Illegal drug regulation in Australia: ‘It’s almost unethical not to revisit this’

December 14, 2022
The symposium panellists were (from left) Professor Arthur Christopoulos, Nicholas Cowdery, the Hon (Acting) Justice Richard Refshauge and Professor Carla Treloar. Images supplied.

Australian Academy of Law and Australian Academy of Science Joint Symposium 2022

How Australia should regulate illegal drugs is a debate that continues—with more than 150,000 people arrested each year.

Over the past few years, support for decriminalisation has grown in Australia and around the world. Governments are starting to introduce harm-minimisation approaches. But what steps do we need to take to enact this, and what are the challenges?

The Australian Academy of Science and the Australian Academy of Law recently brought experts from the legal system and scientific and social health researchers together. The panellists’ unique perspectives shed light on how Australia continues to treat addiction as a criminal act and not as a health issue.

Chief Justice of the ACT Lucy McCallum chaired the discussion around how an outdated prosecution system worsens health equity, hurts society, causes more physiological harm than good, and what we need to do to change it.

Following are some edited excerpts from the panel, with the full recording available below.

The Hon (Acting) Justice Richard Refshauge FAA

The Hon Refshauge is a former judge and public prosecutor for drug-related crimes. He provided an insight into the history of drug laws and the prejudice that underpinned the definition of what is legal and what isn’t.

He noted that the earliest recorded history of drug use was around the time of the Egyptian Empire, when opium and hash were used predominately for medicinal purposes. During this time, there appears to have been little regulation of the use of drugs. Similarly, in 19th century Britain, America and Australia, there was virtually no regulation of narcotic drugs.

The first drug law in Australia, against opium, came about in the early 20th century, prompted by anti-Chinese discrimination.

“Then the Hague Convention of 1912 added to the prohibition of opium to include other drugs: morphine, cocaine, cannabis and heroin—much of this was political,” Justice Refshauge said.

Ten years later, the US led an international consensus that saw stricter prohibition and more severe penalties for not only the sale, but the possession of drugs. This development was linked to the ‘evil nature’ of drugs and the people who used them.

The Hague Convention of 1912 added to the prohibition of opium to include other drugs: morphine, cocaine, cannabis and heroin—much of this was political.

“In the 1970s use grew, so did more prohibitive legislation fuelled by views that drugs and their use were causing drug users to be rebellious,” Justice Refshauge said.

“Finally, in 1999, the Commonwealth created the Drugs of Dependence Ordinance 1989 for the ACT as a model. Since then, interestingly, greater efforts have been made to wind back this approach with diverse approaches such as diversion schemes, drug courts, and greater recognition of health as the appropriate lens through which to deal with the consequences of drug use,” Justice Refshauge said.

Scientia Professor Carla Treloar FASSA

The second speaker of the night, Professor Carla Treloar, is a leading expert in health, stigma and trust in the health system. She continued the conversation on how our current drug prohibitions impact human rights and people’s access to health care.

Her research has shown that while the number of people seeking drug treatment is at a 20-year high, it remains incredibly challenging for people to seek help due to stigma. 

Prejudice and stigma were the root cause of the original drug prohibition, and Professor Treloar argued they continued to have a defining role in our current legal system.

“Stigma and stereotypes infect all of our responses to drug use in modern Australia,” Professor Treloar said.

“It’s really hard to step up and identify with living with a stigmatised condition or identity or practice. For someone who’s prohibited on top of that, the fear of repercussions is even greater.”

Stigma and stereotypes infect all of our responses to drug use in modern Australia.

This limits people’s ability to seek medical help when they need it, which in turn increases the cost as their ill health gets worse.

“It has impacts on the individual. It has impacts to our population, and has impacts to our health systems,” Professor Treloar said.

While the law cannot solve all the social issues, she said, it does provide a level of protection and gives a greater ability for services to be established and run.

Decriminalising drugs would enable people at the margins of society to seek help and healthcare without worrying that, for example, their children will be taken from them or that they would be placed in the criminal justice system.

Professor Arthur Christopoulos FAA FAHMS

Professor Arthur Christopoulos is a professor of analytical pharmacology at Monash University and brought unique insight into the effects of drugs on the brain. He also spoke about the potential therapeutic benefits of drugs that are currently illegal, as well as harm associated with drugs that are legal.

“Addiction is literally associated with changes to both brain chemistry and brain structure. Prolonged exposure to psychoactive substances, legal or otherwise, can and does change the signalling, the anatomy and the function of the brain. This is no longer a hypothesis,” Professor Christopoulos said.

Like Professor Treloar, he spoke about how treating addiction as a criminal act instead of a health condition is not supported by scientific evidence.

Some illegal drugs have even been shown to have therapeutic benefits, he said. Recently, Monash University has been allowed to explore the use of psilocybin—the active ingredient of magic mushrooms and MDMA—to treat psychiatric disorders such as depression, anxiety and OCD. Results from clinical trials have so far been positive.

“In the pursuit of better, safer and more effective medicines, especially in an area such as mental ill health, we need to be able to access and utilise substances that contemporary research is clearly telling us may work better than the current standard of care,” Professor Christopoulos said.

“Yet there remains a disconnect in our ability to access and use these potential medicines in a timely manner. That can make a huge difference, particularly to those most marginalised in our society.”

Professor Christopoulos went on to note how a study by a leading neuropsychopharmacologist found that the most harmful (psychologically, medically and socially) substances in the population are alcohol, ice, heroin and nicotine, in that order.

“In contrast, MDMA and classic psychedelics were literally at the other end of the spectrum,” Professor Christopoulos said.

“So in terms of harm minimisation, we haven’t got it right; it is almost unethical not to revisit this from the ground up.

In terms of harm minimisation, we haven't got it right; it is almost unethical not to revisit this from the ground up.

“Knowing what we know now, and if we had a clean slate, what would we do in terms of the intersection between the law and science when it comes to pharmacological substances that may or may not be historically classified as illicit?

“The divide between science and the law when it comes to how we approach and regulate medicines in drugs, especially in the psychoactive drug space, is vast. There are numerous historical reasons for this, but in this day and age, I believe we can and we should do better.”

Nicholas Cowdery AO KC FAAL

A barrister with 46 years in criminal law and 17 years as the NSW Director of Public Prosecutions, Professor Nicholas Cowdery spoke about how criminal law is not the most appropriate way to deal with drug use because it is a health and social issue.

“The story is that over time, moral decisions have been made about drugs and about individual drugs, for which there is no scientific or evidence-based foundation,” he said.

“Somebody, somewhere at some time has decided that a drug is not only bad, but so bad that it should be punished by law for a person to be associated with that drug.

“We have created the conditions for criminals to flourish, and users to suffer, by the laws that we have made. And then we spend vast amounts of public resources attempting to reverse those effects. So, in my view, radical change is necessary.”

He went on to explain that the most rational course of action would be to legalise, regulate, control and tax all drugs. Limits could then be placed on availability, advertising, and age of purchase. Educational materials and support services could also be made more readily available.

We have created the conditions for criminals to flourish, and users to suffer, by the laws that we have made … In my view, radical change is necessary.

“Heroin could be made available on prescription as it is in the United Kingdom to treat addiction, it would then be provided under continuing medical supervision,” Professor Cowdery said.

With this legitimate access, he argued, we would be more able to identify and help problematic users so that addiction could be better treated. This approach would also destroy the illegal market and the crime associated with it.

The law would still hold those operating outside the licence system accountable but would remove all criminal profits from the drug trade and reduce the harm caused by using drugs.

“It is happening elsewhere, step by step.” Professor Cowdery concluded.

Watch the joint symposium


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