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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.

Drug Arrests and Seizures Do Not Deter Drug Suppliers or Reduce Consumption

The Australian Criminal Intelligence Commission released the Illicit Drug Data report 2017-18 last week. In its sixteenth year, the report provides an overview of the domestic black market, and the efforts of law enforcement to combat drug trafficking transnational crime networks.

The report findings reveal that Australians continue to have a taste for amphetamine-type stimulants, which account for most seizures. Although, locals are also moving on to cocaine, with a record number of arrests carried out for that substance over the 12 month period.

During the financial year 2017-18, there was a record amount of 30.6 tonnes of illicit substances taken from 112,827 drug seizures. And the various police forces around the country made 148,363 drug-related arrests throughout the year.

This means that, on average, authorities made a drug seizure every five minutes, one kilogram of illicit drugs was snatched every seventeen and a half minutes, and someone was arrested in drug-related circumstances every four minutes.

But, if you take a step back from the record amounts, the skyrocketing arrests and the ridiculously high prices, what’s revealed is that despite global prohibition, illicit substances are flooding across Australian borders, consumption is on the rise, and law enforcement efforts are no deterrent.

The opposite effect

Key outcomes of the century-long system of transnational drug controls have been the growth of powerful criminal networks, an abundance of available illicit drugs, an ever-changing variety of substances, increased drug consumption, and the criminalisation of vast numbers of the population.

Of course, these outcomes are not what one would have expected when representatives from multiple nations began meeting in the early years of the 20th century to draft treaties that were, on the face of it, designed to control the consumption of drugs for health reasons.

And since the launch of the war on drugs in the early 1970s, these outcomes have only been exacerbated. The stepping up of law enforcement efforts to curb illegal drug production and trafficking has increased the risks involved, which in turn, has heightened the profits.

Illegality increases profitability

The NSW Crime Commission Annual Report 2015-16 outlines that “the illicit drug trade continues to be the main stream of income for organised crime groups operating in Australia”. And it predicted that due to the steep price of drugs in this country, trafficking from overseas was likely to increase.

The report further puts forth that it’s the international drug cartels that are calling the shots in Australia. The authors posit that organised crime decides what sort of volumes are going to be smuggled into the country, and local consumers take what they make available.

“Commendable law enforcement efforts around the country have resulted in larger seizures and more arrests, but they have had little, if any, effect on the quantities of prohibited drugs available for consumption in Australia,” the report authors admit.

Australian drug historian Dr John Jiggens explained to Sydney Criminal Lawyers back in May that “drug law enforcement acts as a multiplier for the drug market”. The doctor asserts that every dollar spent on drug law enforcement works out to ten dollars in the pockets of drug suppliers.

Dr Jiggens emphasised that the “war on meth” being waged by authorities over the last decade has led to a surge in its availability and profitability. The risks involved hike the price, which then leads international players to focus on the Australian market, because it’s where they get the best profits.

Arrests are no answer

The lack of any real impact being made via drug seizures is nowhere more understood than at the frontline of enforcement. Police officers are increasingly savvy to the fact that with every drug bust they make, more drugs appear from elsewhere to fill the momentary gap in the market.

The 2017 Australia21 report on illegal substances makes thirteen key recommendations regarding drug decriminalisation. And significantly, four of the participants making up the thinktank were former police commissioners and assistant commissioners.

Ex-Australian Federal Police Commissioner Mick Palmer was the vice president of Australia21 at the time of the report release. And today, the former top cop is one of the most vocal advocates for decriminalising the personal possession and use of illegal drugs in this country.

Mr Palmer is well-known for acknowledging that the drug issue is not something that the nation can arrest its way out of. And he’s clear that the majority of harms arising from illicit substances are due to their prohibition.

Cannabis: a case in point

The ACT Legislative Assembly is set to vote on a bill next month that if successful will mean that the personal possession of up to 50 grams of cannabis and its use will be legalised in the capital territory. And Labor MLA Michael Pettersson who introduced the legislation is fairly confident it will pass.

