Overview: Decriminalisation vs legalisation

Decriminalisation

When drug use and possession are decriminalised, criminal charges are not applied.

Criminal charges are those brought against a person by police and legal practitioners on behalf of the government. They are managed through the court system.* If a person is found guilty and convicted, punishment may include jail time. The person will also have a criminal record.

A criminal conviction can result in the breakdown of personal relationships and close off future employment, housing and travel options. For example, future employers may reject a job application because of a criminal record. A person with a criminal record may not be granted a visa to visit other countries. The stigma of a criminal record may cause mental anguish. Having a criminal record can severely impact on someone’s life.

Decriminalisation may replace criminal penalties with civil penalties. These could include referral to an education or treatment program, or a fine. Civil cases do not have to go through the court system and may be dealt with by tribunals.¹ While records may be kept by a tribunal, these are not criminal records and will not affect employment, housing, or travel opportunities. The key difference to a criminal model is that in a decriminalised model, while penalties still apply for use and possession of drugs, they are no longer criminal charges.

Decriminalisation is not legalisation. If drug possession and personal use are decriminalised, it is still illegal to possess and use drugs. Selling and manufacturing drugs still carry criminal penalties.

Put simply, if a drug or drug use is decriminalised, people are not criminalised for personal use.

The rationale behind decriminalisation is to treat drug use and dependence as a health and social issue, not a criminal justice or moral issue. The aim of this model is to improve health and social outcomes.

Treating drug use as a health and social issue can reduce stigma and increase the likelihood that a person will seek help when they need it.² A person may also avoid negative social outcomes – such as loss of employment or housing – that can result from a criminal record or engagement with the criminal justice system.

Decriminalisation may also reduce strain on the criminal justice system by reducing the burden on the court system; time spent by police and legal practitioners on court matters; and costs of imprisonment.^3-5

Decriminalisation, however, is not a single solution. Advocates of decriminalisation emphasise that success depends on investments in drug treatment and support services. This means increasing the number of spaces available in treatment services like detoxification units, therapeutic communities and pharmacotherapy treatment (e.g. methadone), as well as reducing wait times for those services.⁴

Additionally, there are several drug- related health risks that are not addressed by decriminalisation. More details about decriminalisation.

Legalisation

Drug legalisation removes all penalties for possession and personal use of a drug.

Regulations are typically established to manage where and how the legal drug can be produced, sold, and consumed. Criminal or civil penalties may apply if production, sale or consumption occur outside of regulations. An example of a legalised drug is alcohol.

Alcohol is a legal drug in Australia.

Alcohol production, distribution and consumption are subject to regulations in Australia. For example, there are quality controls placed on its production, businesses must be licenced to sell it, hours of sale are restricted and there are minimum age laws and secondary supply laws to restrict sale and supply of alcohol to young people.

Despite these restrictions, alcohol causes significant harm to Australians. Every day, ¹⁵ Australians die due to alcohol- attributable disease or injuries and 430 Australians are hospitalised because of alcohol use.⁶ Alcohol is the most common drug that Australians seek treatment for,7 and alcohol-related harms cost Australian society an estimated $15.3 billion a year.⁸

It’s important to recognise that legalisation does not solve all the problems associated with a drug’s use and people’s experience of potential adverse impacts of that drug.

*In Victoria, records of court appearances are kept regardless of the outcome. However, Victoria Police does not typically share criminal records with employers if the person was found not guilty, or they went into a diversion program and abided by the conditions. Victoria Legal Aid