australia, five in the Australian Capital Territory, and two in the Northern Territory). Failure to pay the fines may result in court appearances and subsequent conviction. The criminal prohibitionist jurisdictions have also recently adopted “diversionary” cautioning procedures which allow first or second time cannabis possession/use offenders to receive a caution or education/counselling session instead of the normal court appearance. “Drug Courts” have been established in four Australian jurisdictions – Queensland, New South Wales, South Australia, and Victoria. In Queensland and New South Wales these “diversionary” courts have been established by legislation while in South Australia and Victoria they operate on a less formalized basis.() For a more detailed description of the legislative approaches in Australian jurisdictions, see Appendix B.
A notable feature of Australian drug laws is the use of provisions which contravene the long-established principle that the burden of proof in criminal cases should be on the prosecution to prove each element of the offence beyond reasonable doubt. For example, the Drugs Misuse Act 1986 (Queensland) contains a “deeming provision” for the offence of possession. This means that, if a prohibited drug is found on someone’s premises, this will be regarded as conclusive evidence that the drug was in the possession of the occupier, unless he or she can persuade the court that they “neither knew nor had reason to suspect that the drug was in or on that place” (s. 57(c)). Another example is s. 235 of the Commonwealth Customs Act 1901. This provision requires a person who has more than a certain quantity of drugs in his or her possession to prove, on the balance of probabilities, that he or she did not intend to engage in commercial dealings in relation to those drugs. If the person cannot prove this, they will be sentenced on the basis that they had an intention to traffic.
Another aspect of Australian drug laws to note is the wide range of powers which are available to police and other law enforcement bodies to detect and investigate drug offences. Under the Queensland Drugs Misuse Act 1986, for example, police have had the power in relation to any quantity of any illegal drug to: stop, search, seize and remove motor vehicles; detain and search persons; order internal body searches; and enter and search premises with or without a warrant (s. 18). In addition, for offences such as drug trafficking, Queensland police are empowered to apply to a court to have listening devices installed on private premises.
For law enforcement bodies operating at the federal level, and in most states other than Queensland, telecommunications interception powers are also available for the investigation of serious drug offences under the Commonwealth Telecommunications (Interception) Act 1979. When law enforcement agencies were first given access to these powers during the 1980s, the powers were made available primarily for the purpose of tackling the problem of organized drug trafficking.
Over the last decade, most jurisdictions have also passed confiscation of profits legislation which can be used to attack the assets of drug traffickers and producers. In most cases this action can be taken only after the person has been convicted, but in New South Wales a confiscation order can be made without requiring a conviction, where the Supreme Court is satisfied that “it is more probable than not” that the person has engaged in drug-related activities (Criminal Assets Recovery Act 1990).
In financial terms, Commonwealth and State Government expenditure in response to illicit drugs in 1992 was estimated at AUD $620 million. Of this sum, 84% was allocated to law enforcement, 6% to treatment, and 10% to prevention and research. Commonwealth and state expenditure on methadone programs has been estimated at AUD $30 million per year. In 1991, Australian expenditure on needle syringe programs was estimated at AUD $10 million. It is likely that expenditure on needle syringe programs in Australia doubled between 1991 and the turn of the century.()
Based on various more recent estimates, it is likely that more than AUD $200 million is spent annually in the health and social welfare sectors by governments as a direct or indirect result of the illicit drugs trade.() It is estimated that AUD $450 to AUD $500 million is the annual cost to the criminal justice system incurred by illicit drugs.() It is estimated that more than AUD $312 million is raised each year by heroin users/dealers through property crime.() Law enforcement estimates suggest that drugs generate at least AUD $2 billion annually within Australia. In addition, it has been suggested that a significant proportion of the estimated AUD $3.5 billion laundered in and through Australia each year can be attributed to illicit drugs.()
The economic costs associated with the prevention and treatment of drug-related illness, loss of productivity in the workplace, property crime, theft, accidents and law enforcement activities are over AUD $18 billion annually.()
In a study of the social impacts of a conviction for a minor cannabis offence on first time offenders, a significant minority of the sample were shown to develop less favourable attitudes towards police and there was evidence that many respondents had experienced adverse consequences in terms of employment, further problems with the law, and problems in relationships and accommodation.()
A cost of making cannabis illegal is that when cannabis users go to the
existing illicit market to buy their cannabis, they are exposed to a range of
other potentially more harmful illicit drugs which are available for sale.
