Drug Summit SubmissionLaw Society of NSW submission to NSW Parliamentary Drug Summit 17-21 May 1999
Executive Summary
The effectiveness of suggested programs should be properly researched and tested by way of PILOT PROGRAMS and results made public. This will enable assessment of:
Again, allowing this flexibility will only be of benefit if there are enough places available in detoxification, treatment and rehabilitation programs. The Law Society and NSW branch of the AMA have joined together in endorsing a Joint Protocol and Joint Statement (Joint Protocol between the Australian Medical Association (NSW) Limited and the Law Society Of New South Wales), a copy of which accompanies this submission. Each organisation in its own right has developed policies that accord with these recommendations. Outline of Law Society ProposalsPersonal Use OffencesPrecondition:
Diversionary Options:
Crimes Committed by Drug Users (both adult and juvenile)
Chronic Heroin Users - Safety and Treatment Programs
Medical use of Cannabis
IntroductionFrom the early part of this century, international laws have been evolving to prevent the non-medical use of drugs. New South Wales banned cannabis in 1927 under direction from the Commonwealth. Opinion divided (principally between the USA and the UK) on whether it was legal for doctors to prescribe dangerous drugs' to manage addiction, rather than to treat disease. Heroin, for example, was a very popular drug in Australia, having widespread use in cough mixtures and for pain control (for example, in child birth and for treatment of sufferers of terminal cancer). Until 1953, heroin addiction in Australia could be treated by doctors who were allowed to prescribe habit-forming drugs under close supervision from State/Territory Health Departments. Responding to pressure from overseas, the Commonwealth Government banned the production and importation of heroin in Australia in 1953[1]. Problems in relation to the containment of illicit drug use have grown rapidly worse over the last 30 years. Death, disease, crime and corruption related to illicit drugs is increasing rapidly in Australia. Crime and drug use have common causes:
A criminal subculture also encourages drug abuse and crime. The National Campaign against Drug Abuse[2] gave a figure of just over $1200 million for total costs of the abuse of illicit drugs in Australia in 1988, including treatment of drug related illness, accidents resulting from drug use and misuse, loss of productivity due to absenteeism, premature death, property crime and damage. These costs exclude the costs of the justice system. The impact on the community and the justice system can be more readily understood if we look at the results of some recent studies. A 1995 study of juvenile theft offenders in NSW detention centres found that 30.1% of break and enter offences were committed to obtain money for drugs/alcohol[3]. Findings released in 1998 of a survey of imprisoned burglars included:
The NSW Department of Corrective Services estimates that up to 80% of the inmate population is received into custody in relation to alcohol and other drug-related matters. As at 30 June 1998, 613 male and 99 female inmates (out of a total inmate population of 6452) were on methadone-approximately 10% of the inmate population is on the methadone program at any time.[5] The Australian Institute of Criminology estimated that, in 1997, the total cost of crime to Australia was A$13 billion, with another $6,433 million spent on law enforcement, courts, justice and prisons. A very high proportion of Commonwealth and State Government expenditure for the containment of illicit drug use is allocated to law enforcement (customs, police, courts, prisons). Compare that with the way that Switzerland (where drug overdose deaths have halved from 1992-1998) allocates funding: Table - Australia 1992*
* The UN World Drug Report-United Nations International Drug Control Program OUP, 1997. Table - Switzerland 1991-1994 (annual average)**
** Swiss Federal Office of Public Health: The Swiss Drug Policy University of Neuchatel, Swiss Inst. for the Prevention of Alcohol and Drug Problems. Approximate exchange rates: A$1=US$0.64; A$1=SFr0.97 As long ago as 1989, the Parliamentary Joint Committee on the National Crime Authority Drugs, Crime and Society Report concluded that all the evidence shows, however, not only that our law enforcement agencies have not succeeded in preventing the supply of illicit drugs to Australian markets but that it is unrealistic to expect them to do so". After 30 years of intervention, efforts to reduce supply of and demand for drugs have failed. While intensification of current policy is politically risk free, there is growing recognition that current measures are only marginally effective at best. The number of people, particularly young people, using illicit drugs, notably heroin and cocaine, is increasing rapidly and the age of initiation to heroin use has declined steadily in recent years. Evidence shows:
Reform is inherently risky. However, consider that efforts to reduce supply and demand have been relatively ineffective while, for example, efforts to reduce harm have almost always been spectacularly effective, for example in the areas of HIV control (AIDS cases have nearly halved and deaths from the disease have fallen 