Law in association with the criminalisation of certain drugs.
LAW 206 Assignment
(a)
.0 - Introduction
The criminalisation of the use of certain drugs over the last century has been a result of economic, political and cultural factors, rather than an assessment of its potential harm to society.1 This has resulted in statutes that are counter-productive in controlling the drug problem. Criminalisation aims to protect individuals and society from the myriad of harms that drugs cause. Yet, prohibition has created more harm to society through an increase in health problems and crime.
The public, politicians, police and media are inextricably linked, and together they emphasise the importance of drug prohibition. A society can only exist when there are shared norms and values, and politicians in particular consider the intoxication of illicit substances as a threat to social decorum and order.2 Therefore, drug use and its prohibition must be assessed 'as part of a larger and more inclusive social framework.'3
2.0 - The Counter-Productivity of Criminalisation
The statutes pertaining to the criminalisation of drugs over the last century have been counter-productive in relation to its impact on health and crime. The covert nature of drug abuse facilitates the spread of diseases such as HIV and hepatitis, while the unpredictable levels of purity increase the possibility of lethal overdose.4 This causes a detrimental effect on the health of this section of society.
Secondly, the criminalisation of drugs creates a black market, increasing organised crime and forcing users to find ways of financing their habit. Mukherjee reveals, that 90 per cent of drug addicts specified 'money for drugs' as their main reason for committing property crimes.5 Furthermore, drug users often become drug suppliers in order to fund their habit. Therefore, although laws exist to improve the safety of our community, prohibition actually increases the prevalence of crime. Criminalisation is thus counter productive and detrimental in relation to the health of drug users and the prevalence of crime.
3.0 - The perceived need for criminalisation
In modern day Australia; politicians, the public and the media generally perceive criminalisation as necessary to maintain decorum and social order. However, Australia's drug laws did not develop as a response to the perceived risk of addiction or dangers to public health.6 Rather they were a result of racism and pressure from the international community.7
During the early twentieth century, illicit substances were perceived to be under control, there was no significant 'drug problem' in Australia, nor was there political concern that one may develop.8 Manderson asserts that the first attack on non-medicinal use of opium was a result of 'increasing virulent xenophobia and hatred'9 towards the Chinese. Subsequently, in the nineteen twenties, legislation such as the Opium Proclamation 1926, were enacted pre-emptively and in compliance with international pressures.10
Throughout the remainder of the twentieth century, the statutes pertaining to the criminalisation of drugs continued to evolve. Prohibition was accepted as the only method of dealing with drugs, albeit the fact that it was originally based on public xenophobia and pressure from the international community. 11 This gradual drift towards complete control made it difficult to question or modify drug policy.12
Despite this, the prohibition of illicit substances is still perceived as necessary in Australia. Politicians continue to emphasise the need to be 'tough on drugs,' and $217 million has been allocated 'to stop trafficking and dealing in illegal drugs.' For example, in the Customer Amendment (Criminal Sanctions and Other Measures) Act 2000, the maximum penalty for trafficable quantity of a narcotic substance other than cannabis jumped from $100,000 to $500,000.13 However, despite the increase in penalties and funding to curb drug trafficking, 'drug offences in Australia continue to be enforced primarily against users.'14 Therefore, such policies are being counter-productive by streamlining drug users into the criminal justice system, rather than rehabilitating and educating the offender.
Politicians are elected to epitomise the views of the public and thus 'To stay in power governments must be in general agreement with "the community."' 15. In 1997, the federal government introduced the 'tough on drugs' policy in response to the 'relentless criticism it faced from the community' following the proposed heroin trials. 16
The media is also inextricably linked to the politicians and the public, and are utilised by the public as a vehicle of expression. The media, according to Elliot and Chapman, reinforce the idea that drug use is a problem of individual morality and that drugs threaten the values of society.17 From a conservative viewpoint, they continue to highlight the need for stricter law enforcement in combating the 'drug problem.'18 However, the media has no vested interest in drug policy; their objective is to sell papers and to achieve high ratings. Hence exaggeration and sensationalism are prevalent within stories, in an attempt to attract reader attention.19
4.0 - Enforcement of Modern Drug Policy
Statutes have provided the police with increasingly greater powers in an attempt to fight the 'drug war.' In times of war, 'extraordinary measures' are needed, yet these are often at the expense of individual liberties.20 The Police Powers (Drug Premises) Act21 empowers the police to search a declared 'drug premise' without a search warrant22 and the onus of proof is placed on the accused to prove their innocence.