Recreational cannabis is now legal in eleven US states, and the entire nations of Canada and Uruguay. For medicinal purposes, it is these days legal in this country. And underlying these developments is the understanding that the adult use of this drug is relatively harmless.

However, the recent drug report shows that there were 72,381 cannabis arrests across Australia in 2017-18. And of these, 66,296 – or 92 percent – were consumer arrests. And when considering all drug arrests during that year, it turns out 44 percent were arrests of cannabis consumers.

So, this would point to a situation where the majority of the harms related to cannabis are most likely attributable to its illegality, as while its consumption is unlikely to cause any major long-term harm to an adult, being arrested for its possession is.

Legalise it all

Five young Australians died at music festivals in this state last summer. And despite rising calls to implement pill testing at these events, the Berejiklian government is sticking to its reactionary “just say no” to drugs approach.

As Australian Drug Law Reform Foundation president Dr Alex Wodak has pointed out, MDMA – the drug of choice for festivalgoers – is one of the “least risky drugs”. So, if this substance was legally produced – like alcohol – it’s likely deaths caused by it would be greatly reduced if not ceased.

And while the use of other illicit drugs might be riskier, the argument for legalising them is their production could be quality controlled, availability could be governed, treatment for problematic use could be broadened, and the harms associated with the criminal justice system removed.

Indeed, if Australia adopted a policy of legalising and regulating all illicit substances, the power that the transnational criminal networks wield would fade away, the floods of contraband coming over the borders would dry up, and the police would be free to focus on crimes with real victims.

NSW Government Risks More Lives by Rejecting Harm Reduction

By Sonia Hickey and Ugur Nedim

One of our state’s most popular music festivals, Splendour in the Grass has commenced in Byron Bay. The annual festival boasts more than 100 music acts, and attracts around 42,000 people each year.

And yes, along with the revellers, the festival also attracts a heavy police presence and drug detection drugs.

It’s no surprise that police have issued their standard pre-festival warning, that ‘anyone caught with illegal substances will be dealt with accordingly.’

It’s the same old rhetoric, time and again. The enforcement of which is costing young lives.

Young people and drugs

Currently, there are two State Government-led inquiries into the relationship young people have with illegal drugs in New South Wales.

The first, set up in November last year, is specifically examining drug use.

The second is the coronial inquest into the deaths of six young people, Diana Nguyen, Joshua Pham, Joshua Tam, Callum Brosnan, Nathan Tran and Alex Ross-King, all of whom suffered drug-related deaths at music festivals between December 2017 and January 2019.

Harrowing deaths

Tragic revelations are emerging from the coronial inquest – of medical staff inadequately trained and inexperienced in treating drug overdoses, of limited medical resources on site, and ‘disorganised’ emergency care responses, all of which have, in some way, contributed to the deaths of young people whose final hours have been depicted as painful and distressing.

The coronial inquest has heard evidence that over-policing at the FOMO Festival led to one young festival goer taking almost three MDMA pills in panic all at once. He later died as a result. Another’s death was preceded by violent police behaviour, with a witness testifying that an officer punched him in the face as he began to exhibit symptoms of a seizure.

Others have complained about the way police conduct strip searches, intimidating and humiliating patrons – treating them as if they are guilty until proven otherwise.

Pill-testing has been a strong theme. And in recent days, Deputy State Coroner Harriet Grahame has expressed interest in attending Splendour in the Grass herself, to see first-hand a pill testing demonstration by Dr David Caldicott, who has long been an outspoken advocate for the harm minimisation practise.

NSW Government insists on ‘zero-tolerance’

Despite the deaths and a wealth of evidence from overseas that pill-testing saves lives, as well as strong backing for the practise by a range of experts including the Royal Australasian College of Physicians, the Australian Medical Association and former Australian federal police commissioner, the NSW government is clinging to the status quo: The ‘zero- tolerance’ policy which includes deploying hundreds of police officers, sniffer dogs, strip searches and the long arm of the law, and the rejection of harm minimisation.

Our Premier Gladys Berejiklian’s direction to young people is ‘don’t take illegal drugs’.