80% in the period 1990-1997[7]) and methadone maintenance (there is consistent evidence that properly administered and supervised methadone maintenance treatment reduces heroin use and crime[8]). The problem of illicit drug use has to be treated primarily as a health and social issue rather than as a law enforcement issue. The Law Society and the NSW branch of the Australian Medical Association have just settled an historic joint protocol of principles and recommendations calling for the development of more effective responses to Australia's growing problem of illicit drugs. Rigorous scientific research, free of political interference, is the foundation of advances in clinical medicine. The Law Society of NSW and the NSW AMA believe that politicians should allow the experts to decide whether and what research is needed. The necessity for research should be assessed by peer review in accordance with established scientific practices. The current range and capacity of the drug treatment system is grossly inadequate. The drug treatment system needs to be attractive to the target population, based on evidence of effectiveness. At present, it is much easier to buy illicit drugs than it is to enter treatment and rehabilitation. Until that changes, Australia will not move forward. Expansion of treatment and rehabilitation services for drug users could be paid for by reducing expenditure on those law enforcement measures which have not produced benefits, despite valiant efforts, over the last decades. In the long term, considerable savings in all areas of law enforcement (policing, criminal justice system and corrective services) would be expected and those savings would ultimately fund the ongoing alternative measures put in place. In addition, a considerable overall saving to the community, on top of the cost of treatment, would be anticipated. Further initial funding for programs for prevention of illicit drug use and treatment of users could be applied from alcohol and tobacco excise. Use of alcohol and tobacco in early adolescence is associated with use of illicit drugs in later adolescence. Reducing or dealing with this in early adolescence is thought to reduce illicit drug use in later adolescence. While this will have the effect of, very slightly, raising alcohol and tobacco prices, it will achieve a direct benefit and will also have the indirect effect of reducing drug consumption. The number of fatal heroin overdoses in Australia rose from 70 in 1979 to 550 1995[9]. Over the period 1992-1996, there were 953 heroin-related fatalities in New South Wales alone, rising from 152 deaths in 1992 to 226 during 1996[10]. There were 176 heroin-related fatalities in South Western Sydney between 1992-1996, with the substantial increase from 20 deaths in 1992 to 54 during 1996. Fatalities predominantly occurred in public settings. Cabramatta, with 70% of fatalities, was the location in which deaths most frequently occurred. A third of cases resided outside the South Western region at the time of death and, in 71% of cases, there was no intervention[11]. It is understood that non-fatal overdoses are also increasing dramatically. Although the illicit drug problem is complex and difficult, other countries have shown that major advances can be made in reducing death, disease, crime and corruption. As noted previously, Switzerland expends a higher proportion of funds than Australia does on treatment and care for drug addicts (harm reduction, medical care, specialised counselling, residential therapy centres, drug wards in psychiatric clinics, leisure and work programs, transitional facilities), prevention, research and training. The number of deaths by drug overdose has been halved in Switzerland in the last 6 years[12]: Table: Switzerland - Drug Overdose Deaths 1992-1998
Diversion from criminal justice to health will produce savings. Savings will also be produced by ensuring that both the public sector and the non-government sector provide best practice, evidence-based services. Legislation in relation to alcohol (liquor licensing) and tobacco (sale to under age children) should be stringently enforced. Specific and innovative responses are necessary, particularly if the rise in the number of fatalities by overdose is to be curbed and drug related criminal activity is to be reduced. Education of users, expansion of methadone maintenance services and other treatment options, and an improvement in responses to overdoses would no doubt assist. It is of primary importance that there be multi-party support for policies that have been developed using an evidence-based approach. Law Society's ProposalsThe Law Society is gravely concerned about the continuing expenditure of large amounts of money and resources in trying to deal with the personal use of drugs through the criminal justice system. Criminal prosecution of people for personal drug use has little, if any, effect in reducing drug abuse and related criminal activity. It would be far better to legislate to differentiate between users of illicit drugs and those involved in the drug trade' as commercial dealers, manufacturers and importers, to allow the diversion of users to appropriate education, treatment and rehabilitative services. Also, many users have a chronic dependency and have attempted various forms of treatment, many