Politicians have permitted the use of intrusive investigative powers such as phone tapping and electronic surveillance.23 Such techniques were originally ...
This is a preview of the whole essay
4.0 - Enforcement of Modern Drug Policy
Statutes have provided the police with increasingly greater powers in an attempt to fight the 'drug war.' In times of war, 'extraordinary measures' are needed, yet these are often at the expense of individual liberties.20 The Police Powers (Drug Premises) Act21 empowers the police to search a declared 'drug premise' without a search warrant22 and the onus of proof is placed on the accused to prove their innocence.
Politicians have permitted the use of intrusive investigative powers such as phone tapping and electronic surveillance.23 Such techniques were originally constrained to investigations of 'serious narcotic offences' by the Federal police.24 However, politicians, through the enactment of the Telecommunications (Interception) Act25 have extended this power to the NSW police. Savell argues that such techniques allow the police to misconstrue evidence, and disadvantage the defence.26 Therefore, although the politicians consider increases in police powers necessary to fight this 'drug problem'- the infliction of individual liberties can never be justified.
5.0 - Conclusion
The criminalisation of illicit substances has been detrimental to the health, welfare and safety of society. Current statutes pertaining to criminalisation have evolved from laws that were established on public xenophobia and compliance with the international community. Our predecessors failed to adequately assess the impact of such laws, and whether it was necessary to prohibit illicit substances although there was no definite 'drug problem.' Despite this, current politicians consider the criminalisation of illicit substances crucial and emphasises the necessity of being 'tough on drugs.' Rather than being perceived as a social or health concern, politicians and the police perceive drugs as a law enforcement issue. The politicians continue to increase police powers, yet such powers have not eradicated the drug problem. Rather, they have the potential to inflict upon individual liberties. Therefore, despite these laws and powers, the criminalisation of illicit substances has failed to curtail the drug problem. Prohibition has been detrimental to the health of users, through the significant increase in drug related diseases. Laws exist to improve the safety of our community. Yet criminalisation has been injurious through increasing the prevalence of crime. Therefore, despite an increase in penalties and police powers, criminalisation continues to be counter-productive in curtailing the 'drug problem.'
(b)
.0 - Introduction
Australia's total prohibition policy has clearly not achieved its objective of substantially reducing marijuana consumption. While the prohibition of marijuana remains entrenched within our legal system, we must endeavour to find a more effective alternative. There are two main alternatives to the criminalisation of marijuana; decriminalisation and legalisation. Both of these options, however, can have different meanings for different authorities. In compliance with Hamilton et al27 and Krivanek;28 decriminalisation removes the criminal element from the use of marijuana, however it is still an act against the law. Legalisation, on the other hand, lifts all controls on illicit drugs, and permits the sale of marijuana on the open market.29
2.0 - Decriminalisation
Decriminalisation removes the criminal component from drug use, through either the modification or removal of penalties, or through a change in law enforcement. This approach considers marijuana use a health and social issue, and thus aims to have users come into contact with the health and welfare system, rather than the criminal justice system.30 Through the acceptance that marijuana will never be completely eradicated, decriminalisation aims to reduce harm to the individual and society.31 The various levels of decriminalisation are as follows:
2.1 - Administrative Expediency Principle
The first alternative to criminalisation is to permit licensed premises to sell marijuana over the counter. 32 This system currently operates in the Netherlands, and since the liberalisation of its policy, marijuana use has not increased.33 The possession and use of marijuana is not an offence, and the 'police are only required to confront marijuana dealers when they advertise publicly or conduct their business in a provocative manner.'34 The major disadvantage with this option is the increase in drug tourism, however it is likely to be substantially less in Australia, due to its isolation and lack of shared borders with other countries.35
2.2 - Formal Caution and/or Referral
This option penalises offenders for using or possessing marijuana. The police implement a formal caution and possibly a referral to an education or treatment program.36 This level of decriminalisation provides an alternative to court proceedings and removes the stigma of a criminal record.37 Rather than being convicted, offenders are provided with information about the harms of marijuana use and the consequence of re-offending. This approach relieves the congested court system, and aims to educate the offender.
