Author Archives: Sonia Hickey

About Sonia Hickey
Sonia Hickey is a freelance writer and magazine journalist with an interest in social justice, and a member of the Sydney Drug Lawyers content team.

US President Expunges Federal Criminal Convictions for Cannabis Possession

In a move that signals major change in United States drug policy, President Joe Biden has ordered the expunction (deletion) of all past federal convictions for the possession of cannabis.

Pre-election pledge

The promise to pardon the thousands of Americans convicted of the offence and remove offences of, and relating, to the possession of cannabis is one the president appears to be adhering to.

He says he will now be calling on state governors in jurisdictions that have not already done so to legalise the plant and expunge convictions in a similar manner.

Backdoor criminalisation

He has also tasked Merrick Garland, who is federal attorney-general and minister for health and human services, to “expeditiously” review related laws to ensure they are not indirectly leading to the criminalisation of the possession or use of cannabis.

Perhaps the most obvious way this is occurring in Australian jurisdictions is by way of the offence of driving with an illicit substance present in the bloodstream, or ‘drug driving’, whereby a person can be charged and convicted for having minute quantities of THC in their bloodstreams – amounts that are insufficient to impair driving ability.

Separate category for marketing and trafficking

Mr Biden has further called for the plant to be removed from the category of marketing and trafficking laws that criminalise drugs such as heroin, methamphetamines, LSD and cocaine – and put in a separate category which has lower maximum penalties

Drug possession should be treated as a health issue, not a criminal offence

The moves bring the United States closer in line with other nations – such as Portugal, Norway and Denmark – that have gone a step further by legalising or at least decriminalising the possession of formerly illicit drugs for personal use.

Each of these nations has reaped social and economic benefits from their move away from criminalisation – with less drug overdoses, more people coming forward for assistance, lower rates of HIV from the use of shared syringes, less spent on enforcing drug laws and, to the surprise of many, rates of use not increasing.

State versus federal laws 

While there is no one currently serving time in the US for federal mairjuana possession, statistics suggest that there are at least 6,000 Amercians currently facing charges, and thousands more who have already been prosecuted. 

Of course, some US states have already legalised the adult use of marijuana for recreational purposes: including Alaska, Arizona, California, Colorado, New York, Nevada and Oregon amongst others, and it is emerging as a dominant  political issue ahead of the upcoming November elections. Candidates in States where marijuana possession and use is still a criminal offence are making the legalization of marijuana central to their election campaigns in a bid to win majority votes.  

Why the US federal law change is important 

Legal experts, advocates for legalisation and politicians leading the charge for change in the US say that amending the federal laws is important because even though many individual states have moved towards legalising marijuana for recreational and medicinal purposes, some users are still vulnerable to federal prosecution anyway, despite what jurisdiction they are in, because of marijuana’s placement on the Controlled Substances list within 1970 Controlled Substances Act. 

According to some statistics from the US, smoking marijuana is now more popular than smoking tobacco. In a Gallup Poll taken in August this year 16% of respondents admitted to smoking marijuana in the previous week, compared to just 11% who had admitted to smoking tobacco.   

Tobacco usage has been in decline in America for many years, but in the same Gallup Poll this year, nearly a third (30%) of adult respondents under the age of 35 said they smoke marijuana on a regular or semi-regular basis, as did 16 percent of those people surveyed aged  35-54 and 7% of respondents over the age of 55. 

The devastating impact of a criminal conviction 

In a speech announcing his moves towards the legalisation of cannabis, Mr Biden noted the unfairness of being criminally convicted for possessing the plant.

“It’s legal in many states, and criminal records for marijuana possession have led to needless barriers to employment, housing, and educational opportunities. And that’s before you address the racial disparities around who suffers the consequences. While white and Black and brown people use marijuana at similar rates, Black and brown people are arrested, prosecuted, and convicted at disproportionate rates … Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs,” the president stated. 

Time for us to follow suit

Many might consider it a bold move for the US – it’s certainly one that has grabbed international headlines this week, perhaps because it’s not the first time moves have been made at a federal level advocating marijuana law reform, without success. 