times, to no avail. These people often have other health and social problems. Some resort to sex work or property crime to pay for drugs. Often, their involvement with the criminal justice system comes when they commit crimes to finance their dependencies. Every day, police exercise their discretion in considering whether or not to charge people for simple use offences. Every day, magistrates and judges exercise all available options to reduce crime by people who have committed crimes to finance their dependencies. They effectively operate their courts as Drug Courts' but repeatedly they are frustrated by the lack of rehabilitation and treatment facilities. Services in Sydney and the metropolitan area are vastly overcommitted and chronically underfunded. The situation is worse in the country. It is vital that more be done to assist people, particularly young people, who are involved with drugs. To enable any programs aimed at assisting drug users to be meaningful, there must be a commitment to funding sufficient and appropriate facilities and services. The Law Society calls for the Government:
Ways of Dealing with Personal Use OffencesThere are a number of ways that personal use offences could be dealt with. As an ideal, the Law Society would like to see a legislative framework whereby personal use of illicit drugs by adults attracts no criminal penalty. The Society is particularly concerned that any change in the way that personal use offences are dealt with does not attract the perception (or actuality) of being a revenue-raising device. If people-both adults and young people-are diverted from the criminal justice system for personal use offences, significant savings would result. This would enable the provision of additional programs for prevention of illicit drug use and to allow expansion of all forms of drug treatment from education through to detoxification and rehabilitation. It would also ensure that supply of treatment meets the demand for it. Some commentators have advocated the legalisation of drugs for personal use-proposals in relation to the types of drugs that might be included extend from cannabis to all illicit drugs, including cocaine and heroin. Other commentators have called for the decriminalisation of personal use offences. It is Law Society policy to seek a review of all legislation dealing with the personal use offences. In this review, the Society would support the decriminalisation of offences relating to the personal use of cannabis and examination of the benefits of extending decriminalisation to offences relating to the personal use of all illicit drugs. Decriminalisation is not legalisation. Decriminalisation of the personal use of small quantities of illicit drugs would see possession and personal use of illicit drugs remaining an offence. However, the Drug Misuse and Trafficking Act 1985 (DMTA) would be amended to remove the risk of arrest and criminal punishment for small quantity possession and personal use offences. That is: legislation would be required to ensure that people who possess and/or use small quantities of illicit drugs are subject only to a fine. Consideration should be given to the way fines would be imposed, administered and collected. These fines could be issued by police, using their accountable discretion. Consideration should also be given to the recording of the issue of fines and what use would be made of those records. It is recommended that the recording of a fine for a personal use offence should not form part of a person's criminal record. There are 4 reasons why personal use offences should be decriminalised:
The number of incidents of possession and/or use offences recorded by NSW Police is rising [see NSW Bureau of Crimes Statistics and Research extract-Attachment A1]. The current maximum penalty for possession of prohibited drugs and self-administration, or use, offences is a fine of 20 penalty units (currently $2,200) and/or 2 years imprisonment. The current maximum penalty for possession of a small quantity of any prohibited plant or prohibited drug (including cannabis) is 50 penalty units ($5,000) or 2 years imprisonment. Imprisonment:The most important change required to existing legislation in relation to personal use offences is the removal of the possibility of sending someone to prison for small quantity personal use offences. Judicial Commission of NSW statistics reveal that in the 2 years between December 1996 and November 1998, 8 adults were imprisoned by the Local Court for using heroin. In the same period, 94 adults were imprisoned by the Local Court for possessing less than 5g of heroin. In the period from September 1989 to June 1997, 53 children were detained in Juvenile Justices Centres under control orders for the possession/use of heroin (opiates). 10 of those children had no prior record. Statistics compiled by the Department of Juvenile Justice show that in 1996/1997 alone, 13 children were detained under control orders for the possession/use of opiates. The Court rarely imprisons people for small quantity cannabis personal use offences. This shows that the Court believes that imprisonment is inappropriate. However, so long as imprisonment remains an option, the penalty may be used. In the 2 years between September 1996 and August 1998, 2 adults were imprisoned by the Local Court for using cannabis. Statistics compiled by the Department of Juvenile Justice show that in 1994/1995, 3 children were detained in Juvenile Justices Centres under control orders for the possession/use of cannabis. In 1996/1997, the Children's Court dealt with 389 children in relation to possession/use of cannabis. 