2.3 - Infringement Notice
A third alternative views marijuana use as a civil rather than a criminal offence, and offenders incur 'on the spot' fines.38 Criminal sanctions continue to apply to the cultivation, possession and distribution of large quantities of marijuana. South Australia has adopted this system since 1987, however, Brown et al reveals that the Cannabis Expiation Scheme has failed to reduce cannabis use and the rate of payment is consistently low.39 Despite this, such an option would reduce the number of marijuana offences processed through the court system, and it would provide revenue for the government that could be allocated towards drug education programs.
2.4 - Partial Prohibition
Under partial prohibition, the possession and cultivation of small amounts of cannabis for personal use are legal. The possession of traffickable quantities of marijuana would continue to remain illegal. This option would significantly reduce the black market and its associated harms.40
2.5 - Evaluation of Decriminalisation
The decriminalisation of marijuana would be an effective alternative in comparison to prohibition. Firstly, the implementation of formal cautions or fines would significantly reduce the number of marijuana offences processed through the court system. Approximately 50 per cent of drug offenders are convicted for possession or use of marijuana,41 and decriminalisation would save time and money, enabling the courts to concentrate on more serious matters. Secondly, decriminalisation would free up the scarce criminal justice resources and enable the police to focus on violent and property crimes.42 Revenue raised from fines could be allocated more effectively towards education and treatment programs and with the implementation of the part prohibition or the expediency option, the black market would be significantly reduced, or even eradicated.43
The risk of increased marijuana use is a possibility, and experience in markets such as tobacco and alcohol suggest that increased availability does lead to an increase in use.44 However, the Netherlands has a lower rate of cannabis use than both the United States and Australia.45 Furthermore, the available evidence suggests that the 'decriminalisation of marijuana possession [in the Netherlands] had little or no impact on rates of use.'46 A further disadvantage is the possibility of drug tourism, however as discussed above, it is likely to be substantially less in Australia, due to its isolation and lack of shared borders with other countries.47
3.0 - Legalisation
Legalisation, as the second alternative to criminalisation, would lift all controls and permit the sale of marijuana on the open market.48 Marijuana would be regulated in a similar manner as alcohol or tobacco. This option enables the government to control the 'quality, price, method of manufacture, cultivation, distribution, importation and exportation'49 of all cannabis products. It is most probable that the advertising of marijuana would be prohibited and that licensed outlets or pharmacies would sell the drug.50 The government could raise considerable revenue through high taxes, and this could be effectively reallocated to education and treatment programs. The cost of the drug, however, must still be low enough to cut out the black market. In addition, legalisation would have a positive effect on employment, creating jobs in the drug administration and distribution sectors.51
The major disadvantage of legalisation is the impact it may have on individual use. However, as discussed previously, increased availability did not increase use in the Netherlands. Legalisation could also promote the message that drug use condoned- this alludes to moral issues, and whether it can ever be justifiable to live in a community where the intoxication of illicit substances is tolerated. However, as Wodak and Moore emphasise, it is inconceivable that legalisation 'would ever gain community support, or be considered as consistent with the international system of drug treaties.'52
4.0 - Conclusion
There are two alternatives for the criminalisation of marijuana; decriminalisation and legalisation. Both policies advocate the right of an individual to be sovereign over his or her own body. Individual drug use is a 'self harm,' it does not enter into the public sphere, and thus should not be regulated by the criminal law. Drug use is a social and health issue, and should be treated as such. The criminalisation of illicit substances has not only been ineffective, but counter-productive, and it has failed to adequately protect the individual and society as a whole from the negative effects of drug use.
