A Better Way - Legal Regulation of Drugs

Australia's current drug policies are outdated. Born out of the war on drug users, they do nothing to minimise harm.

Instead, they cause harm by stigmatising addiction and the people who suffer from it.

It's time for a better way – an evidence-based approach that creates a safer system for everyone.

That's why Drug Policy Australia is part of the global movement advocating for the legal regulation of drugs, alongside 31 United Nations agencies, including the World Health Organisation, UNICEF, and the High Commissioner for Human Rights.

In 2019, those agencies adopted a common position on drug policy, including a commitment to
"Support the development and implementation of policies that put people, health and human rights at the centre … and to promote a rebalancing of drug policies and interventions towards public health approaches".

Legal regulation differs from 'decriminalisation', which usually refers only to decriminalising personal possession and use.

Although decriminalisation is a step towards overall legal regulation, it still leaves a significant grey area, and crucially, it leaves users in contact with an unregulated and dangerous black market.

Legal regulation, on the other hand, reforms the entire system. It is an end state, where the production, supply and use of many drugs are legally regulated and, as a result, controlled by governments.

Critically, the level of regulation is proportionate to the real risks and harms posed by each drug.

When considering the legal regulation of drugs, it's important to remember that our society currently regulates many drugs that were once illegal. These include tobacco, alcohol, and pharmaceutical drugs. Society's approach to these substances has changed over time. A similar change to the way we regulate drugs is long overdue.

On the 28th of February 2021, Oregon, in the United States where the drug prohibition originated, decriminalised the possession of all drugs for personal use. People caught with small amounts of drugs are referred to various support services instead of being subject to arrest and criminal penalties.

In Portugal, overdose deaths, HIV infections due to injecting, and the number of people incarcerated for drug offences have dramatically fallen since the decriminalisation of drugs in 2001.

Despite these compelling case studies and the advice of local experts, the Australian government remain unmoved and fully committed to the war on drug users.

In New South Wales, the Special Commission of Inquiry into the Drug "Ice" and the Coroner's Court recommended decriminalising drugs. In 2019, the Queensland Productivity Commission recommended decriminalising all drugs and the legal regulation of cannabis and MDMA.

Instead of following this expert advice, our decision-makers continue to play politics with drugs by driving fear campaigns and building stigma designed to serve their political agendas instead of the national interest.

What would legal regulation look like in practice?

Legal regulation would differ dramatically by substance.

A purpose-built set of laws would govern the use and supply of each different drug depending on their harm profile.

For example, dangerous drugs like opioids would attract stricter regulations than less harmful substances like cannabis or MDMA.

We believe that drugs currently deemed illegal should be governed similarly to other, now legal psychoactive substances, including caffeine, alcohol, and pharmaceuticals.

Based on the existing systems in use to regulate these legal products, there are several potential options:

  • Prescription
    Particularly harmful substances, like heroin, could be prescribed to dependant users by a qualified doctor and consumed in a supervised setting. This approach would help to ensure that vulnerable Australians have access to support for their often complex physical and mental health needs. Several jurisdictions, including Switzerland and Canada, use this model to manage heroin addiction.
  • Pharmacy
    Licenced professionals could provide a point-of-sale for drugs like MDMA and amphetamines, providing rationed quantities to those who wish to use them. There could be other health and safety restrictions in place, like a licence requirement for consumers.
  • Licenced Sales
    Low-risk substances could be sold at licenced outlets under strict conditions, including age restrictions, health and safety advice, and a ban on advertising and promotions.
  • Licenced Premises
    In much the same way as alcohol – or, in some countries, cannabis – licenced premises could provide a substance for on-site consumption only, subject to strict conditions and regulation including age checks and responsibility for customer behaviour.

FAQ's

First and foremost, legal regulation is about reducing harm. The current approach to drug policy in Australia maximises the risks involved with taking drugs. 

Under a legally regulated system, users would be more aware of the dangers posed by their choice to take drugs because of increased access to education and health information. They would also be able to precisely control what enters their bodies, which is impossible if users buy drugs from an unregulated market.

