Australia’s recreational drug policies aren’t working, so what are the options for reform?

Decriminalisation removes criminal penalties for drug use or possession. Viacheslav Nikolaenko/Shutterstock

Some of the greatest harms from using illicit drugs are because they are illegal.

Illegal drug production is unregulated and many drugs are manufactured in backyard labs. Users cannot be sure what’s in them or how potent they are, so the risk of adverse reactions, including overdose and death, is high.

A large proportion of the work of the justice system – police, courts and prisons – is occupied with drug-related offences. Many people have a criminal record for possessing drugs intended for personal use, which can affect their work prospects.

Drug busts have little impact on the availability of drugs and, as we continue to see more harms including overdoses and deaths, it is clear we need a new approach to illicit drugs.

This week, a parliamentary drug summit, convened by the Australian Parliamentary Group on Drug Policy and Law Reform, is debating drug policy reform in Australia. This includes the options for reform: depenalisation, decriminalisation and legalisation.

The options

There are many different legal frameworks governing the use and supply of drugs:

  • Full prohibition: drug use, possession and supply are criminal offences and result in a criminal record and sometimes prison sentence

  • Depenalisation: drug use and possession are still criminal offences but with lighter penalties (referral for assessment, education and/or treatment); drug supply remains a criminal offence

  • Decriminalisation: the removal of criminal penalties for drug use or possession. Illicit drugs remain illegal but criminal penalties are replaced with civil penalties (such as fines). People who use or possess drugs can still be charged, especially if they do not comply with paying the fine or attending the assessment. Drug supply remains a criminal offence

  • Legalisation: use of a drug is legal as is drug supply.

What legal frameworks apply in Australia?

In Australia, legislation is state-based. Different penalties apply to different drugs in different states.

South Australia, the ACT and Northern Territory have decriminalised cannabis by applying civil penalties, if a person meets certain eligibility criteria. All other states have no decriminalisation options for any illicit drugs.

All Australian states have depenalisation systems in place for cannabis, through diversion to education, assessment or treatment for those who meet eligibility criteria. Non-attendance at education, assessment or treatment can still lead to criminal charges.

All states, except NSW and Queensland, have depenalisation options for drugs other than cannabis.

How does decriminalisation affect drug supply and use?

Most research on decriminalisation is based on cannabis and has shown a number of consequences of decriminalisation.

One negative effect of decriminialisation is net-widening: an increase in the number of people arrested or charged. The way decriminalisation is implemented can affect the extent of net-widening.

On the other hand, several studies have shown that decriminalisation does not increase drug use among existing or new users. It reduces demand on, and the cost of, the criminal justice system.

Portugal decriminalised the use and possession of all illicit drugs in 2001. At the same time, it expanded investment in drug treatment, harm reduction and social reintegration. Impacts of this reform included a reduced burden on the criminal justice system, reductions in problematic drug use, reductions in drug-related HIV and AIDS, reductions in drug-related deaths, and reduced social costs of responding to drugs.

What about legalisation?

There are few jurisdictions where drugs are legalised. Uruguay has recently legalised cannabis use and production, and is in the process of implementing that legislation.

Some states in the US have legalised possession and sale of small amounts of cannabis for personal use, including Colorado, Washington, Oregon, Alaska and Washington DC. So far, this move does not seem to have led to an increase in use of cannabis or an increase in harms in those states but further monitoring is needed.

Some of the arguments for legalisation are that it would reduce the black market and criminal networks associated with the drug trade, and shift responses and funding from police and the criminal justice system towards health and treatment programs. Taxes raised could be collected to benefit the community.

One of the arguments against legalisation is that it could result in a significant increase in drug use, based on the harms and costs associated with legal drugs, alcohol and tobacco.

What does the Australian public think?

There has been a clear shift towards viewing drug use as a health and human rights issue. Former Victorian police commissioner Ken Lay, head of the federal government’s Ice Taskforce, has explained that “you can’t arrest your way out of this problem”, while Mick Palmer, former AFP Commissioner, notes that “drug law enforcement has had little impact on the Australian drug market”.

Most Australians support some form of decriminalisation (caution, civil penalty or diversion) for all drugs. Only 5% of Australians support a prison sentence for cannabis possession, with support for prison for ecstasy (14%), methamphetamine (21%) and heroin (24%) also relatively low.

One in four Australians (26%) believe that personal use of cannabis should be legal and 69% support a change in legislation to allow the use of cannabis for medical purposes. Some 42% believe that a caution, warning or no action would be appropriate for possession of small amounts of cannabis. Between 5% and 7% of Australians support legalisation of other drugs.

It’s becoming increasing clear that the illegal status of drugs causes significant harms to users and the community. There is increasing recognition that a new approach is needed.

Decriminalisation of illegal drugs has the support of Australians and does not appear to increase use, but can substantially reduce harms. Further research in countries that have legalised some drugs is needed to identify any benefits and consequences.