This is not only completely out of touch with reality, it ignores vital facts that we already know.

Currently, the Australian Capital Territory is the only jurisdiction in Australia which has conducted pill testing trials, and the preliminary findings of these trials overwhelmingly supported evidence from overseas where pill testing is commonplace, and that is, it provides people with information to make a choice, and therefore does save lives.

Australians have one of the highest consumption rates of MDMA (“ecstasy”) in the world. And, sadly, because MDMA is an unregulated drug, Australian ecstasy has also been found to contain the highest amount of unknown and potentially deadly substances, because, on the black market producers and suppliers to fill their tablets with whatever they want.

In a study of ecstasy pills from several countries including the Netherlands, Australia and Canada, Australian tablets were found to contain the highest amount of “unknown ingredients” as well as the highest amount of potentially deadly substances including PMA/PMMA, a highly toxic compound linked to deaths both in Australia and overseas.

These considerations alone, should be case enough for the introduction of pill testing.

It has been proven overseas that the practice does not lead to an increase in use, but actually offers a valuable opportunity for professionals to engage with, and educate drug users. It offers too, a chance for young people who may be feeling ‘peer pressure’ to find a ‘respectable way out’ and ditch the drugs, without fear of losing face with their friends.

For many it is simply maddening that the NSW Government continues to defy the very many positives of pill-testing and the mounting ground-swell of support for it, not just in NSW, but right across Australia, and not just anxious parents or curious young people, but those who believe that there is enough evidence that it will save lives.

Most of us have had enough of playing Russian Roulette with young people’s lives. And, yes, while these young people should each be responsible for the decisions they make, isn’t that exactly what pill testing is about? Ensuring they have the information they need to make an informed choice?

Perhaps there is however, some hope on the horizon. The Government inquiry mentioned earlier which is tasked with looking at drug use across the state, was originally undertaking specific research into the use of crystal methamphetamine, otherwise known as ICE, but earlier this year it’s brief was expanded to include other illicit drugs such as MDMA, which means that it will also look into the benefits of pill testing.

When final recommendations are made from both the coronial inquest and the drug-use inquiry are handed down, it can only be hoped that the Government retains an open mind on the issue of pill testing. Not to do so would be a complete waste of time, resources and taxpayer funds.

Pill Testing Saves Lives, Heavy Policing Takes Them

Alex Ross-King was only 19, when she died from a drug overdose attending January’s FOMO festival in Parramatta. Last week, at the NSW coronial inquiry into six drug-related deaths at festivals, it was heard that Alex had taken several MDMA capsules prior to the event so as to avoid police detection.

Event attendees taking all their drugs before an event to avoid arrest is referred to as “preloading”. Harm reduction experts have been warning for years that heavy policing at festivals is causing punters to partake in risky drug taking behaviours, like this, to prevent being arrested.

If Ms Ross-King wasn’t expecting to be confronted with a show of brute force on arrival, she likely wouldn’t have taken numerous pills at once. Besides there being no point, she’d be afraid of the consequences. But, in this case, the fear of police was greater than the fear of a drug overdose.

Since the early 90s, people in the Netherlands have been able to access pill testing services at festivals. This means a medical professional can warn them if their drugs are too strong or toxic. They don’t have to fear arrest and they can make an informed decision about taking the drugs.

And as NSW premier Gladys Berejiklian again pushes her “just say no” to drugs stance, rather than conceding a proven harm reduction intervention just might save lives, it feels to many like we’re on some sickening roundabout, with the only progress made being the rising number of deaths.

A head-in-the-sand approach

“This is not the first tragic death in NSW because a young person has preloaded, due to their fear of police drug dog operations,” said NSW Greens MLC David Shoebridge. “Unless we change the law, I fear it won’t be the last.”

James Munro died as a result of taking all his drugs at once on spotting police with dogs at the 2013 Defqon.1 festival. To avoid getting arrested, the 23-year-old downed several pills at once and half an hour after gaining entry into the event, he fell into a coma, and never regained consciousness.

