The issue of communicable diseases such as AIDS and hepatitis is one that is always at the fore of drug debates The development of safe injecting rooms is said by many experts to be a step forward in the reduction of such diseases. In 1999, Dr Alex WODAK the president of The Australian Drug Law Reform Foundation commented on the decision to close Sydney’s safe injecting rooms He stated that closing the rooms “could trigger an AIDS epidemic among heterosexuals by 2000” (Sydney Morning Herald, March 10, 1999) WODAK further stated that such an epidemic “would be an enormous burden on the health system to the extent that old people wanting hip replacements will be turned away because of the drain on the public purse.” If WODAK’s words are taken on face value then the benefits of safe injecting rooms to the community are indisputable. Despite the role that Victoria Police has to uphold the law we also have an inherent responsibility to the community to protect life. This can certainly be achieved by supporting the ‘harm minimisation’ approach relevant to safe injecting rooms, the supervision of which will ultimately mean the reduction of shared needles, and therefore the contraction of diseases such as A.I.D.S and H.I.V.
The facilities available with the setting up of safe injecting rooms mean the safe handling and disposal of needles. The fact that the disposal of needles when supervised effectively will mean that needles will not be left by users in places such as parks and streets where other people are at risk of receiving needle-stick injuries. A number of cases have been documented where people have received needle-stick injuries. Children playing in sandpits at schools and in parks have received needle-stick injuries and both they and their families have had to wait for results of tests for blood borne diseases. The advantage to police in this area is that they are less likely to receive such injuries and the chance of receiving any diseases transmitted from users. If safe injecting rooms are set up then there is a likelihood that needles will be disposed of safely and the prospect of suspects or offenders possessing needles is dropped. The result being a diminished probability of needle stick injuries to police. It must also be noted however that there is no security that offenders may still choose to carry or use syringes to cause injury or threaten both police and other members of the community. There is no definitive solution to this age-old crime reduction problem.
With the advent of safe injecting rooms it is manifestly accepted by both proponents and opponents that literature regarding the dangers of drug use and associated health problems will able to be distributed more effectively to drug users. The safe injecting rooms provide the opportunity for literature to be distributed to drug users who may have otherwise slipped through the system so to speak. Conversely, it must also be said that the age old adage of “you can lead a horse to water but you can’t make him drink” is also relevant as far as the literature being applied by the users. Experience shows that unless drug users are prepared to firstly admit that they have a problem and secondly be prepared to overcome that problem then their addiction is unlikely to be conquered.
The follow on from the benefits of drug education within or because of safe injecting rooms through counselling and referrals may have the added effect of a reduction in illicit drug use and the ensuing reduction of property and violence crimes. The evaluation of motives for such crimes is difficult to gauge, however the pleas offered in courts in many cases focus on drug use as a mitigating factor for reasons that crimes are committed.
The Australian Christian Coalition amongst many others have cited their concern, of safe injecting rooms sending the wrong message to impressionable groups, such as children. (6th September, 1999) Their view in relation to this is that the establishment of such rooms will show a community acceptance and that children will therefore see drug use as acceptable. They state that the concept that “an increase in the tolerance of drugs will not increase the usage of currently illicit drugs” can not be tested because of the inability to develop a methodology to test the notion. Such an opinion however appears to be narrow-minded, mainly because of the fact that a methodology can not be established until variables both quantitative and qualitative can be tested in comparison to a current status. That being, the current effect on the community, including children and the message that drug use sends to them.
There are many common law rights and the responsibility of people regarding duty of care to individuals. The duty of care that workers have in relation to users who utilise safe injecting rooms are untested. A number of case laws exist that examine the issue of duty of care and any omission of such a duty not occurring. In Nydam v R Young CJ, McInerney and Crockett JJ stated that in relation to a charge of manslaughter by criminal negligence “it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of an act merited criminal punishment.” Although a particular case does not exist where people or individuals have voluntarily allowed the use of drugs and death has then occurred, a reading of the above view shows that individuals or groups may be criminally liable for resultant deaths. Several situations may occur where a charge of negligent manslaughter may succeed. These include situations where individuals may not call an ambulance due to negative attention that may be brought upon the safe injecting room, the failure to supply appropriate care because of insufficient knowledge to treat overdose victims’, despite the fact that they have accepted the duty of care by working at the safe injecting room, or other circumstances where individuals assist in drug use and possession as aiders and abettors, and a death occurs. It may be that the establishment of safe injecting rooms and any deaths that occur therein become the foundation or precedent for negligent manslaughter in such circumstances.