Another cost is the involvement of organized crime in large scale cannabis
production and distribution in Australia. Finally, the illicit drug
market generates a sizeable cash economy. It is not too surprising that
some police officers become involved in corrupt activities such as drug use,
drug dealing, protection of drug dealers, theft of drugs and/or money, and the
presentation of false evidence in court.()
The Australian Institute of Health and Welfare conducts a National Drug Strategy Household Survey (NDSHS) every 2-3 years. This survey has been conducted since 1985 with the seventh survey taking place in 2001. The last survey for which results are available took place in 1998.() 10,300 Australians aged 14 years and older participated in the NDSHS. Respondents were asked about their knowledge of drugs, their attitudes towards drugs, their drug consumption histories, and related behaviours.
The results from the NDSHS in 1998 indicate that approximately 46% of the Australian population had used an illicit drug at some time, while 23% of Australians reported using any illicit drug in the twelve months preceding the survey. Marijuana was the most common illicit drug used, with 39.1% of those aged 14 years and over having used the drug at some time in their lives and 17.9% having used it recently. Of those who had used marijuana, almost half had used in the past 12 months. The prevalence of lifetime use of pain‑killers/analgesics (for non-medical purposes) was 11.5%, followed by hallucinogens (9.9%) and amphetamines (8.8%). Only 2.2% of the Australian population had ever used heroin, with 0.8% reporting recent usage. The prevalence of cocaine use was slightly higher, with lifetime use in 4.3% of the respondents and recent use in 1.4%. For a summary of illicit drug use in Australia, as taken from the 1998 NDSHS, see Appendix C.
In 1991, 32.5% of the population aged 14 years and over had tried marijuana. By 1998, this figure had increased to 39.1%. Other drugs that recorded increased use include cocaine, ecstasy/designer drugs, LSD/synthetic hallucinogens and heroin. The only drug to record any sustainable decline was barbiturates, with the number of those who had tried the drug falling substantially after 1991 but then stabilizing. For a summary of the trends in lifetime use of illicit drugs in Australia, see Appendix D. For a summary of the trends in recent use of illicit drugs in Australia, see Appendix E.
Statistics specific to Australian youth are gathered. The second national survey on the use of over-the-counter and illicit substances by secondary students was conducted in 1999. The survey collected data from 25,480 students aged 12-17 years from 434 secondary schools throughout Australia. According to the survey, substance use increased with age for all substances except for inhalants and steroids. Across all ages, the most common substances used were analgesics (for medical and non-medical purposes), with at least 95% of those surveyed reporting the use of this substance. Marijuana use was also relatively high, particularly among those aged 16-17 years, who were more likely than the general community to use marijuana (47% versus 39%). Overall, a similar number of male and female students had tried the substances surveyed. However, slightly more males (32%) than females (29%) had used marijuana, while slightly more females than males had used analgesics for any purpose (98% versus 96%). Apart from these two substances, lifetime and recent illicit substance use was similar for both males and females. For a summary of lifetime use of illicit drugs by secondary school students aged 12-17 years, see Appendix F. For a summary of illicit drug use in the past 12 months amongst secondary school students aged 12-17 years, see Appendix G.
Marijuana/cannabis is consistently the most common drug for which people are arrested in Australia, accounting for 70% of all illicit drug arrests in 1998-99. However, the number of persons arrested for either the possession or supply of marijuana has fallen sharply from almost 79,000 in 1995-96 to approximately 58,000 in 1998-99. A table providing figures for both arrests and notices (such as CENs) in Australia in 1997-98 is provided in Appendix H. Arrests for the possession or supply of heroin, amphetamines and cocaine, though, have increased steadily. The vast majority of illicit drug arrests (79%) are related to their consumption, rather than their provision or sale. However, the percentage of those arrested for consumption rather than provision differs depending on the drug involved. For a summary of the number and proportion of illicit drug arrests by type of drug in Australia, see Appendix I. For a summary of the number and proportion of total arrests involving illicit drugs, by consumer/provider status and drug type in Australia, see Appendix J.
The most common drug-related offence for which people were imprisoned was dealing/trafficking drugs. Of the 1,663 people in prison in 1999 for drug-related offences, 78% were imprisoned for dealing/trafficking offences, with a further 11% imprisoned for possession/use of illicit drugs. The proportion of the total prison population imprisoned for drug-related offences has been steadily declining, from 11% in 1995 to 9% in 1999. People imprisoned for possession/use of drugs has remained stable over the past five years at 1%, while the proportion of those in prison for dealing/trafficking drugs and manufacturing/growing drugs is steadily decreasing. The number of cannabis offences per 100,000 population recorded throughout Australia fell by more than 1,000 between 1995-96 and 1998-99. For a summary of the numbers of prisoners where the most serious offence was drug-related, see Appendix K. For a summary of cannabis offences per 100,000 population, see Appendix L.