“We have a government that’s hellbent on a zero tolerance 1950s approach to drug law enforcement: a theory that abstinence will somehow keep young people safe,” Mr Shoebridge continued. “That approach has been proven tragically wrong.”

The NSW Greens justice spokesperson also stressed that there’s always a number of young people who experiment with drugs. And it’s about time authorities admitted the drug war has failed and look towards alternative measures like pill testing, or further, legalising and regulating MDMA.

3,4-Methyl​enedioxy​methamphetamine (MDMA)

Veteran drug law reformist Dr Alex Wodak explained that ecstasy or MDMA is the main drug youths are taking at music events. An oft-cited 2010 Lancet article found MDMA to be “one of the least risky” of 20 drugs considered, although like all others, it’s “toxicity is greater with higher doses”.

“Doses on the black market have been creeping up and are now not infrequently in a concerning range,” the Australian Drug Law Reform Foundation president added. “Also, some samples include dangerous contaminants resulting from faulty manufacturing practices.”

The physician further told Sydney Criminal Lawyers that in relation to legalising the drug “the lowest risk form of ecstasy would have to be regulated with careful supervision of the manufacturing process and production of a known and safe dose”.

But, the reality is that MDMA remains illegal, and so does pill testing. And this means that the hundreds of thousands of Australians who take ecstasy annually are consuming a drug that could be relatively benign, but at present, can be rather like playing a game of Russian roulette if taken.

Intimidation, fear and anxiety

Tasked with investigating the drug-related deaths of six festivalgoers, NSW deputy state coroner Harriet Grahame decided to take herself to a music festival in mid-June to see what all the saturation policing fuss was about.

And the coroner described what she found as “full on”. The “lines and lines of police and dogs” she was confronted with made her “feel nervous”. Ms Grahame was surprised by “how intense it was”, as viewing it gave her a “strange sensation”, even though she had “nothing to fear”.

Mr Shoebridge related that he’s been at the entrance to numerous festivals in his capacity as an MP, who’s had “long and deep engagement with the NSW police”. And while he’s usually accompanied by dozens of Sniff Off campaign volunteers at the time, he still feels intimidated.

“The fact that someone in a position of authority like a state coroner feels intimidated should make the government reflect on how intimidating it is for an ordinary young person,” the Greens MLC emphasised.

A question of priorities

In response to a question regarding the use of brute force by NSW authorities as a way of preventing drug deaths at festivals, emergency physician Dr David Caldicott said, “I’m not aware of any public health intervention that required brute force that was in the slightest way successful.”

“What we are seeing in NSW is some sort of macabre political theatre,” the long-time pill testing advocate continued, “there is no evidence to support it, and that for which there is evidence is being ignored.”

As part of the Pill Testing Australia crew, Dr Caldicott was the attending doctor on site at both the first and second government-sanctioned Australian pill testing trials that were held at Canberra’s Groovin the Moo festival in 2018 and last April.

In permitting the trials, the enlightened ACT government has been complicit in having possibly saved the lives of around nine young Australians, whose drug samples were found to contain potentially lethal substances, and therefore, were binned rather than taken.

In NSW, five young people died as a result of untested drugs last summer. The situation in this state reminded Dr Caldicott of a quote from a book he’d picked up earlier this year in the Netherlands: a country, he said, “overtly makes drugs a health issue and is ingenious in its approaches”.

“You cannot control an activity by merely shouting out that it is forbidden,” wrote Jock Young in 1971’s The Drugtakers: The Social Meaning of Drug Use. “You must base your measures on facts, and these facts must come from sources that are valued by the people you are trying to influence.”

Leading others into a ditch

However, Ms Berejiklian doesn’t favour the same literature as Dr Caldicott. Instead, she prefers to bang on about how people should avoid taking drugs, while she quotes “facts” – which are sourced from who knows where – about there being a lack of evidence to show that pill testing works.

Dr Wodak said that the leader of the NSW Liberals “claims to be unimpressed by the evidence”, however when she established an expert panel last year to investigate safety at festivals following two drug-related deaths, she specifically told the panel not to consider pill testing.

The doctor set out that while critics argue pill testing hasn’t been evaluated by randomised controlled trials, this is because it’s an environmental intervention, which rules that out. But, it’s still open to peruse the on-the-ground evidence relating to its successful use in other jurisdictions.

“It is hard not to be impressed by the breadth and depth of expert opinion overwhelmingly supporting pill testing in Australia,” Dr Wodak added. “This includes a wide range of medical opinion, as well as academics, researchers and clinicians working in the alcohol and drug field.”

Blood on their hands

The premier dodged questions from reporters last Sunday regarding whether saturation policing at festivals is leading youths to preload and subsequently die. All she had for the NSW constituency was her usual: “don’t take illegal substances, they’re illegal for a reason.”

It’s an old harm reduction adage that new strategies to combat drug war casualties always face harsh resistance. This seems to be especially so in NSW, which was once a pioneer in establishing needle exchanges and a safe injecting room, both of which Dr Wodak brought across the line.

“If this premier doesn’t support pill testing, then the next one will, or the one after the next one,” Dr Wodak concluded. “Deaths will continue, unfortunately, and each premier will be pilloried for every death from now on, until pill testing is approved and implemented.”

It’s High Time to Decriminalise Drugs

Head of the NSW Special Commission of Inquiry into the Drug Ice Professor Dan Howard SC has requested a six month extension prior to the tabling of the final report, as it needs to properly consider “a key issue” that’s emerged, which is the decriminalisation of ice and other drugs.

The professor made the request to NSW premier Gladys Berejiklian in a letter dated 21 May. He noted that removing criminal sanctions around the personal possession and use of illicit drugs is not only a priority concern in NSW, but it’s also being agitated for in “many jurisdictions internationally”.

The inquiry into crystal meth was established by Ms Berejiklian last November. It’s significant that it wants more time to properly evaluate decriminalisation, when you consider the long list of regressive measures taken by the Coalition in relation to illicit drug use at the end of last year.

And there’s support for the decriminalisation of ice and other drugs coming from prominent sectors in the community. The NSW Bar Association’s submission calls for the removal of criminal sanctions, and both the NSW and ACT synods of the Uniting Church are on the same page.

On everybody’s lips

“Given the reluctance of the Berejiklian government to objectively consider the overwhelming evidence on how to reduce the harm from drugs,” said NSW Greens MLC Cate Faehrmann, “it’s extremely encouraging that the commission is dedicating enough time to look into this issue.”

Not only has the premier blocked her ears when it comes to the push for drug decriminalisation, but she also refused to consider pill testing at festivals while the death toll was rising last summer. And by the end of the festival season, a total of five young Australians had unnecessarily lost their lives.

Faehrmann outlined that the inquiry has heard compelling evidence from numerous experts. This includes the Public Defenders Office, which noted in its submission that former law enforcement officials have stated, “Australia cannot arrest its way out of the methamphetamine problem”.

“A decriminalised model would ensure people are able to seek help when they need it by diverting resources away from the criminal system and towards the health system,” Ms Faehrmann continued, adding that police would then be able to “tackle serious crime like domestic violence”.

A step towards regulation  

“Decriminalisation plus improved and readily available health and social support would significantly reduce drug-related deaths, disease and crime,” said veteran drug law reformist Dr Alex Wodak. “It would benefit people who use drugs, their families and the general community.”

The Australian Drug Law Reform Foundation president stressed that politicians also need to look at why a highly-potent drug like ice has caught on in Australia, whereas in other countries, such as the UK, it never has. And there are two chief reasons for this, according to the doctor.

Firstly, the isolation of the country, the huge law enforcement effort geared towards drugs and the risky nature of the business make it “very lucrative”. And Dr Wodak explained that as getting caught is not a certainty and the justice system is slow-moving, these act as little deterrent.

The second reason ice has taken off is as drug dealers and traffickers have to avoid detection, it leaves the smuggling of “more powerful, more concentrated and more dangerous drugs” an easier option. So, where less potent powdered speed was once the amphetamine of choice, now it’s ice.