1 child was detained under a control order, 155 were fined and 122 were dismissed with a caution. In the 2 years between September 1996 and August 1998, 154 people were imprisoned by the Local Court for possessing cannabis and 46 people were imprisoned for cultivating cannabis. The Local Court can only deal with matters where less than the commercial quantity of cannabis is involved. The penalty notice system in the Australian Capital Territory and South Australia in relation to personal use of cannabis offences has been criticised because many people do not pay their fines. As a result, people find themselves in prison not for the cannabis offences but for non-payment of fines. Under the system now in place in New South Wales, an extensive range of enforcement options must be exhausted (including failure to comply with a community service order) before anyone may be imprisoned for defaulting on a fine. Criminal Record:By enabling the police to deal with small quantity personal use offences by penalty notice, the matter will only be brought before the Court if the person issued with the penalty notice wants the Court to deal with the matter. This will result in a large reduction in the number of personal use of drug matters before the Courts. Subject to appropriate legislation being enacted, a person will not have a criminal record because they have only committed a personal use offence. Judicial Commission of NSW statistics reveal:
People are often required to disclose whether they have a criminal conviction, for example, when applying for employment, passport or visas and making insurance declarations. The current Criminal Records Act 1991 provides that, after a certain period of crime free behaviour (10 years for adults and 3 years for children), it is not usually necessary to disclose a criminal conviction. However, there are some important exceptions:
Amount of the Fine:The majority of people are fined for possession, use and cultivation offences. Fines for people convicted of using heroin between December 1996 and November 1998 range between $50 and $2,000. Over 70% were required to pay fines of $350 or less. Fines for people convicted of using cocaine range between $200 and $500. 80% were required to pay fines of $300 or less. The fines for adults convicted of using cannabis range between $50 and $2,000. Over 70% were required to pay fines of $200 or less. The majority of children convicted of possession/use heroin in the period September 1989 to June 1997 were dealt with by way of probation and supervision (28%) or detention under a control order (25%). 16% were fined, with fines ranging between $50 and $500. 34% of children dealt with for possession/use of cocaine, amphetamines or stimulants were fined, with fine amounts ranging between $25 and $500. Nearly 80% were required to pay fines of $200 or less. The fines for children convicted of possession/use cannabis varied between $25 and $1,000. Over 70% were required to pay fines of $150 or less. In levying the amount of the majority of the fines imposed within such a small range, the Society believes that the Court has well demonstrated its view of the seriousness of the personal use of cannabis offences and the appropriate penalty level. The Society suggests that the community would regard consistent fines, set at an amount between $25 and $250, as the appropriate penalty for personal use, possession and cultivation of small quantities of cannabis and between $50 to $500 for personal use and possession offences in relation to other illicit drugs. [Copies of the Judicial Commission of NSW and Department of Juvenile Justice statistics are available on request.] OptionsChanging legislation in relation to personal use offences would enable the diversion of users away from courts towards education, assessment and treatment. There are a number of options that could operate concurrently, thereby providing the very necessary flexibility of dealing with individual users in the most beneficial way. As a pre-condition, however, the Law Society submits that imprisonment as a sentencing option for personal use offences should be removed for all illicit drugs and that the fine penalty structure should be revised to more closely reflect the fines currently being levied by the Court. The Society invites consideration of legislative amendment that will provide a framework for the following DIVERSIONARY OPTIONS: 1. Children and Personal Use OffencesRecent studies conducted by the National Drug and Alcohol Research Centre in 1998 and the 1995 National Household Survey (referred to earlier in this paper) have found that the average age of initiation to drug use has declined steadily in recent years. In particular, the younger age of initiation to heroin use is associated with polydrug use, overdose and crime. The studies' findings indicate that there has been both an increase in the willingness of young people to experiment with drugs, particularly heroin, and an increased availability of the drug.