The regular use of illicit drugs was not considered to be acceptable amongst the vast majority of the respondents in the 1998 NDSHS. Males were more likely to accept regular illicit drug use than were females. Marijuana was the most widely accepted illicit drug, with 30.5% of males and 20.6% of females supporting regular use. Inhalants tended to be the least acceptable illicit substances, with only 1.7% of males and 0.3% of females finding regular inhalant use acceptable. For a summary of the acceptability of regular use of illicit and licit drugs amongst Australians, see Appendix M.
Support for the legalization of illicit drugs follows a similar pattern to
that of the acceptability of regular illicit drug use. The legalization
of marijuana was supported by 33.8% of males and 25.1% of females.
By contrast, support for the legalization of heroin, amphetamines and cocaine
was less popular. Only 7% of males and 5.1% of females supported the
legalization of cocaine. Those who supported the legalization of heroin,
amphetamines and cocaine were generally aged 20-29 and 40-49 years. For
a summary of the support amongst Australians for the legalization of selected
drugs by age group, see Appendix N.
In 1998, 1,023 deaths were related to the use of illicit drugs. In 1997-98 slightly over 200,000 hospital episodes were attributable to drug use. Of these, 7% were due to illicit drug use. For a summary of the numbers of deaths attributable to drug use, by drug and cause of death, see Appendix O. For a summary of the number of hospital episodes attributable to drug use, see Appendix P.
Drug overdose deaths in Australia have increased significantly during the last thirty years. Opioid overdose deaths increased from six in 1964 (1.3 per million population aged 15-44 years) to six hundred in 1997 (71.5 per million population aged 15-44 years). This represents a 55-fold increase in the rate of opioid overdose deaths over this 33-year period. The proportion of all deaths attributed to opioid overdose increased from 0.08% in 1964 to 7.26% in 1997. Between 1991 and 1997, the number of overdose deaths in Australia doubled.() Figures for 1998 indicate that 87 deaths per million population could be attributed to an opioid overdose.() For a chart of opioid overdose deaths in Australia from 1988 to 1998, see Appendix Q.
Establishing and maintaining control of HIV infection among injecting drug users in Australia has been a major public health achievement. HIV prevalence was 0.2% among inmates received into Australian prisons between 1991 and 1997. This is about three times higher than HIV prevalence in the general community. As at least 50% of inmates in Australian prisons are serving sentences for drug-related offences, the sustained low prevalence of HIV among inmates is a very strong indicator that HIV prevalence (and incidence) remains very low among injecting drug-users in the community.()
There is also growing evidence to suggest there is a substantial reduction in new infections of Hepatitis C among injecting drug users. The prevalence of Hepatitis C among drug users with a history of injecting for less than three years appears to be declining, suggesting that the number of new infections in this population is falling. Following the recognition of the magnitude of the HIV threat to Australia in the early 1980s, law enforcement officials have generally been very discriminating when policing in the vicinity of needle exchange and methadone programs.()
The Cannabis Laws in South Australia
Source: Robert Ali et al., The Social Impacts of the Cannabis Expiation Notice Scheme in South Australia, Department of Health and Aged Care, Canberra, May 1998, pp. 55-60.
Legislative Approaches in the Australian States and Territories (and Other Relevant Non-legislative Initiatives)
Source: M. Rickard, Reforming the Old and Refining the New: A Critical Overview of Australian Approaches to Cannabis, Department of the Parliamentary Library, Information and Research Services, Research Paper No. 6 2001-02, 2001, pp. 42-44.
Summary of Illicit Drug Use in Australia, 1998
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 18.
Summary of Lifetime Use of Illicit Drugs:
Proportion of the Population Aged 14 Years and Over, By Drug Type and Year, Australia, 1991 to 1998
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 20.
Illicit Drug Use in the Preceding 12 Months:
Proportion of the Population Aged 14 Years and Over, Australia, 1991 to 1998
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 21.
Summary of Lifetime Use of Illicit Drugs, Secondary School Students Aged 12-17 Years, Australia, 1999
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 47.
Summary of Illicit Drug Use in the Past 12 Months, Secondary School Students Aged 12-17 Years, Australia, 1999
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 48.
Cannabis Consumer and Provider Arrest Episodes by State and Territory 1997-98
Source: Curtin University of Technology, National Drug Research Institute, The Regulation of Cannabis Possession, Use and Supply, A discussion document prepared for The Drugs and Crime Prevention Committee of The Parliament of Victoria, Perth, 2000, p. 113.
Number and Proportion of Illicit Drug Arrests, By Type of Drug, Australia, 1995-1996 to 1998-99
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 54.
