Russel Fox, Former Judge of the Federal Court of Australia and Chief Judge of the Australian Capital Territory.

The law in Australia respecting the prohibition of drugs stems from the 1961, 1971 and 1988 multinational Conventions. We didn't have any sort of a drug problem in 1961; it started after the prohibitions were introduced. Like many other countries, we became a party to the 1961 Convention without any close investigation of the health consequences of taking the prohibited drugs, or any of them. We became a party to the 1988 Convention, without much more of a pharmacological investigation. Rather was it assumed by our bureaucracy, which was the operative voice, that all drugs were bad and all sensible people wanted their use and possession banned. To this end our departmental officers helped with the drafting of the 1988 Convention. Naturally, they felt obliged to ensure that we not only signed, but also ratified it. The general public was not taken into anyone's confidence about this. Treaties are a matter for the executive, parliament comes on the scene only if implementing legislation is necessary.

We are a federation and the implementation of the Conventions is mostly in the hands of the States and Territories. Strictly speaking, States are not bound by the Conventions which are a responsibility of the Commonwealth only. However, they have in the past fallen into line, quite mindlessly and without public debate, or any thoughtful debate in Parliament. Myths and prejudice are enough. The fact that there is an international treaty which Australia has signed satisfies most. At this time, however, there are many States and Federal politicians who are in favour of liberalizing the drug laws, some of them Ministers. There is also a heavy weight of medical and pharmalogical opinion to the same effect. The politicians, as George Schultz pointed out in his Stanford address, don't want to be faced with the issue; it is embarrassing. Their point of view is well enough summed up in two statements which I heard made recently, one from a former Prime Minister who said that we would have drug reform "when th

e people show they want it" and the other, at the time a State Premier, who said that we would have reform when we (he was addressing a select audience) could show the Government exactly what measures were to be taken.

There has been a great deal of discussion and debate in Australia, on TV, over the air, in the press and at public meetings on the issue. It has sometimes been blunted by someone instancing a horror case, or quoting a medical opinion on health effects. I will return to refer in more detail to specific developments but at this stage will make some comments on how best, at least in this country, progress can be made. A debate purely on medical consequences is not likely to succeed. Here, some of us have been emphasizing crime rate, corruption and cost, while not neglecting the medical side. We turn to history and point out that in relation to the opiates and cannabis, the origins of the policy were mainly political. Others have been added largely by way of medical analogy. We refer to reports of Commissions and to the courses adopted in enlightened jurisdictions. I add, on occasion, that we are in our present plight because of the American mania for prohibition. It is my private view that notwithstand

ing its horrific results in the U.S., the policy is maintained there for internal racial reasons and, because of the powers given by the Conventions, for external security reasons.

There is one further matter which is to be emphasized and that is the abolition, or at least substantial reduction of the trade on the black market. The emphasis here at the moment is on cannabis. The estimate is that sales of cannabis represent eighty per cent by value of the black market. I say that the government should decriminalize, but on to a controlled market, the end result of which is a clean product of known strength, at a price much less than that payable on the black market. The controls would be exercised by a system of licensing. The scheme is dealt with more fully in the book Drug Policy: Fact, Fiction and the Future by Fox and Mathews (1992) (Blackstone Press, London), where there is also a comprehensive treatment of all aspects of drug policy. For a book that sets out merely to inform, it ends up a strong reasoned argument for reform. The prospect of accepting legality to this extent is a daunting one, but in my view it has to be accepted. Otherwise, the crime and corruption argumen

ts fail. In relation to cannabis alone, it is now possible to say that estimates, which of course are very crude, show that by a scheme of controlled availability such as that mentioned, the crime rate, for property crime, would be reduced by about twenty to thirty per cent. It is comforting to people to envisage such a reduction in theft and house-breaking. Add to that a savings in enforcement costs of many hundreds of millions of dollars, and the idea is even more attractive. Other drugs, notably heroin, cocaine and the amphetamines have to be dealt with on their merits. To those who talk of the fear politicians have in legislating to provide for a legal market, it can be said that such measures only become necessary because of the original political/bureaucratic error in introducing the prohibitions.