The Young Offenders Act 1997 (YOA) is the legislative base for the comprehensive scheme of warning, cautioning and youth conferencing for young offenders. As the YOA is currently drafted, a juvenile is eligible to be dealt with under the Act if found to be cultivating, or aiding or abetting the cultivation of a prohibited plant. Due to what is understood to be a drafting oversight, the legislation does not provide for possession or personal use and other minor drug offences to be dealt with under the YOA. Some police officers believe that their previous discretion to warn or caution young offenders for offences that do not come within the ambit of the YOA has been removed. The Society is concerned that the practice of fining young people for offences is neither a practical nor appropriate way of dealing with offending behaviour, particularly drug-related matters. The legislation should be amended to place beyond doubt that minor drug offences may be dealt with within the YOA framework. These are offences that could be very appropriately dealt with by cautioning or by referring the young person to a Youth Justice Conference. Bringing minor drug offences within the operation of the YOA would provide a formal opportunity for young offenders to be given information about the dangers of drug use and put in touch with counsellors, support groups and rehabilitation services. The YOA is seen as a good forum for dealing with these offences. It would bring young people into contact with qualified counsellors, where reasons for the offending behaviour can be addressed and programs can be developed to assist the person. The process is also confidential. There is a great concern that young people do not always seek help for fear of being prosecuted. While it may be oversimplifying the circumstances, it is possible that Anna Wood's friends would have sought help more quickly had she been under the effects of alcohol rather than ecstasy. The YOA would provide appropriate, and very desirable, flexibility in dealing with young people who have committed minor drug offences and would provide better outcomes for those young offenders. [See sections 10-18 DMTA-Attachment A-2-A10] 2. Young Adult and Older Offenders
As noted in relation to juvenile offenders, cautioning provides a formal opportunity for suspects to be given information about the dangers of drug use and put in touch with counsellors, support groups and rehabilitation services. In Victoria, it is a state-wide initiative that low level cannabis users are cautioned, rather than automatically charged with a criminal offence. In operation since 1 September 1998, the Cannabis Cautioning Program followed an extensive and successful pilot program in the Police I (Broadmeadows) district. The Cannabis Cautioning Program diverts low-level cannabis users to appropriate help and support rather than involving them in the criminal justice system. People found to be in possession of, or using, dried cannabis leaf, stems or seeds weighing not more than 50 grams for personal use may be issued with a caution notice instead of being charged. Caution notices given to offenders contain information about health and legal ramifications of cannabis use and a 24-hour confidential drug information line. Strict conditions must be met before a caution notice is issued. Conditions include offenders having no criminal history of drug offences, admission to the offence and consent to being cautioned. A maximum of two cautions may be issued to the same person. Also on 1 September 1998, a second pilot-the Drug Diversion Pilot Program-commenced in the Victorian police district of Broadmeadows. Under this program, offenders caught with illicit drugs other than cannabis can be cautioned. The Drug Diversion Pilot Program includes more stringent conditions than the Cannabis Cautioning Program, with offenders having to agree to report for an assessment and appropriate treatment at a drug treatment service before a caution notice is issued. Possession of illicit drugs remains a criminal offence. If an offender is cautioned and fails to attend an arranged appointment for assessment and treatment, under the Drug Diversion Pilot Project, the matter would proceed to Court. Early intervention, such as in the Diversion Pilot, has the potential to connect early stage illicit drug users with services offering information, treatment and support. People will be made aware of the health risks associated with drug abuse and will be assisted to explore a healthier life option.
