7/6 - Drug Law Articles

[Divine Moments]

Hi guys, here are a couple of current articles about drug laws in Australia:


After 33 years, I can no longer ignore the evidence on drugs

As a 33-year police practitioner who was commissioner of the Australian Federal Police during the ''tough on drugs'' period, I fully understand the concerns of those who argue there is no reason to reconsider drug policy and I shared many of them until recent years. My police experience, in both the state/territory and federal jurisdictions, together with some 15 months practising at the private bar as a defence barrister and several years experience in the drug and alcohol fields, has convinced me that I was wrong.

The reality is that, contrary to frequent assertions, drug law enforcement has had little impact on the Australian drug market. This is true in most countries in the world.

In Australia the police are better resourced than ever, better trained than ever, more effective than ever and yet their impact on the drug trade, on any objective assessment, has been minimal.

In the Herald last week, the opposition health spokesman, Peter Dutton, asserted that ''law enforcement does achieve significant results and is not yet at its peak of effectiveness''. I feel compelled to respond, because frankly the evidence does not stack up. In Australia last year, 86 per cent of drug users said that obtaining heroin was ''easy'' or ''very easy'', while 93 per cent reported that obtaining hydroponic cannabis was ''easy'' or ''very easy''.

The price of street heroin and cocaine decreased by more than 80 per cent in the US and Europe in the past 20 years. Despite a huge investment by the US in drug law enforcement, northern Mexico has descended into a drug cartel battlefield, driven by the demand for illicit drugs within the US. At the local level, our young people can and do purchase illicit drugs with ease and generally with impunity. If this is an effective policy at work, I am not sure what failure would look like.

In any conversation, however, it will be important to acknowledge that there are no good guys or bad guys in the debate, only concerned guys. Too often emotion tends to drive public commentary, with proponents of either side branding their opponents as either ''soft on drugs loopies'' or ''the prohibitionist Gestapo''. Neither label is correct or adds value to the debate.

Mr Dutton argues that supporters of the present policy are just as well informed on the subject as those arguing for consideration of change. The truth is I have found it difficult to find informed commentators willing to support the present drug policy. The Australia 21 report was largely based on a roundtable discussion which included two former senior law enforcement officials, two former Commonwealth ministers for health, a former ACT chief minister, two former state Labor premiers, many of Australia's leading drugs researchers and clinicians, parents who had lost children to drugs and two very impressive young people.

The report came to the same general conclusion as the 2011 report of the Global Commission on Drug Policy, which included former presidents of four countries, a former UN secretary-general, a former chairman of the US Federal Reserve and a former US secretary of state.

One of the advocates for drug law reform in South America is Otto Perez Molina, the President of Guatemala, who used to be in charge of drug law enforcement in his country.

We owe it to future generations to be realistic; to be prepared to listen and consider these commentaries and to examine the facts and the options.

Mr Dutton also cautions against the use of experience of other countries that have benefited from liberalising drug policy.

I ask a counter question: why, in the face of a poorly-performing policy, should Australia not attempt to benefit from the international drug policy experience, when we try to learn from international policy advances and errors in every other area?

The more liberal approach to drug policy in Switzerland and Portugal in the past 20 years appears to have achieved many benefits with no serious adverse effects.

In contrast, drug overdose deaths are high and rising in Sweden, one of the last developed countries that champions a punitive drug policy.

In recent decades, Australian governments have relied heavily on drug law enforcement (while providing more limited funding for health and social responses), yet the drug market has continued to expand. Around the world, drug production has increased, drug consumption has increased, the number of new kinds of drugs has increased, drugs are readily available, drug prices have decreased and the purity of street drugs has increased.

It's time the community and its leaders had the courage to look at this issue with fresh eyes.

Mick Palmer, AO APM, is a former commissioner of the Australian Federal Police and is a director of the Australia 21 think tank.

Drug prohibition makes a mockery of criminal law

Recent reports into the criminalisation of drugs in Australia have all concluded that the criminal law is a counterproductive and harmful way to deal with the issue of drug use and addiction, and that prohibition has failed.

