Decriminalisation in detail

It’s not a single solution

Decriminalisation is not recommended as a stand-alone policy. The Federal Parliamentary Joint Committee on Law Enforcement noted that implementing decriminalisation as policy would need to happen alongside investment in treatment services. These investments need to ensure that people who use drugs have a place in treatment available for them immediately upon needing it.9

Decriminalisation removes the criminal penalties from drug use and possession so that a person who uses drugs is not, by definition, a criminal. This can help define drug use as a health and social issue, and reduce the damaging stigma attached to people who use drugs. Reducing stigma, while expanding access to treatment services, could significantly improve health outcomes for people who use drugs. However, the inherent risks of drug use will not be lessened.

Risks of drug use

There is no safe level of drug use. Use of any drug always carries some risk.

It’s important to remember that decriminalisation does not change the supply of drugs – all illegal drugs must still be sourced through the black market. This means drugs will remain of unknown strength and purity, and potentially be cut with various fillers. Also, it may not be the drug that it was sold as (e.g. a new psychoactive substance being sold as MDMA or LSD).

Additional health risks of drug use may include the risk of dependence, potential for negative mental health impacts, risk of experiencing a bad reaction, risk of overdose – including fatal overdose – as well as the risk of bloodborne viruses for people who inject drugs.

Initiatives to prevent drug use, minimise the harms associated with drug use, and provide support for people who experience dependence, are also necessary to expand or implement alongside decriminalisation.

A further issue is the concern that decriminalisation may lead to increased drug use. However, this concern has not been supported by evidence from Australia and overseas.9-11 Portugal, which decriminalised all drugs in 2001, does not have higher rates of drug use than neighbouring countries.12 One study in 2017 suggested that rates of drug use had fallen lower than the European average.13

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Decriminalisation in Australia

Decriminalisation of drug use and possession is not new in Australia. South Australia (SA) was a world leader when it decriminalised cannabis in 1987, introducing an option to pay a fine instead of receiving a criminal charge.11 An analysis of cannabis use in SA between 1985 and 1993 found that the decriminalisation of cannabis did not appear to significantly increase rates of cannabis use relative to other states.11

Currently, all Australian states and territories practice some form of decriminalisation.14 Significant differences exist between the various state models – for example, the quantity of a drug considered to be for personal use versus what would be considered as a trafficable amount.15

Research centres such as the National Drug and Alcohol Research Centre (NDARC), organisations such as the Australian Institute of Criminology (AIC), as well as various governmental committees, commissions, and inquiries have explored the viability of

decriminalisation as a policy in Australia. The key themes of these considerations are highlighted below.

Different models

There are two primary types of decriminalisation.14

In law (de jure)

By law, criminal penalties for possession and personal use are removed and may be replaced with civil or administrative penalties, such as a fine, or a referral to an education or treatment program. Criminal penalties may still apply if the person does not comply with the civil or administrative penalties.

As of 2019, two Australian states (Northern Territory and South Australia) have in law decriminalisation for cannabis.

One Australian state (Australian Capital Territory) has legalised cannabis possession, use and cultivation under specific circumstances.

In practice (de facto)

In practice, possession and personal use remain a criminal offence. However, police may use their discretion (e.g. be provided with police guidelines) on enforcement.

The courts may also be able to offer alternative punishments to prison if certain eligibility criteria are met by the offender. For example, a first-time offender may be referred to an education program rather than receiving a criminal conviction.

Criminal penalties may still apply if the person does not attend.

The key difference is the legal change.

De facto decriminalisation means that the law remains the same, but some cases can receive special treatment if the police exercise their discretion and/or the eligibility criteria are met.

As of 2019, all Australian states have some type of in practice (de facto) decriminalisation.

In Victoria, the possession and use of cannabis and other illicit drugs is in practice (de facto) decriminalised under the Cannabis Cautioning Scheme and the Drug Diversion Program.16 These discretionary programs are laid out in the Victorian Police Manual instead of legislation. A person can only be cautioned or diverted twice under these schemes after which they are no longer eligible.

Under the Cannabis Cautioning Scheme, a person found with less than 50 grams receives a caution and information on a free educational session they can choose to attend.16 Under the Drug Diversion Program, people with small amounts of non-cannabis illegal drugs are required to attend an assessment and a minimum of one treatment session.16

Other considerations

In exploring models for drug decriminalisation, leading researchers have pointed to four key issues for consideration. These are detailed below.17