Commentators continue to ask what the solution is to our drug problem. But the truth is that there is no one solution to the drug problem.53 A drug free society is an unattainable utopian objective, and drug use will always continue to be prevalent within society. While the prohibition of marijuana remains entrenched within our legal system, we must endeavour to find a more effective alternative. There are two main alternatives to the criminalisation of marijuana; decriminalisation and legalisation. Either of these alternatives would treat drug use as a health and social rather than a law enforcement concern. This would enable Australia to more effectively reduce the negative effects of drug use and progress towards a healthier society.
Reference List
- Alternative Systems of Cannabis Control in New Zealand: A Discussion Paper. Drug Policy Forum Trust, Wellington, 1997. http://www.nzdf.org.nz/executiv.htm
- Bertrand, A. Decriminalisation, Journal of Drug Issues, Fall 90, vol. 20, issue 4, at 533.
- Bronitt, S and McSherry, B. Principles of Criminal Law, 1st ed, Pyrmont, N.S.W, LBC Information Services, 2001
- Brown, D. et al, Criminal Laws: Material and Commentary on Criminal Law and the Process of Law in NSW (2001), The Federation Press, Sydney.
- Chadwick, S. Inquiry into the Public Health Strategies Related to Cannabis Use and the Most Appropriate Legal Status, Report of the Health Committee, 2003. www.ukcia/research/NewZealandInquiryAppropriateLegalStatus.pdf
- Commonwealth Government, Tough on Drugs: The Right Approach for the Right Results, Phamplet, Canberra, http://www.drugs.health.gov.au/campaign/materials.htm
- Elliot, A.J. and Chapman, S. Heroin Hell Their Own Making: Construction of Heroin Users in the Australian Press 1992-1997. Drug and Alcohol Review, vol. 19, no. 2, 2000.
- Hamilton, M. King, T. and Ritter, A. Drug Use in Australia: Preventing Harm, 2nd ed, Oxford University Press, Melbourne, 2004.
- Jones, B. Heroin Crisis, Bookman Press, Melbourne, 1999.
- Knipe, E, Culture, Society and Drugs: The Social Approach to Drug Use, Waveland Press, Illinois, 1995, at 329.
- Krivanek, J. Understanding Drug Use: The Key Issues, National Library of Australia, Sydney, 2000 .
- Manderson, D. From Mr Sin to Mr Big - A History of Australian Drug Laws, Melbourne: Oxford University Press, 1993.
- Manderson, D. Trends and Influences in the History of Australian Drug Legislation, Journal of Drug Issues, Summer 92, Vol 22, Issue 3.
- McDonald, D. et al. Legislative Options for Cannabis Use in Australia, Commonwealth of Australia, Monograph no. 26, 1994.
- Mugford, S. Policing Euphoria: The Politics and Pragmatics of Drug Control, in Moir, P and Eijkham, H, Policing Australia: Old Issues, New Perspectives. Macmillan Press, Melbourne, 1992.
- Mukherjee, S. and Jorgensen, L. Burglary: A Social Reality, (1986) Proceedings of Seminary on Burglary, Australian Institute of Criminology, Canberra.
- Reinarman, C. and Duskin, C. Dominant Ideology and Drugs in the Media, International Journal on Drug Policy, 1992, Vol 3, no 1.
- Savell, K, Bugs in the System, in Hogg, R and Sharpe, A. LAW206 Criminal Law and Procedure Unit Materials, Vol. 3. Macquarie University 2004.
- Single, E. The Impact of Marijuana Decriminalisation: An Update. Journal of Public Health Policy. Vol 10 at 115.
- Weatherburn, D. and Jones, C. Does Prohibition Deter Cannabis Use? Crime and Justice Bulletin no. 58, NSW Bureau of Crime Statistics and Research, Sydney, 2001.
- Wodak, A. and Moore, T. Modernising Australia's Drug Policy, University of New South Wales Press, Sydney, 2002.
Mugford, S. Policing Euphoria: The Politics and Pragmatics of Drug Control, in Moir, P and Eijkham, H, Policing Australia: Old Issues, New Perspectives. Macmillan Press, Melbourne, 1992.