How Infringement Notice systems work:A penalty notice requiring payment of the fine would be issued by a police officer. If the person pays the fine, then there will be no further action taken in relation to the alleged possession offence. Payment of the fine does not mean that the person admits the offence. However, the person could choose to have the matter dealt with by the Court, in the same manner as other penalty notice offences. If the person fails to pay the fine within the time specified in the penalty notice, enforcement proceedings could be taken by the State Debt Recovery Office under the Fines Act 1996. The Australian Capital Territory and South Australia already deal with cultivation possession and consumption of small quantities of cannabis offences in the manner supported by the Society. However, it is possible for people in the ACT and SA to be jailed for non-payment of fines. This should not occur under the system for enforcement of payment of fines now in place in New South Wales. In the Australian Capital Territory, it is an offence to cultivate, or participate in the cultivation of, a prohibited plant and to possess a prohibited substance. Where not more than 5 plants are cultivated, or the offence relates to a quantity of cannabis leaf not exceeding 25 grams, the maximum penalty is $100.00. In South Australia, the fines for simple cannabis offences range between $50 and $150. It should be noted that the 1995 National Drug Strategy Household Survey found that, in South Australia and the ACT where cannabis infringement notices systems are in place, cannabis consumption is no higher than in other parts of Australia. In New South Wales, small quantities of cannabis and other illicit drugs are set out in Schedule 1 to DMTA 3. Crimes Committed by Drug Users (both adult and juvenile)The number of people imprisoned for drug related offences is increasing, as is the rate at which those people are being imprisoned. New South Wales now holds more people in custody than at any time in its history, as graphs of the fluctuations in the remand, sentenced inmate and total full-time inmate populations extracted from statistical reports issued by the Department of Corrective Services show [see Attachment A11-A12]. The NSW Department of Corrective Services estimates that up to 80% of the inmate population is received into custody in relation to alcohol and other drug-related matters such as property crime, break and enter offences and robbery. The Senior Solicitor for Legal Aid's Children's Legal Service has commented that, similarly, close to 80% of matters coming before the Children's Court are drug charges or drug related. Sufficient funding should be made available to enable the expansion of the range and capacity of drug and alcohol treatment in prisons and detention centres, including remand facilities, so that treatment is available to all inmates who seek it. The treatment provided to inmates should be of the same standard as that available in the community, and the two treatment systems should be linked to enable continuity of treatment when the inmate is released from custody. However, the Senior Children's Magistrate has highlighted the acute shortage of residential and outpatient beds in specialist adolescent detoxification and drug rehabilitation programs. A great number of people are remanded in custody solely because there are no available places in treatment and rehabilitation programs. It is imperative that sufficient treatment and rehabilitation programs are provided. The following options would then enable more adult and juvenile drug users who have committed crimes in order to finance their drug use to be diverted from prison or detention, pending completion or participation in treatment programs, and perhaps avoid a sentence of imprisonment.
The Model Criminal Code Officers Committee in its Serious Drug Offences discussion paper canvassed a proposal of exempting from liability for trafficking a habitual user who was caught selling a small quantity of a controlled drug to another habitual user for personal use [see Attachment A13-A17]. The recommendation was not included in MCCOC's final report in view of its controversial nature'. The judiciary was generally of the view that consideration of habitual use comprises part of the Court's sentencing discretion. Many drug users carry on the business of dealing to finance their own drug wants/needs. These wants and needs can range from the recreational user (who occasionally buys a quantity of drugs, retains a portion for his/her own use and on-sells the balance-perhaps for a little profit-to friends or acquaintances) to addicts (who regularly on-sell drugs to finance their own addiction). In 1998, section 25A was inserted into the DMTA which makes it an offence, on 3 or more occasions within 30 days, to supply a prohibited drug, other than cannabis, for financial or material reward [see Attachment A18-A19]. While it should be arguable that dealing to support an addiction is not supply for profit, there is anecdotal evidence that only user dealers are being caught-not the Mr/Mrs/Ms Mediums or Bigs as was the stated intent for the legislation. This was a concern of many commentators when the legislation was being debated in Parliament. The maximum penalties are extremely high: 3,500 penalty units ($385,000) and/or 20 years imprisonment (statistics are not yet available from the Judicial Commission with respect to convictions for this offence).