Number and Proportion of Total Arrests Involving Illicit Drugs, By Consumer/Provider Status and Drug Type, Australia, 1995-96 to 1998-99
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 54.
Prisoners Where the Most Serious Offence was Drug-Related, by State and Territory, Australia, 1995 to 1999
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 55.
Cannabis Offences per 100,000 Population, by State and Territory, Australia, 1995-96 to 1998-99
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 57.
Acceptability of Regular Use of Illicit and Licit Drugs:
Proportion of the Population Aged 14 Years and Over, by Sex, Australia, 1998
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 22.
Support for the Legalization of Selected Drugs:
Proportion of the Population Aged 14 Years and Over, by Age Group and Sex, Australia, 1998
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 23.
Deaths Attributable to Drug Use, by Drug and Cause of Death, 1998
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 38.
Hospital Episodes Attributable to Drug Use, by Drug Involved and Principal Diagnosis, Australia, 1997-98
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 39.
Deaths caused by accidental opioid overdose, persons aged 15-44 years, Australia, 1988 to 1998
Source: M. Miller and G. Draper, Statistics on Drug Use in Australia 2000, Australian Institute of Health and Welfare, Canberra, 2001, p. 43.
() For a summary of international efforts to control illicit drugs see: John McFarlane, “Drug Trafficking in South-East Asia: Security Issues,” in Geoffrey Stokes, Peter Chalk, and Karen Gillen, eds., Drugs and Democracy: In Search of New Directions, Melbourne University Press, Carlton South, Victoria, 2000, pp. 51-55.
() See Eric Single and Timothy Rohl, The National Drug Strategy: Mapping the Future, A Report commissioned by the Ministerial Council on Drug Strategy, Canberra, April 1997. Available online at: http://www.health.gov.au/pubhlth/publicat/document/mapping.pdf.
() For further details see: Ministerial Council on Drug Strategy, National Drug Strategic Framework 1998-99 to 2002-03: Building Partnerships, Prepared for the Ministerial Council by a joint steering committee of the Intergovernmental Committee on Drugs and the Australian National Council on Drugs, Canberra, November 1998. Available online at:
() For further details on the National Illicit Drug Strategy see the Australian Department of Health and Aged Care Website: http://www.health.gov.au/pubhlth/strateg/drugs/illicit.
() For further information see: Ministerial Council on Drug Strategy, National Action Plan on Illicit Drugs, 2001 to 2002-03, Prepared by the National Expert Advisory Committee on Illegal Drugs, Canberra, July 2001. Available online at:
() For further information see: Eric Single, The Australian Experience and its Implications to Canadian Drug Policy,Presentation to the Special Senate Committee on Drug Policy, May 14, 2001. Available online at:
() For further details on this topic see: Eric Single, Paul Christie and Robert Ali, “The Impact of Cannabis Decriminilisation in Australia and the United States,” Journal of Public Health Policy, 21,2, Summer, 2000, pp. 157-186. Available online at:
() For further information on the Cannabis Expiation Notice scheme in South Australia see: Paul Christie, Cannabis Offences Under the Cannabis Expiation Notice Scheme in South Australia, Department of Health and Aged Care, Canberra, May 1998. Available online at:
() Single, Christie, and Ali, supra, Notes 3, 11, 12, 18, 19, and 50. See also Maurice Rickard, Reforming the Old and Refining the New: A Critical Overview of Australian Approaches to Cannabis, Department of the Parliamentary Library, Information and Research Services, Research Paper No. 6 2001-02, 2001, p. 29. Available online at: http://www.aph.gov.au/library (listed under Research Papers).
() National Drug Research Institute, Curtin University of Technology, The Regulation of Cannabis Possession, Use and Supply, A discussion document prepared for The Drugs and Crime Prevention Committee of The Parliament of Victoria, Perth, Western Australia, 2000, p. xxxiv.
() Ibid., p. 117. See also: Adam Sutton and Stephen James, “Law Enforcement and Accountability,” in Drugs and Democracy, supra, p. 163 where an estimate of AUD $404 million is given for the annual cost to the Commonwealth, States and Territories of enforcing laws against illicit drugs.
Megge Miller, and Glenn Draper, Statistics on Drug Use in Australia 2000,
Australian Institute of Health and Welfare, Canberra, May 2001.
Available online at:
For detailed results of the 1998 NDSHS see: Pramod Adhikari and Amber
Summerill, 1998 National Drug Strategy Household Survey: Detailed
Findings, Australian Institute of Health and Welfare (Drug Statistics
Series No. 6), Canberra, October 2000. Available online at: