Adrian McKenna | ACT drug decriminalisation laws scaremongering misses the point

This presents a unique opportunity to try a fresh approach to responding to drug use in the community. After decades of focusing on crime, punishment and supposed deterrence, with little sign this regime has made anything close to a real dent in the drug trade, the ACT will be shifting its attention to other priorities.

The new laws emphasise harm minimisation and health outcomes through a system of civil fines and diversions instead of bringing criminal charges before court.

Instead of taking this opportunity to see if we can make this new regime effective, some rather sensationalist and pessimistic commentary is already emerging.

Australian Federal Police Deputy Commissioner Neil Gaughan has recently raised concerns that people interstate will inevitably flock to the ACT for weekend drug trips. As the ACT's Chief Police Officer, he has suggested the changes could even lead to more bikie-related conflict. Others have said the ACT is supposedly set to become a drug "fantasyland". At best, these descriptors are vastly overplaying what will likely be the reality. At worst, it is scaremongering.

Without the deterrent effect of being taken to court where a criminal conviction may be imposed, it has been claimed the new laws will represent a licence to engage in unfettered and prolific drug use.

But has our current regime actually kept widespread drug use and trafficking at bay? If it were to be described as a "war on drugs", it is hard to say the drugs are not winning. It is also difficult to understand how it is in the community's interests to have criminal convictions recorded against a cohort of younger Canberrans who may well be going through a temporary experimental phase.

Criminal convictions typically remain disclosable to employers and in many other situations for 10 years. The ACT now has a chance to acknowledge the limits of crime and punishment and take a new course.

Many raised alarm and panic when the ACT moved to decriminalise levels of cannabis use and cultivation in 2021. Critics spoke of police being left in a hopeless position, supposedly being unable to handle conflicts between ACT and Commonwealth cannabis laws. It has been two years into this regime and there are no signs of the sky falling in.

The changes have taken a host of low-level cannabis users away from court and by all accounts police have ably applied their tools of civil infringements, cautions and diversions.

The ACT has remained Australia's only jurisdiction where lower levels of cannabis use and cultivation are decriminalised. No one could say with a straight face that the city has become some kind of national drug-haven. Broadening this regime to other drugs is the logical next step.

We can also look ashore with some long-term optimism to the experience in Portugal.

Since 2001, the Portuguese have taken a similar approach in decriminalising a broad range of illicit substances with a harm-minimisation focus centred on treatment referrals.

Over the 20-year period, drug-related deaths fell while they continued to climb throughout the rest of Europe. The country saw a drop in overall drug use, in the proportion of drug-related prisoners and a reduced burden on the court system.

Switzerland is another example of a country which has taken an effective approach to hard drugs involving a combination of decriminalisation and therapeutic interventions.

This has been effective in reducing barriers for drug users accessing healthcare, including mental health care, employment, and legal services. It has also been effective in reducing the prevalence of needle-borne diseases such as HIV in their communities.

To be clear, the changes in the ACT do not amount to the legalisation of drugs. Low-level possession will instead be decriminalised. Possession remains unlawful but police cannot lay charges before criminal courts. They will now utilise powers to issue cautions, divert users for counselling or treatment, and to impose $100 civil fines.

The ACT Legislative Assembly has drawn the line for decriminalisation of most illicit substances, including MDMA, cocaine and methylamphetamine, at 1.5 grams. For heroin, the limit is one gram and for LSD 0.001 of a gram. Above these levels, possession of illicit drugs remains a criminal offence. To some, it may seem an arbitrary limit but that is oftentimes the inherent nature of laws. Take, for example, fully licensed drivers who can lawfully drive with a reading of 0.049 but commit a crime at 0.050.

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The limits of decriminalisation are intended to capture what is most likely to amount to personal use as opposed to amounts more likely to reflect a supply of drugs to others. To reach the limit where one is presumed to be trafficking, for several different illicit substances, the line will remain drawn at six grams. Drug trafficking and supply will remain serious criminal offences punishable by terms of imprisonment.

It is hoped the decriminalisation of low-level possession will also go some way towards destigmatising drug use. It may encourage more open and honest discussions between drug users and health experts where the long-term health implications of drug use can be impressed upon users. If it remains hidden in the dark, it is harder to address the root cause of the issue.

Inherent to a harm-minimisation approach, the ACT will also have to compliment decriminalisation with treatment and drug counselling services that receive sufficient long-term funding. One is not effective without the other.

No one can say for sure how the new transition into decriminalisation will play out from October 28, but the old way of dealing with drug use has seen little progress. We now have an opportunity to try a different line of action, where better health outcomes and harm minimisation are given a chance over crime and punishment.

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