It is now time for the legal profession to add its voice to the community's calls for reform.

Australia's criminal law has developed over centuries, by legislation and through the courts as part of the common law. Out of this development came some basic concepts that all law students are taught early in their legal education: mens rea (guilty mind); actus reus (guilty act); the presumption of innocence; the right to silence; and the "golden thread" of the criminal law, that the prosecution bears the burden of proving guilt beyond a reasonable doubt.

Throughout history the common law has never developed criminal offences of drug possession or drug supply. Drug offences are mala prohibita (wrong because prohibited). That is, the drug laws have been created by parliaments over the past century or so. In this time, parliaments have severely eroded and ignored the basic concepts of criminal law that are deeply entrenched in the common law and that underlie legislation.

Due to the widespread popularity of illegal drugs and the fact that only a tiny proportion of drug transactions and drug use are caught by the authorities, parliaments around Australia and the world have continually created legal fictions and extended criminal liability to make it easier to prosecute drug offences.

Some of these legal fictions include: "deemed drug" provisions, where supplying a harmless substance (such as parsley or flour) will be considered supplying an illicit drug if you misrepresent it as such; "deemed supply" provisions, where if you are found to be in possession of a certain amount of drugs it is assumed you had it in your possession for the purpose of supplying it to other people; and "deemed possession", so that if a drug is found in your house it is assumed you are the owner of it, unless you can convince a jury that you had no knowledge of its presence.

All of these creations fly in the face of traditional common law. They infringe the common law right to silence and the right to be presumed innocent until proven guilty. Instead, the onus falls on the defendant to prove innocence. They also erode the concept that the criminal law should only punish acts where a criminal act coincides with criminal intention.

The drug laws have eroded some of the most important protections the common law has given us. It is no surprise then that in many of the common law jurisdictions that have introduced human rights charters, drug laws have been found to be incompatible with them. In the United Kingdom, Canada, New Zealand, and Victoria, drug laws that reverse the burden of proof have been found to be inconsistent with human rights charters that codified the right to be presumed innocent until proven guilty.

In Australia, Victorian woman Vera Momcilovic was arrested when police found at various locations in her apartment (including the refrigerator and the kitchen cupboard) quantities of methylamphetamine. Momcilovic was adamant that the drugs were her boyfriend's (a convicted drug trafficker) and that she had no knowledge of their existence.

Momcilovic was found guilty in 2008 under the Victorian Drugs, Poisons and Controlled Substances Act 1981, which states that if a drug is found on the premises that you occupy, you are effectively in "possession" of them, unless you can satisfy a court otherwise.

Further, under the deemed supply provisions, Momcilovic was presumed to be a drug dealer. She was unable to disprove both of these legal fictions and was convicted of trafficking in a drug of dependence.

The Court of Appeal in Victoria was asked to decide if the drug laws violated the state's new Human Rights Charter Act. The court held that the section requiring Momcilovic to prove she did not know the drugs were in her house was inconsistent with the Charter Act, which provided that people are to be presumed innocent until proven guilty. While the court issued a "declaration of inconsistency", Momcilovic's conviction was upheld.

Momcilovic appealed to the High Court. Unfortunately, the High Court left intact both legal fictions, but at least held that one (deemed possession) was not applicable to the other (deemed supply), and Momcilovic was granted a retrial.

The Australia21 report, released by a group of eminent Australians including now Foreign Minister Bob Carr, demonstrates that business leaders, former senior politicians and bureaucrats, former senior law enforcement officials, medical practitioners and many others are beginning to speak out against drug prohibition and the additional harms it creates.

It is now time that the legal profession denounces the butchering of traditional criminal common law concepts in the name of what is truly ineffective drug law enforcement.

Ben Mostyn and Helen Gibbon are members of the Australian Drug Law Reform Initiative (ADLaRI) based at the UNSW Faculty of Law.