Where an offender pleads guilty to an indictable offence which would be likely to lead to the imposition of a sentence of imprisonment, the offender may make an application to the appropriate judicial officer to enable the offender to undertake a program of treatment and/or rehabilitation or a scheme of community service and rehabilitation, with a view to attempting to avoid a sentence of full-time imprisonment. At the present time, the Drug Court option is not available to people who are charged with a supplying offence under section 25A DMTA. The following suggested scheme would enable people charged under section 25A DMTA, or charged with committing other crimes, for the purpose of obtaining money to buy drugs to enter into suitable programs before being sentenced to imprisonment. The judicial officer, in conjunction with a probation officer, would devise a suitable program for the offender. However, no guarantee would be given to the offender that undertaking the program would mean that a prison sentence is avoided. The scheme may involve conditions such as participation in treatment and/or rehabilitation programs, community service, restitution and suitable apology to victim, if any, etc. At the appearance for sentence, the sentencing judicial officer is entitled by statute to have regard to the conduct of the offender during the period of remand as evidence of special remorse. In some cases, this will justify the substitution of an alternative to imprisonment and, in other cases, will justify a substantially reduced full-time sentence. Amend Section 442C - Conduct of Offender after OffenceIt is suggested that the Crimes Act 1900 be amended as follows:
(1) In proceedings in any Court for any indictable offence the offender may, upon entering a plea of guilty, offer undertakings to the court as to the offender's behaviour between the date of the undertakings and the date of sentence for the offence. Consideration might also be given to a scheme whereby persons, who otherwise would be refused bail, might be considered favourably for bail if they have a demonstrated willingness to participate in such a scheme and would be suitable for it. An appropriate amendment could be made to section 36 of the Bail Act 1978. 4. Chronic Heroin Users - Safety and Treatment Programs
The Law Society believes that the Ministerial Council on Drug Strategy decision on the ACT heroin trial should be allowed to proceed without further political interference. The proposed trial would represent Stage 3 of research by the National Centre for Epidemiology and Population Health into the question: Should a carefully controlled and rigorously evaluated trial be conducted to determine whether or not the prescription of pharmaceutical heroin (diacetylmorphine) is a useful addition to current maintenance treatment for dependent heroin users? Following evaluation of a small-scale pilot study, which would see heroin made available on a controlled basis to 40 people, Stage 4 of the research would test whether or not the provision of heroin in a controlled manner offers significant treatment advantages over what is currently available. It is important to note that this method of heroin maintenance would be aimed at attracting people into treatment who otherwise would not enter into treatment or who have persistently failed with other treatment methods, such as methadone maintenance. The Ministerial Council on Drug Strategy (comprising the National, State and Territory Health and Police Ministers) is Australia's paramount drug policy making body. On 31 July 1997, the Council decided, on a 6:3 majority, to allow the ACT Heroin Trial to proceed. However, on 19 August 1997, the Federal Cabinet determined that the trial would not be permitted on the basis that the trial could not proceed unless the Commonwealth passed special legislation permitting the importation of heroin. The Federal Attorney General and the Health Minister were not of this view. Legislation exists in New South Wales to allow drugs that have been ordered destroyed to be possessed, used, manufactured or produced, and supplied (under licence and authority) for scientific research. Legislative amendment may be required to allow the application of drugs for research within the ACT and also to enable the transport of drugs across borders. The Commonwealth would have to grant the appropriate licences and authorities for the conduct of the research and application of the drugs. Switzerland has conducted a direct observational study to assess the feasibility of heroin and other opioid prescription, to assess the suitability of the treatment method for heroin addicts who had failed at other treatments, and to assess the impact of such treatment on health and social outcomes. The World Health Organisation Substance Abuse Department has undertaken the co-ordination of an external and independent evaluation of the Swiss study and the External Evaluation Panel has recently released its Report.[13] In its Executive Summary, the Report states: The external evaluation supported the study conclusions that: (1) it is medically feasible to provide an intravenous heroin treatment programme under highly controlled conditions where the prescribed drug is injected on site, in a manner that is safe, clinically responsible and acceptable to the community; (2) participants reported improvements in health and social functioning and a decrease in criminal behaviour and in reported use of illicit heroin." Put simply, over the course of the Swiss studies:
The Evaluation Report stated, however, that the knowledge base about such studies is not large enough to determine cost-effectiveness. Further evidence derived from scientific studies and expert clinical opinion is essential to inform the debate about the management of heroin dependence.