The Victoria Police has a mission statement that includes the duty to prevent and detect offences. With circumstances where police have entered into an agreement and policy formation not to have a significant presence near needle exchange service areas, police may in many instances be neglecting their responsibility to prevent and detect offences (MICALLEF, 1998, Safe Injection Facilities) . The Wood Royal Commission in New South Wales’ view in relation to the establishment of safe injecting rooms and the conundrum police face in enforcing drug laws, was that health and safety benefits that occur from safe injecting rooms outbalance policy considerations that countenance illegal behaviour, therefore “for these reasons the Commission favours the establishment of premises approved for this purpose and invites consideration of an amendment of the Drug Misuse and Trafficking Act to provide for the same”, the equivalent of the Victorian Drugs Poisons and Controlled Substances Act.
Subsequent to this, the issue arises where the DPP do not prosecute offenders charged by Victoria police and other agencies because of a direction by Health Ministers who are adopting the ‘harm minimisation’ approach. Mr Jason BYRNES, Secretary of the ACT Police Branch of the Australian federal Police Association stated on the 8th February 1999 that the intention of the Federal Health Minister to direct the DPP not to prosecute “is.…an abuse of the independent status of the office of DPP and its unfettered discretion to prosecute in the public interest. Furthermore, the mere existence of an injecting lace will be used by offenders as an excuse to escape prosecution, which may very well lead to police being unable to enforce drug laws” (Heroin Injecting Rooms and the Law, 1999).
The final aspect relevant to safe injecting rooms that needs to be discussed is the international commitments that Australia has to illicit drug use. In 1988 Australia participated in a comprehensive international drug convention which was the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Australia ratified this in 1993. The “convention prescribes that the production, trafficking and use of scheduled illicit drugs should be established as criminal offences under domestic law” (Turning the Tide Report, December 1997). It has been argued that the Federal Government is bound by the terms of the international agreement but Victoria is not due to the fact of the separation of State and federal powers under the Commonwealth Constitution. This however has not been examined in detail yet it can be argued that in such a circumstance that non-compliance by States “could invite the Commonwealth to override recalcitrant State legislation.” (Turning the Tide report, December 1997). The ultimate question then is, does the establishment of safe injecting room’s breach the international commitments which Australia has entered into? A legal minefield is thrown open and without closer examination an opinion as to whether this international convention has been breached can not be established.
Despite the endless legal and moralistic problems that have been raised in discussions about safe injecting rooms, the fact that various health benefits and ultimate benefits of saving lives exist. A safe pilot program for safe injecting rooms in Victoria should be adopted in order to ascertain qualitative and quantitative data to test the advantages and disadvantages that have been discussed.
REFERENCES
1. Bearup, G., Closures may trigger new AIDS epidemic, claims expert, Sydney Morning Herald, March 10, 1999.
- Comrie, N., Police Life, The Victoria Police Magazine, September, 1998, page 31. Publications Unit, Victoria Police.
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Micallef, E., Safe Injection Facilities, Should Victoria Have a SIF Pilot-Trial, Discussion paper 1998 – http://www.lindesmith.org/library/micallef2.html.
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Drugs and crime Prevention Committee, Turning the Tide, interim report 1997, Victorian Government Printer.
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Nydam v R [1977]VR430, at page 445
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http://www.pastornet.net.au/acc/action/shooting.htm – Australian Christian Coalition, September 6, 1999..
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http://www.pastornet.net.au/acc/action/police1.htm – Heroin Injecting Rooms and the Law, 1999.
- Wood, J. The Wood Royal Commission, New South Wales, 1999,