It is however, a move that offers renewed hope for drug decriminalisation advocates here in Australia, that our own politicians might follow America’s lead and finally stop debating and actually push forward with law reform, which has been recommended by various experts for many many years.

Pill Testing: Premier and Police Commissioner Have Their Heads in the Sand

The State Government is adamant New South Wales won’t be implementing two of the most significant recommendations made by the Deputy Coroner after her inquiry into drug-related deaths at music festivals.

Harriet Graeme’s draft final report, recommends a trial of pill testing as well as the abandonment of sniffer dogs, the reduction of strip searches, and the decriminalisation of drugs taken for personal use at music festivals, amongst 28 other points for consideration.

‘Sufficient evidence’ to support a pill testing trial

While conceding that supervised drug testing wasn’t a ‘magic solution’ Ms Graeme said she was in ‘no doubt whatsoever’ there is sufficient evidence to support a trial in New South Wales.

Now NSW Police Commissioner Mick Fuller has provided his response loud and clear, and surprise-surprise, he says the police service does not support pill testing in any form because it is ‘flawed and unreliable’ and sends a dangerous message of false confidence to young people that the drug they want to take is safe, because there is no such thing.’

Premier Gladys Berejiklian has also dismissed Harriet Graeme’s suggestion.

But so far, the New South Wales State Government’s tough zero tolerance stance, measured by arrests and festival bans, has proven time and again that it is not the most effective way to save lives either, because it usually results in young people ‘loading up’ before entering a festival or event, therefore increasing their risk of overdose.

In fact, during the inquest into five-festival related deaths, the Coroner’s Court heard research suggested that 10 per cent of people who encountered sniffer-dog operations engaged in the dangerous practice of swallowing all of their drugs at once.

The inquiry also looked at the use of drug detection dogs, which have been shown to be ineffective as much as two-thirds of the time, and yet they are usually the only determining factor behind police order a strip search, well as their use by police in determining strip searches, a highly invasive policing procedure that has also faced a barrage of criticism not least of all for its potentially damaging psychological effects but also because in a significant number of cases, it is carried out illegally.

Educating young people about drugs can backfire

The New South Wales’ Government’s other weapon in the war against drugs – education – has also proven to be a double-edged sword, with the Coronial inquest hearing that one student in 20 had tried MDMA by the time they’ve reached year 10.

The risk of providing drug education early is that people will be curious about trying it. On the other hand, leaving drug education later could mean it was ‘too late’ to warn young people of the dangers of drugs.

Pill testing can save lives

Pill testing has been trialled in Europe successfully for many years. In particular the Drug Information and Monitoring System operation in the Netherlands has proven itself to be a system that can assist with not only harm minimisation through drug testing, but also by collecting valuable data that can better inform festival planning and more targeted education. More recently, it’s trail in Canberra has also shown positive results.

It’s important to note that while the Coronial Inquest did highlight the fact that pill testing may save lives, it is not in itself, a complete solution. A range of factors including fixing the problem of ill-equipped first aid services at festivals, as well as intense heat and no access to drinking water, which contributes to dehydration also need to be addressed so that young people can enjoy summer music festivals safely.

But the parents of Diana Nguyen, Joshua Pham, Joshua Tam, Callum Brosnan, Nathan Tran and Alex Ross-King who died after taking the drug MDMA at music festivals in the summer of 2018/2019 and whose deaths were at the centre of the inquiry are never the less imploring the state government not to ignore the recommendations nor waste an opportunity to try pill testing.

Before these five MDMA-related deaths at music festivals in NSW last summer, there had been only 12 across Australia in the previous decade. But as well as those fatalities, there were 29 pre-hospital intubations at 25 music festivals in the state in 2018-2019, as well as 25 drug-related intensive care admissions, and at least an additional 23 drug-related hospital admissions.

ACT to Legalise Cannabis Possession

If history is anything to go by, often when one Australian State or Territory passes legislation on a particular issue, other jurisdictions tend to follow suit.

At least that’s what many Australians hope will happen in the wake of the ACT’s recent legalisation of personal cannabis possession.

What’s permitted under the new laws?

The laws, which come into effect on 31 January 2020, allow possession of up to 50 grams of dry cannabis per person. They also provide that:

  • Any adult in the ACT can legally grow two cannabis plants per person, with a maximum of four per household.
  • An adult can be in possession of up to 150 grams of wet cannabis.
  • Cannabis cannot be consumed in public, or anywhere near children, and will also have to be stored somewhere inaccessible to children.
  • Plants need to be grown where they are not seen by the public or accessible to children.

State/Territory laws versus Commonwealth laws

But the local laws are in conflict of current Commonwealth law, which does not allow personal cannabis use at all. So what does this mean?

Section 109 of the Constitution says that when a federal law is inconsistent with a state or/ territory law, the Commonwealth law will prevail to the extent of the inconsistency/

This means there are still legal risks, because cannabis remains a prohibited substance under Commonwealth law, and as such, police officers in the ACT still have the power to arrest and charge anyone under those laws should they choose to do so.

So, do the local laws have any power?

Well yes and no. This is a complex area, while there is such a significant disparity with the Commonwealth Law. However, the ACT laws attempt to provide a clear and specific legal defence for an adult who possesses small amounts of cannabis in the ACT, but is prosecuted under Commonwealth law and under this federal law, the punishment of possession of marijuana for personal use is a jail term, a maximum of two years in prison.

However, while this is indeed the ‘letter of the law’, for the most part, federal drug enforcement tends to be used to deal with offences that cross borders. Simple possession and small cultivation offences tend to be prosecuted under state and territory law.

Policing the new laws

ACT Police have stated officers have been informed of the new laws, and intend to ‘respect the new territory legislation as best they can,’ focusing less on consumers of cannabis, and more on organised crime pushing large amounts of marijuana and other drugs.

There are also many wondering why the new laws were necessary given that prior to passing this new legislation, the ACT was fairly lenient on anyone caught in possession of 50 grams of marijuana anyway. The ACT was one of the few jurisdictions in Australia which did not make this a criminal offence, which has led some to believe that this legislation is intended to pave the way for cannabis to eventually become commercialised in Canada.

However, the politicians say no. This would require an overhaul of Commonwealth drug laws to make this in any way possible in the ACT.

The law in New South Wales?

While cannabis advocates such as the HEMP Party, based in New South Wales, are hoping that laws around the country will change in line with the new legislation in the ACT, there is no sign of that yet.

In New South Wales, the possession and cultivation of cannabis is a criminal offence, except for medicinal purposes in certain circumstances. Drug possession carries a maximum penalty of two years in prison and / or a $2,200 fine.

However, courts have the discretion not to record a criminal conviction against a person even if he or she pleads guilty to drug possession, or is found guilty. This can be done under a section 10(1)(a) dismissal or a conditional release order without a conviction.

If you are going to court for drug possession, and you wish to plead guilty, there are steps you can take to maximise your chances of avoiding a criminal record. These can be explained to you by an experienced criminal defence lawyer, who can assist you to obtain required materials and present your case in such a way as to give you the best possible chance to walk out of court conviction free.

Bumper Summer for Music Festivals, but Still No Pill-Testing in NSW

The summer season of music festivals about to start across NSW, and the state continues to attract big name acts and high profile events like the Rolling Loud Hip Hop Festival, which is expected to bring thousands of fans to Sydney early next year.

In the meantime, despite acknowledging that music festivals are a strong part of Australian culture, and benefitting from their money-making potential, the State Government continues to beef up police numbers and resources including sniffer dogs to stop drug use. And there is still no sign of pill testing.

Instead, two months ago, the NSW State Government announced a range of new initiatives for combatting drug use at music festivals including on-the-spot fines of up to $500 for drug possession and tougher penalties for dealers who supply drugs to people who die.

At this point the Government says it us working through other issues with the legislation such as the penalties for someone who gives drugs to a friend.

‘Throwing the book’ at dealers won’t help

Many pill-testing advocates are angry that the plan simply ‘throws the book’ at dealers and does nothing address the idea of reducing risk and minimising harm for those people who will take drugs.

This is because when the Government had an opportunity to listen to pill-testing experts it didn’t do so.

After the deaths of two people at Defqon1late last year, the New South Wales Government went into ‘damage control’ and assembled a panel of experts briefed with the task of making music festivals ‘safer’. At the time, many hoped that it heralded a change in mood by the state politicians, but Premier Gladys Berejiklian swiftly made it clear that the panel would not be considering the merits of pill testing because the Government didn’t support it.