2 Bronitt, S and McSherry, B. Principles of Criminal Law, 1st ed, Pyrmont, N.S.W, LBC Information Services, 2001.
3 Knipe, E, Culture, Society and Drugs: The Social Approach to Drug Use, Waveland Press, Illinois, 1995, at 329.
4 Jones, B. Heroin Crisis, Bookman Press, Melbourne, 1999.
5 Mukherjee, S. and Jorgensen, L. Burglary: A Social Reality, (1986) Proceedings of Seminary on Burglary, Australian Institute of Criminology, Canberra.
6 Manderson, D. From Mr Sin to Mr Big - A History of Australian Drug Laws, Melbourne: Oxford University Press, 1993.
7 Bronitt, S and McSherry, B. Principles of Criminal Law, 1st ed, Pyrmont, N.S.W, LBC Information Services, 2001.
8 Manderson, D. Trends and Influences in the History of Australian Drug Legislation, Journal of Drug Issues, Summer 92, Vol 22, Issue 3.
9 Manderson, D. Trends and Influences in the History of Australian Drug Legislation, Journal of Drug Issues, Summer 92, Vol 22, Issue 3.
0 Manderson, D. Trends and Influences in the History of Australian Drug Legislation, Journal of Drug Issues, Summer 92, Vol 22, Issue 3.
1 Manderson, D. From Mr Sin to Mr Big - A History of Australian Drug Laws, Melbourne: Oxford University Press, 1993.
2 Brown, D. et al, Criminal Laws: Material and Commentary on Criminal Law and the Process of Law in NSW. (2001), The Federation Press, Sydney.
3 Commonwealth Government, Tough on Drugs: The Right Approach for the Right Results, Phamplet, Canberra, http://www.drugs.health.gov.au/campaign/materials.htm
4 Bronitt, S and McSherry, B. Principles of Criminal Law, 1st ed, Pyrmont, N.S.W, LBC Information Services, 2001 at 818.
5 Krivanek, J. Understanding Drug Use: The Key Issues, National Library of Australia, Sydney, 2000 at 10.
6 Wodak, A. and Moore, T. Modernising Australia's Drug Policy, University of New South Wales Press, Sydney, 2002 at 59.
7 Elliot, A.J. and Chapman, S. Heroin Hell Their Own Making: Construction of Heroin Users in the Australian Press 1992-1997. Drug and Alcohol Review, vol. 19, no. 2, 2000.
8 Elliot, A.J. and Chapman, S. Heroin Hell Their Own Making: Construction of Heroin Users in the Australian Press 1992-1997. Drug and Alcohol Review, vol. 19, no. 2, 2000.
9 Reinarman, C. and Duskin, C. Dominant Ideology and Drugs in the Media, International Journal on Drug Policy, 1992, Vol 3, no 1.
20 Bronitt, S and McSherry, B. Principles of Criminal Law, 1st ed, Pyrmont, N.S.W, LBC Information Services, 2001.
21 Police Powers (Drug Premises) Act 2001 (NSW)
22 Police Powers (Drug Premises) Act 2001 (NSW) s 10 (e).
23 Bronitt, S and McSherry, B. Principles of Criminal Law, 1st ed, Pyrmont, N.S.W, LBC Information Services, 2001.
24 Bronitt, S and McSherry, B. Principles of Criminal Law, 1st ed, Pyrmont, N.S.W, LBC Information Services, 2001.
25 Telecommunications (Interception) Act 1979 (Cth)
26 Savell, K, Bugs in the System, in Hogg, R and Sharpe, A. LAW206 Criminal Law and Procedure Unit Materials, Vol. 3. Macquarie University 2004.
27 Hamilton, M. King, T. and Ritter, A. Drug Use in Australia: Preventing Harm, 2nd ed, Oxford University Press, Melbourne, 2004.