The Wood Royal Commission found good reasons for the existence of approved injecting rooms in high risk locations and favoured their establishment. The Commission invited consideration of an amendment of the Drug Misuse and Trafficking Act to provide for tolerance rooms and suggested the following model for facilities that would operate:
The NSW Parliamentary Joint Select Committee into Safe Injecting Rooms recommended, on a 6:4 majority, that establishment or trial of injecting rooms should not proceed. However, as the Commission stated: ... to shrink from the provision of safe, sanitary premises where users can safely inject is somewhat short-sighted. The health and public safety benefits outweigh the policy considerations against condoning otherwise unlawful behaviour." The extraordinary amount of public interest in the recent decision of the Wayside Chapel to open a tolerance room in its premises in Kings Cross demonstrates how essential it is to properly evaluate and analyse the benefits of such an option. 5. Medical use of CannabisCan marijuana relieve health problems? Is it safe for medical use? Public opinion on the medical use of marijuana is sharply divided. Medical opinion is that there is potential for using the drug in dealing with the effects of certain conditions. In February 1999, the Queensland Supreme Court dismissed charges against a 54 year old invalid pensioner charged with cultivating marijuana because the drug had been used to ease the accused's chronic back pain. Western Australian Courts have accepted cannabis use for pain relief as a mitigating factor in drug cases, but it has not led to charges being dropped. Conversely, a Welsh judge reportedly sentenced a person to 12 months imprisonment for (presumably) possessing and using cannabis-quantities are unknown. The judge did not accept that the drug was used to alleviate the accused's chronic arthritis pain, on the basis that the accused had not shown that he had sufficiently pursued standard pain relief options. In November 1996, voters in California and Arizona passed referenda designed to permit the use of marijuana as medicine. Arizona's referendum was invalidated 5 months later. Despite being incorporated into the state's Health and Safety Code, the Californian law has not been implemented. In November 1998, voters in six US states (Alaska, Arizona, Colorado, Nevada, Oregon and Washington) passed ballot initiatives in support of medical marijuana. In January 1997, the US White House Office of National Drug Control Policy asked the Institute of Medicine to conduct a review of scientific evidence to assess the potential health benefits and risks of marijuana and its constituent cannabinoids. Cannabinoids are the group of compounds related to THC (the primary psychoactive ingredient in marijuana). In its report, which was released earlier this year, the Institute summarises and analyses what is know about the medical use of marijuana; it emphasises evidence-based medicine (derived from knowledge and experience informed by rigorous scientific analysis), as opposed to belief-based medicine (derived from judgment, intuition, and beliefs untested by rigorous science). The Institute found that the accumulated data indicate a potential therapeutic value for cannabinoid drugs, particularly for symptoms such as pain relief, control of nausea and vomiting, and appetite stimulation. The Institute made the following recommendations[15]:
Cannabinoid Biology: Research should continue into the physiological effects of synthetic and plant-derived cannabinoids and the natural function of cannabinoids found in the body. Because different cannabinoids appear to have different effects, cannabinoid research should include, but not be restricted to, effects attributable to THC alone. |