Australia spends 64% of the budget allocated to illicit drugs on law enforcement

A shift in focus from policing to public health would also enable more investment in harm reduction initiatives. In 2021, the federal and state governments spent $5.45 billion on enforcement, almost triple the combined amount of funding on harm reduction, prevention, and treatment. Moreover, the total spending on law enforcement increased fivefold from 2016. (report from UNSW Syddney)

There is no link between strict enforcement of prohibition and levels of use. In Portugal, for example, there has not been any dramatic rise in use since decriminalisation 20 years ago.

More importantly, deaths from drug use have decreased significantly.

Legal regulation will not only help to identify problematic use, thereby preventing harm, but it will also remove the compounding effect that criminalisation has on vulnerable people.

Instead of asking whether we can afford a new system, we should consider how we can justify the current loss of life and the costs of the current system.

The Queensland Productivity Commission's cost-benefit analysis found that decriminalising the use and possession of cannabis would save about $850 million, rising to $1.2 billion if the Government chose to fully legalise and regulate the supply of "lower-harm drugs such as cannabis and MDMA".

Drugs would be subject to similar age restrictions to alcohol. For young people who fulfil the requirement, a legally regulated system would ensure they do not have to interact with an illegal and dangerous supply chain.

Regulation would give people more control over the precise substances they choose to take, which would help to prevent the consumption of toxic substances of unknown quantities. Messaging on the packaging and at the point of sale would also allow for more education about the risks of taking drugs, which would help prevent unnecessary deaths.

There is strong evidence that legal regulation will reduce crime, and not just because it would obviously remove some offences from the statute book. For example, Australia's Drug Use Monitoring Program found that 25% of recent offenders who had reported drug use committed their crime to fund their habit.

Legal regulation would also weaken organised crime by damaging their networks and taking away their clientele. If we want to be tough on crime, taking away illegal supply chains would be a great place to start. We need sensible, informed policy rather than policies that are built simply to enable ill-conceived and often opportunistic rhetoric from politicians.

As opposed to being immoral and promoting drug use, legal regulation would prevent harm and therefore, represents a far more moral and humane approach.

How to Make a Case for Legal Regulation

At Drug Policy Australia, we recognise that Drug Prohibition has been an unmitigated catastrophe. Not only has it failed to control the trade and use of illicit drugs, but it also increases the harm to society by creating a range of unintended consequences that threaten the health and human rights of all members of society, especially the vulnerable.

Australia should be a global leader in evidence-based drug policies having adopted Harm Minimisation as the national strategy for issues related to alcohol and other drugs since 1985. The National Drug Strategy 2004 - 2009 priorities harm minimisation in dealing with the use of illicit drugs and the misuse of licit drugs.

The present course will not be quick or easy to correct; few people alive today have known anything other than punitive drug laws, and change of this magnitude can seem like a radical proposition. It is our job to show that the most dangerous choice of all is to ignore the suffering and injustice caused by our current failed policies.

It is essential to recognise that those who argue for prohibition are often motivated by the same ultimate objective that we oppose it. They are concerned for other people – particularly the young and vulnerable – and do not want them to suffer addiction, ill health or untimely death from drug use.

That common ground is our strength: by listening and responding patiently to the concerns of others, we can build an argument based on shared objectives and an open-minded look at the evidence, which will point to the urgent necessity of legal regulation.

What follows is a primer for issues and objections that are likely to be raised in discussion. We hope it will prove helpful in making your arguments for change.

Clarifying Terms

In the drugs debate, there is often not enough clarity in the terms we use. In particular, there is widespread confusion over the difference between ‘legalisation’, ‘legal regulation’ and ‘decriminalisation’.

‘Legalisation’ refers to the process by which illegal drugs become legal, whereas ‘legal regulation’ is the end state in which the production, supply and use of a drug are no longer criminal, but instead regulated and controlled by the government like any other type of commerce.

‘Decriminalisation’ is a bit more ambiguous, since it refers only to personal possession and use, which can be challenging to define, and leaves significant grey areas where users continue to interact with an illegal supply chain. While this represents a step in the right direction, it is not an ultimate solution, since it does not provide legal clarity or protection from a dangerous, unregulated market.

Objections and Answers

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