In recent weeks NSW Police Commissioner Mick Fuller has further inflamed the situation by saying that the belief that pill-testing was going to save lives is a ‘myth’.

But in fact, results from Australia’s first sanctioned pill-testing trial at the Groovin the Moo Festival in Canberra earlier this year proved that not only could free pill testing services actually be provided without encouraging more people to take illicit substances, but it prompted some to throw their drugs away.

Of the 128 festivalgoers who had their drugs tested on the spot by laboratory-grade equipment, five people tossed theirs into the amnesty bins provided after receiving the test results provided by the medical staff onsite.

Pill-testing can save lives

Drugs belonging to two revellers were found to contain N-Ethylpentylone, an often lethal stimulant, responsible for mass overdoses in Europe potentially saving these two individuals lives.

Pill testing has been available in several European countries including the Netherlands, Switzerland, Austria, Belgium, Germany, Spain and France for some time, and was more recently introduced in the UK. And the results show that not only does pill-testing have the ability to save lives, it has positive effect that goes beyond saving lives.

Outcomes of pill testing over seas

The experience in some parts of Europe has been that over time, pill-testing has actually changed the black market in positive ways – potentially lethal ingredients which were the subject of warning campaigns were seen to leave the market.

Specific research from Austria shows that 50% of people who had their drugs tested said the results affected their consumption choices. Two-thirds said they wouldn’t consume the drug and would warn friends in cases where there were negative results.

In the UK, two-thirds of users consulted by not-for-profit testing service The Loop said they would not take drugs found to contain harmful substances. More than half said test results had affected their consumption choices and many said they intended to dispose of their drugs or take less of them.

Another less measurable benefit is that pill-testing booths provide an opportunity to reach an otherwise unreachable, but high-risk group of recreational drug users and provide both communication and education about their lifestyle choices as well as information about drug support services. According to testers and healthcare professionals, pill testing not only gave users a chance to know what they’re really taking but also to engage with health professionals about their drug use outside of a very formal medical setting.

In Europe, pill testing has also facilitated the capturing of long-term data about the substances in drugs as well as drug use.

Meanwhile in NSW, the Government is still doing what it has always done in response to this issue – throw more resources and tougher problems – an approach that has so far, had little effect on solving the problem.

When will the Government listen?

Of course, harm minimisation programmes like pill-testing are not a panacea by any means. They are highly controversial, mostly because people think that they will encourage more drug takers or remove the stigma’ that’s associated with taking illegal substances, and that by agreeing to pill testing is turning a ‘blind eye’ to those who break the law.

But in NSW, the traditional ‘zero tolerance’ approach is not working, and many believe that we will continue to have, more tragic and unnecessary deaths from drug taking at music festivals unless we try a new approach.

Experts are frustrated that despite all the proven benefits of pill-testing, the NSW Government flatly refuses to even trial it. And the community is getting weary too – many young Australians

are highly supportive of pill testing; a finding consistent with young people’s overall views about drugs: they want better information in order to make informed choices.

Blue ‘Superman’ Pill Warning

New South Wales police have issued warnings regarding a batch of blue pills branded with a Superman ‘S’, which they believe are responsible for five recent drug overdoses in New South Wales.

Eleven people have been taken to hospital in Newcastle, with symptoms believed to be related to taking the blue pill. While lab tests have not yet determined the composition of the tablets, police and health professionals are urging people not to ingest them.

Pill testing

The overdoses sparked renewed calls for pill testing as summer approaches – the season for schoolies, Christmas parties and music festivals.

Around Australia, police, paramedics, and hospital emergency department staff are gearing up for what they call the ‘drug season’.

2015 was arguably Australia’s worst ever year for overdoses at music festivals, resulting in governments putting festivals on ‘notice’ of closure if the problem persists.

And while most festival organisers do what they can, simply banning drugs does little to combat the problem, resulting in people embarking on the dangerous practices of ‘preloading’ before an event or taking all their drugs at once upon seeing police and sniffer dogs at the event.