I have spent a little time in discussing tactical aspects, because I fear that in seeking to obtain their aims, anti-prohibitionists are likely to become their own worst enemies. It is not sufficient, I believe, to talk in slogans of "legalization" and "decriminalization". It is necessary for there to be a reasonably common view of exactly what we are asking to be done. We can certainly say that we are not responsible for the present mess, but people want to be shown a way out. It is natural and proper that we turn to medical opinion, and it is very supportive of the same goals, but the matter is very much more than a medical one.

There have been many reports on the prohibition of drugs in Australia in the last twenty to thirty years. None has been thorough-going, in the sense that it has examined policy free from the restraints of International Conventions. The Sackville Commission (1979) produced a good report for the South Australian Government which led to decriminalization, these in 1981, of the use and possession for personal use of cannabis. A scheme of expiation notices and civil fines was substituted for the criminal penalty previously operative. Provided the civil fine is paid within sixty days, the offence is not prosecuted in Court and no conviction is recorded. Early experience showed that nearly half of the notices issued were still going to court because of the failure to "expiate". Those offenders less likely to pay their fine tended to have had a prior conviction, a low income or were being charged with other offences at the same time. A later evaluation (1991) has indicated that experimentation with cannabis i

n SA, particularly among young people, has not increased as a result of introducing the expiation system.

The federal Parliamentary Joint Committee on the National Crime Authority also produced a good report "Drugs, Crime and Society" in 1989, but it ended feebly by only identifying a number of options and stating a very broad conclusion on their merits and demerits. It was federal election year. The Chairman launched in Melbourne the book Drug Policy already referred to, and positively expressed agreement, as he put it, "with every word in it". In the State of Queensland there has been a Royal Commission on corruption and the Commissioner, who reported in 1989, after stating that our drug policies had failed, recommended an early inquiry into what should be done. An inquiry relating to cannabis is currently underway. A discussion paper has been circulated and some of us have sent our criticisms. It looks at the moment that they will rub up against the Conventions and try to work within them. They could, but probably won't, recommend their "denunciation", a course provided for in them.

The Australian Capital Territory was governed by executive council edict until recently. The Drugs of Dependence Ordinance 1989 is a drug law code relating to the prohibited drugs; it was made by the executive council and in some respects it is reasonably liberal. Of course, it complies with the Convention.

The Territory was given a substantial measure of self-government in 1990, and now has its own legislature. One of its earliest moves was to appoint a Select Committee on H.I.V., Illegal Drugs and Prostitution. In its reports on marijuana and other illegal drugs it said it is apparent that those laws enacted by society relating to the prohibition of cannabis use have proven ineffective in combating the use of the drug. If it is the intention to discourage the availability and use of cannabis and to punish those who use or supply the drug, then those intentions have not been fulfilled.

New laws, in part amending the Ordinance, were passed and in particular the use and possession for personal use of marijuana became decriminalized on the illegal market. The new law effectively gives the possession of small amounts of marijuana the same status as traffic infringements and those people charged are fined. They do not acquire a criminal conviction.

The ACT is also the setting for a pilot scheme to supply registered heroin users with heroin on prescription. Participants in the scheme have to prove their ACT residence and their dependency.

Turning to institutions, the New South Wales Bar Council has passed a resolution advocating "legalization", while the New South Wales Law Society has passed a resolution that the decriminalization of cannabis be supported. The Law Council of Australia, a national body to which most State Bar Associations and Law Societies belong, in response to a recent invitation by the Joint Parliamentary Committee on the National Crime Authority has made a submission recommending that the personal use of cannabis should either be lawful or be regarded as a minor regularity offence. However, it must be added that some lawyers oppose liberalization and some Regional Law Societies have called on the Law Society of NSW to withdraw its support for the Law Council of Australia submission. The Law Society which is researching the issue extensively, will announce its decision at the end of November.

The Australian Medical Association has warned against decriminalization of marijuana on public health grounds. However, it is said that the President, Mr. Brendan Nelson, is privately for reform and will work to influence the Association's stand. Many individual physicians and psychiatrists, of standing and influence, support 'legalization'.

A few days ago the Australian Medical and Professional Society on Alcohol and Drugs passed a resolution calling for the decriminalization of cannabis.