28 Krivanek, J. Understanding Drug Use: The Key Issues, National Library of Australia, Sydney, 2000.
29 Chadwick, S. Inquiry into the Public Health Strategies Related to Cannabis Use and the Most Appropriate Legal Status, Report of the Health Committee, 2003. www.ukcia/research/NewZealandInquiryAppropriateLegalStatus.pdf
30 Hamilton, M. King, T. and Ritter, A. Drug Use in Australia: Preventing Harm, 2nd ed, Oxford University Press, Melbourne, 2004.
31 Hamilton, M. King, T. and Ritter, A. Drug Use in Australia: Preventing Harm, 2nd ed, Oxford University Press, Melbourne, 2004.
32 McDonald, D. et al. Legislative Options for Cannabis Use in Australia, Commonwealth of Australia, Monograph no. 26, 1994.
33 Weatherburn, D. and Jones, C. Does Prohibition Deter Cannabis Use? Crime and Justice Bulletin no. 58, NSW Bureau of Crime Statistics and Research, Sydney, 2001.
34 McDonald, D. et al. Legislative Options for Cannabis Use in Australia, Commonwealth of Australia, Monograph no. 26, 1994.
35 Alternative Systems of Cannabis Control in New Zealand: A Discussion Paper. Drug Policy Forum Trust, Wellington, 1997. http://www.nzdf.org.nz/executiv.htm
36 Alternative Systems of Cannabis Control in New Zealand: A Discussion Paper. Drug Policy Forum Trust, Wellington, 1997. http://www.nzdf.org.nz/executiv.htm
37 McDonald, D. et al. Legislative Options for Cannabis Use in Australia, Commonwealth of Australia, Monograph no. 26, 1994.
38 McDonald, D. et al. Legislative Options for Cannabis Use in Australia, Commonwealth of Australia, Monograph no. 26, 1994.
39 Brown, D. et al, Criminal Laws: Material and Commentary on Criminal Law and the Process of Law in NSW. (2001), The Federation Press, Sydney.
40 Chadwick, S. Inquiry into the Public Health Strategies Related to Cannabis Use and the Most Appropriate Legal Status, Report of the Health Committee, 2003. www.ukcia/research/NewZealandInquiryAppropriateLegalStatus.pdf
41 Brown, D. et al, Criminal Laws: Material and Commentary on Criminal Law and the Process of Law in NSW. (2001), The Federation Press, Sydney.
42 Hamilton, M. King, T. and Ritter, A. Drug Use in Australia: Preventing Harm, 2nd ed, Oxford University Press, Melbourne, 2004.
43 McDonald, D. et al. Legislative Options for Cannabis Use in Australia, Commonwealth of Australia, Monograph no. 26, 1994.
44 Bronitt, S and McSherry, B. Principles of Criminal Law, 1st ed, Pyrmont, N.S.W, LBC Information Services, 2001.
45 Single, E. The Impact of Marijuana Decriminalisation: An Update. Journal of Public Health Policy. Vol 10 at 115.
46 Single, E. The Impact of Marijuana Decriminalisation: An Update. Journal of Public Health Policy. Vol 10 at 115.
47 Alternative Systems of Cannabis Control in New Zealand: A Discussion Paper. Drug Policy Forum Trust, Wellington, 1997. http://www.nzdf.org.nz/executiv.htm
48 Chadwick, S. Inquiry into the Public Health Strategies Related to Cannabis Use and the Most Appropriate Legal Status, Report of the Health Committee, 2003. www.ukcia/research/NewZealandInquiryAppropriateLegalStatus.pdf
49 Bertrand, A. Decriminalisation, Journal of Drug Issues, Fall 90, vol. 20, issue 4, at 533.
50 Alternative Systems of Cannabis Control in New Zealand: A Discussion Paper. Drug Policy Forum Trust, Wellington, 1997. http://www.nzdf.org.nz/executiv.htm
51 Bertrand, A. Decriminalisation, Journal of Drug Issues, Fall 90, vol. 20, issue 4.
52 Wodak, A. and Moore, T. Modernising Australia's Drug Policy, University of New South Wales Press, Sydney, 2002 at 59.
53 Wodak, A. and Moore, T. Modernising Australia's Drug Policy, University of New South Wales Press, Sydney, 2002.
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