The presence of deadly ‘fillers’ in pills is also a significant problem, and health professions have been pointing out for years that pill testing is a proven way of informing festival-goers about the presence of such additives in their tablets, thereby allowing them to make decisions about whether to take their drugs and, if so, how much.

Fed up with what they believe is a ‘head-in-the-sand’ approach, advocates for pill testing took matters into their own hands around this time last year and made kits available at festivals across Sydney in what they say was a ‘protest manouvre’.

Spilt Milk festival trials pill-testing

The ACT has bucked the political trend, agreeing to allow a pill testing service be trialled at the Spilt Milk festival this year, on November 25.

It’s a positive step forward for pill-testing advocates, who say that in Europe, where pill testing has long been available, it has proven to be a very successful way for people to find out what they’re taking and make decisions beforehand. Australian harm minimisation advocate Dr David Caldicott, and a tireless campaigner for pill testing, says it reduces the prospect of users consuming drugs with harmful additives by 60 per cent.

The Spilt Milk festival trial comes at an interesting time for Australia, with a report released by heavy-weight think Tank group Australia 21 recommending a national move towards drug decriminalisation, with greater recognition of drug use as a health issue. The report also recommended more investment in harm-minimisation programmes, such as pill testing.

Trial results could provide a basis for expansion

The Spilt Milk festival trial will, at long last, provide local data which will enable decision-making with regard to the effectiveness of pill-testing and provide a much-needed direction for the potentially life-saving initiative.

After Spilt Milk has taken place, the organisation running the trial, Safety Testing Advisory Service at Festivals and Events (STA-SAFE) will share results, which it hopes will provide impetus for the programme to be expanded, not just across the ACT, but other states and territories as well.

War Against Drugs Fails to Stem the Ice Epidemic

New South Wales police have called a recent drug bust in the north of the state a small victory in the ongoing war against the drug ‘ice’.

Last week, police, arrested a 42-year old man and charged him with six offences including: one count of supplying a prohibited drug greater than a commercial quantity; two counts of supplying a prohibited drug and three counts of drug supply greater than indictable quantity.

The man’s arrest was the culmination of a nine-month investigation called Strike Force Cheddar, which targets the commercial supply of ice throughout the Richmond area.

Despite the bust, police acknowledge they are fighting an uphill battle against the use of ice, which has tripled over the past five years.

A new study published in the Medical Journal of Australia suggests there are 268,000 regular and dependent methamphetamine users in Australia, compared to about 90,000 users five years ago.

And more young people are turning to the drug: users in the 15 to 24 age group has more than doubled – from about 21,000 five years ago to 59,000 users now. It is in this group where the greatest hope of intervention lies, with prevention and diversion strategies working best on younger users.

In light of the figures, experts are warning that Australia could be headed for a crisis similar to the one posed by heroin in the 1990s, which killed thousands of young people and caused long term addiction problems for many more.

Country towns.

Young people in rural areas are at the highest risk of exposure to ice, with use in country towns double that of metropolitan areas.

Many rural areas have high rates of unemployment, less opportunities for education and training, higher levels of depression and other mental health issues – all of which are risk factors to drug use.

To support the habit, users often turn to dealing drugs themselves.

About ice

Crystal methamphetamine, or ice, is a stimulant drug which speeds up the messages travelling between the brain and the body. It is stronger, more addictive and is said to have more harmful side effects than powdered forms of methamphetamine, such as speed. 1

Ice usually comes as small, chunky, clear crystals that look like ice. It can also come as white or brownish crystal-like powder with a strong smell and bitter taste.1It is also known as shabu, crystal, glass, shard, and P.2

The drug is generally smoked or injected, but it can also be swallowed or snorted. The effects last for around 6 hours, although ‘coming down’ can take several days. The drug has been linked to extreme agitation, and high doses or frequent use can cause ‘ice psychosis’ – paranoid delusions, hallucinations and bizarre, aggressive and violent behaviour.

Experts believe that simply criminalising and punishing drug users does little to deter drug use. Most argue drug use should be seen as a health issue rather than a criminal law problem, and that dealing with addiction requires a multi-faceted approach across a range of areas: parents and families, educators, health practitioners, social workers, and the wider community.