Overview: Decriminalisation vs legalisation
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.
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
- Loxley W, Toumbourou J, Stockwell T, Haines B, Scott K, Godfrey C, Waters E, Patton G, Fordham R, Gray D, Marshall J. 1. Legal Information Access Centre. Chapter 4: What the law deals with. Library Council of New South Wales; 2011. Available from: https://legalanswers.sl.nsw.gov.au/hot-topics-australian-legal-system/what-law-deals.
- Benfer I, Zahnow R, Barratt M, Maier L, Winstock A, Ferris J. The impact of drug policy liberalisation on willingness to seek help for problem drug use: A comparison of 20 countries. International Journal of Drug Policy. 2018;56:162-75.
- Single E, Christie P, Ali R. The Impact of Cannabis Decriminalisation in Australia and the United States. Journal of Public Health Policy. 2000;21(2):157-86.
- Hughes C, Stevens A. The effects of decriminalization of drug use in Portugal: Discussion paper. Oxford; 2007.
- Baker J, Goh D. The cannabis cautioning scheme three years on: an implementation and outcomes evaluation. Sydney; 2004.
- Foundation for Alcohol Research and Education. Pre-Budget submission 2017-18: Submission to Treasury. Canberra; 2017.
- Australian Institute of Health and Welfare. National Drug Strategy Household Survey 2016: detailed findings. Canberra: AIHW; 2017.
- Australian Institute of Health and Welfare. Alcohol and other drug treatment services in Australia: state and territory summaries, Summary. Australian Institute of Health and Welfare; 2019. Available from: https://www.aihw.gov.au/reports/ alcohol-other-drug-treatment-services/aodts-state-territory-summaries/contents/summary.
- Joint Committee on Law Enforcement. Inquiry into crystal methamphetamine (ice) Final Report. Canberra: Commonwealth of Australia; 2018.
- Cabral TS. The 15th anniversary of the Portuguese drug policy: Its history, its success and its future. Drug Science, Policy and Law. 2017;3:2050324516683640.
- Donnelly N, Hall W, Christie P. The effects of partial decriminalisation on cannabis use in South Australia, 1985 to 1993. Australian Journal of Public Health. 1995;19(3):281-7.
- Hughes CE, Stevens A. A resounding success or a disastrous failure: re-examining the interpretation of evidence on the Portuguese decriminalization of illicit drugs. New Approaches to Drug Policies: Springer; 2015. p. 137-62.
- European Monitoring Centre for Drugs and Drug Addiction and Serviço de Intervenção nos Comportamentos. Portugal: Country Drug Report 2017. Lisbon; 2017.
- Hughes C, Ritter A, Chalmers J, Lancaster K, Barratt M, Moxham-Hall V. Decriminalisation of drug use and possession in Australia - A briefing note. Sydney: Drug Policy Modelling Program, NDARC, UNSW Australia; 2016.
- Hughes C, Ritter A, Cowdery N, Phillips B. Australian threshold quantities for ‘drug trafficking’: Are they placing drug users at risk of unjustified saction? Canberra: Australian Institute of Criminology; 2014.
- Law Reform Road and Community Safety Committee. Inquiry into Drug Law Reform. Melbourne: Parliament of Victoria; 2018.
- Ritter A, Hughes C, Shanahan M. Bulletin No. 26: Models for the decriminalisation of the personal use and possession of drugs. Sydney: Social Policy Research Centre, University of New South Wales, National Drug & Alcohol Research Centre DPMP; 2018.
- Hughes C, Cowdery N, Ritter A. Deemed supply in Australian drug trafficking laws: a justifiable legal provision? Current Issues in Criminal Justice. 2015;27(1):1-20.
- Allard T, Stewart A, Chrzanowski A, Ogilvie J, Birks D, Little S. Police diversion of young offenders and Indigenous over- representation. Canberra: Australian Institute of Criminology; 2010.
- Shanahan M, Hughes C, McSweeney T. Police diversion for cannabis offences: Assessing outcomes and cost-effectiveness. Canberra: Australian Institute of Criminology; 2017.
- Room R, Fischer B, Hall W, Reuter P, Lenton S. Cannabis policy: moving beyond stalemate: USA: Oxford University Press; 2010.
- Greenwald G. Drug decriminalisation in Portugal: Lessons for creating fair and successful drug policies. Washington: DC; 2009.