A significant development has been the recent formation of the Australian Parliamentary Group for Drug Law Reform. Membership is small, but it includes local government councellors and state and federal politicians from all parties. The Liberal Party (our conservative party) has the least representation.

Founder of the group, a member of the Legislative Council of New South Wales, who last year travelled the world with a parliamentary group examining the drug situation said that Parliament contains many closet reformers who fear, however, being lampooned in the press if their attitude becomes known. She, herself, endured this and formed the group for protection

- safety in numbers. In November 1993 the group will publish a charter suggesting practical steps for reform. It will provide for short-term and long-term goals. A short-term goal will be to achieve uniform legislation throughout Australia. There should be national equity, she said. In arguing for this, she drew attention to the fact that in New South Wales an Aboriginal mother of three was arrested and held in custody for being in possession of a small amount of marijuana. The woman hanged herself in gaol, leaving her children motherless. If she had lived in South Australia or the Australian Capital Territory, she emphasizes, her children would still have their mother. The long-term goal will be controlled availability of all presently illegal drugs. She expects many eminent persons to sign the charter.

A conference organized by the Law Society of NSW was held on 23 October 1993 to debate the decriminalization of cannabis and narcotics. Among those advocating reform was the President of the Court of Appeal of New South Wales and the immediate past President of the Law Society who effectively admitted to breaking the law, by providing cannabis to friends of his who used it to relieve symptoms associated with AIDS. Advocates from the audience included a principal of a state high school, and a high school teacher.

It was announced that a full page advertisement was to be taken out in the press advocating reform. The advertisement will be signed by eminent persons (some 60 of them) including the President of the Australian College of Physicians (though his position will not be indicated) and the President of the New South Wales Bar Council. I am also a humble signatory.

At the end of the conference, a member of the Australian Pharmacy Guild promised to organize a seminar for his profession to have the reform issue further debated, and the teacher said she had something similar in mind. Many other conferences have taken place over the last few years.

One thing which is necessary is education. Ignorance on the subject is vast and misunderstanding correspondingly so. One thing which is not to be overlooked is the power of vested interests which will fight liberalization, regardless of the facts.

One of the dilemmas of government centres on harm minimization. This is a good cause, which most governments, faced with the transmission of AIDS and hepatitis, and the consequences generally of addiction, have to accept, and join. We have in this country many government-supported centres which supply, free, needles and syringes, swabs and condoms, knowingly for illegal use. Governments, and supply centres are accomplices to crime. We have government ministers attending conferences on harm minimization and applauding what is done. They see no inconsistency. All very strange.

Australians are aware that the US President, Bill Clinton, has finally called an end to the Drug War and is advocating "harm minimization". Australian television publicized California's earlier decision to decriminalize cannabis (its biggest cash crop) and its forecast that continuing prohibition over the next two decades will see California's population divided into two groups - people in prison and people looking after those in prison. The result of the Italian referendum and the Frankfurt Police Commissioner's public declaration that prohibition should be abandoned are also being made known to Australians.

Although the present effusion of interest and activity is very encouraging, I am not optimistic that we will get much legislative movement in the near future. All Premiers are conservative in the drug area, and in a few cases, opposition leaders are even more so. There is at present no bi-partisan support for any significant reform. A South Australian or Australian Capital Territory type of decriminalization of cannabis is a possibility in Queensland, if the Committee exploring the law there in relation to cannabis brings in a suitable recommendation. Any legislation contrary to the Convention in any substantial sense is most unlikely, and I doubt whether any government would contemplate official inaction of the Dutch variety - it is too foreign to our legal principles. One matter which can and should be put right is an aspect of legislative treatment here of cannabis and heroin. Although the Conventions do not require it, any use of either, even for medical purposes is banned. Both those drugs have m

edical uses, but they cannot be used, even in hospitals. I recently came upon a doctor, quite by accident, and he having no knowledge of my interest in the subject, who was complaining that all he could do for a terminal cancer patient in pain was to prescribe five morphine shots a day, whereas, he said, if he could use heroin, he could prescribe fewer and the patient would be better off.

---------------------------------

This article has been written in October 1993