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Countries across the western hemisphere are amending drug laws relating to a range of chemical (or psychoactive) substances that alter brain function and lead to changes in people’s perception, mood, consciousness or behaviour.
In some places cannabis is now as freely available as alcohol or tobacco.
Should we be concerned or glad about moves to loosen access to these drugs? The answer is that we need to weigh the evidence. But before that, we need to know what we’re talking about.
Increasingly, cannabis can be consumed for medical or therapeutic purposes without risk of arrest or punishment; in other areas, consumers of drugs are no longer charged with a crime, even when their use of the drug remains outside the law.
Just writing this reminds me why there’s so much confusion around drug law reform.
And where there’s confusion, there’s scope for misinformation; and for drug law reforms to be assessed less by the evidence, and more by people’s prejudices.
To understand what’s happening, and whether it’s a good thing or not, we first need to be clear on what’s being proposed.
When people call for drug law reform they typically talk of decriminalisation, legalisation and/or regulation.
Sometimes these words are used interchangeably: particularly by the media. So first we need to be clear what these terms mean, be clear on the differences between them, and be mindful of both what the ‘reformer’, and the reporter of these reforms, means when they use these terms.
Calls for decriminalisation of drugs are increasingly common.
When drugs are decriminalised, the consumer is not charged with a criminal offence and thus avoids a criminal conviction. In these circumstances however the drug remains illegal.
Then there’s the important distinction between de jure reform and de facto reform.
De jure reform occurs when legislation is changed so that previously illegal activity becomes lawful, or a criminal offence becomes a civil offence.
De facto reform on the other hand merely changes the interpretation, practice and implementation of the law, while the behaviour remains illegal.1 In Portugal, de jure decriminalisation famously applies to all personal drug use and so people who are found to be using a drug are referred to a Commission for the Dissuasion of Drug Addiction that decides whether that person requires education or drug treatment.
Australia does not have a consistent attitude to drug decriminalisation.
The Australian Capital Territory, the Northern Territory and South Australia each have decriminalised personal use of cannabis so that consumption is a civil offence and consumers are subject to a fine.
By contrast, the other jurisdictions have de facto decriminalised personal use of cannabis so that police and the courts have discretion to give certain offenders a caution, or divert them to drug assessment or treatment. All jurisdictions other than NSW and QLD offer de facto decriminalisation for illicit drugs other than cannabis.2
While de facto reform offers some advantages, it allows the law to be applied selectively to favour or disadvantage particular groups.
Advocates for drug decriminalisation generally prefer de jure decriminalisation, as it is a formal change; protected by law, rather than convention, these reforms apply in all cases, without discretion.
With drug law reforms leading to de-penalisation and decriminalisation, the trade in illicit drugs remains in the hands of the black market. However, the possession and use of drugs does become lawful when a drug is legalised or subject to regulation.
Legalisation essentially means that the production, distribution and retail sale of specified drugs would occur within a legal framework and that specified drugs would become consumer commodities, similar to tobacco and alcohol.3
Lawful access to legal drugs and their lawful use would then depend on a host of regulatory details that would be the subject of extensive debate and negotiation between various interests.4
Drug regulation is the term that is preferred by many advocates for drug legalisation. It draws attention to the various ways in which access to legal drugs is controlled presently and is contrasted to the free market, or laissez-faire regime that applies to some legal commodities.
Regulation emphasises that newly legalised drugs could be subjected to the same controls that are applied to the familiar legal substances of tobacco, alcohol, and ‘over-the-counter’ and prescription pharmaceutical drugs.5
For example, some drugs might be made available from pharmacies (as are pharmaceuticals now); others from specialist shops or businesses (as is alcohol and tobacco); more hazardous drugs could be provided by GPs under close supervision. Other controls might include the requirement for personal drug education, personal registration to purchase particular drugs, and limits on the quantity of weekly or monthly purchase or consumption.
All drugs have a range of intended and unintended, direct and indirect consequences. As a result, drug law reform, including that around psychoactive substances, must be nuanced – balancing both their positive and negative effects.
This makes drug law reform a complex issue; and means there is rarely one ‘right’ answer.
In fact, the answer is often different for different individuals and different communities, depending on their circumstances.
Our ‘best’ approach on drug law reform will also shift as the evidence mounts; as we get a clearer picture on the effects of various drugs under different circumstances.
What we know today about the impact of alcohol and its effect on children’s brains is different from what we understood 20 or 30 years ago. On the flipside, the benefits of medicinal cannabis are only starting to be properly understood.
This means our laws can’t remain static and we should expect reform to take account of changing circumstances and new research.
But alongside this, the community needs to understand the efficacy of any changes to our drug laws; and underpinning this is a responsibility for each of us to properly understand what’s being proposed.
Otherwise, we’re doomed to an eternal ‘war on drugs’.