“Decriminalisation of drugs is certainly needed,” Dr Wodak remarked. But, he added that it’s no cure-all. “Just as decriminalisation is better than criminalisation of drugs, regulating as much of the drug market as possible is where we need to end up.”

The Portuguese model

“Portugal’s successful 2001 reforms emphasised that removing sanctions for drug personal possession and use and the expansion and improvement of treatment,” Dr Wodak told Sydney Criminal Lawyers. And he underscored that decriminalisation and more treatment are both needed.

The Portuguese government decriminalised the personal use and possession of all illicit substances at a time when their use was highly problematic. And eighteen years on, the use of illegal drugs hasn’t exploded, but drug-related deaths and HIV infections have plummeted.

Today, individuals in Portugal found with an amount of an illicit drug in their possession deemed personal are sent before a dissuasion panel comprised of a doctor, a lawyer and a social worker. The panel members can recommend prescribed drug treatment, a minor fine or no punishment at all.

Ms Faehrmann recently returned from a fact-finding trip to Portugal. And she reports that the system is “extremely effective because it recognises that only about 10 percent of people who use drugs will ever become addicted”.

The NSW Greens drug and harm minimisation spokesperson added that the vast majority of people who go before the panels are “able to get on with their lives with no criminal record or any other distressing or degrading experience”. And the courts and law enforcement can focus elsewhere.

Time for pollies to listen

“The tide appears to have definitely turned when it comes to public opinion concerning the criminalisation of some drugs,” Ms Faehrmann continued. “I believe it’s inevitable that all drugs will be decriminalised in NSW.”

However, she put forth that it took years following public calls around assisted dying and abortion for politicians to bring about law reforms, which is a point that Dr Wodak echoed regarding the long gap between the initial decriminalisation of homosexuality and the coming of marriage equality.

“The criminalisation of homosexuality meant the heterosexual majority punishing people with a minority sexual preference involving consenting adults in private,” the doctor outlined. “The criminalisation of drugs involves the majority punishing people with a minority drug preference.”

And the drug law reformist added that over recent years the number of “retired and even some serving police commissioners” that have been advising the public that it’s impossible for the nation to arrest or imprison its way out of its current drug problems has been rising.

“This is surely a message in code for our political leaders to begin to redefine drugs as primarily a health problem and start funding drug treatment properly,” Dr Wodak concluded. “Now the Uniting Church in Australia is repeating this message.”

Cannabis and Driving: The Unfairness of NSW Drug Driving Laws

On 6 June, the ACT Legislative Assembly Standing Committee on Health tabled its report on Labor backbencher Michael Pettersson’s private member’s bill to legalise the personal possession and use of cannabis in the capital territory.

And the committee outlined that it overwhelmingly supports the legislation, subject to a number of recommendations, the ninth of which being that the “ACT government collaborates with ACT Policing to adopt a cannabis drug driving test that determines impairment”.

The ACT has a similar method of roadside drug testing to the highly derided NSW regime. In this state, NSW police test drivers for the mere presence of a select four drugs, one of which is tetrahydrocannabinol (THC): the psychoactive component of the cannabis plant.

Roadside testing does little for traffic safety, as officers have no way of gauging whether a driver is actually intoxicated. But, it does act as a backdoor method of penalising people for drug use. And as THC remains in the body for a long time, penalties can relate to consumption weeks prior.

But, over in the States, where cannabis use is increasingly the norm, authorities aren’t concerned with penalising people over what’s an accessible legal medicine in 33 states, while in 10 states and the District of Columbia, it’s a lawful recreational drug that a quarter of the population can use.

Instead, the US government and policing agencies are now focusing on how THC affects an individual’s driving capacity, and whether these effects make drivers more prone to causing traffic accidents.

Two very different drugs

“That marijuana usage increases a driver’s risk of crashing is not clearly established,” wrote David Randall Peterman, a US analyst in transportation policy. Some studies, he found, estimate “a small increase” in the risk of crashing, while others “estimate little or no increase in the likelihood”.

Mr Peterman detailed his findings in the Congressional Research Service report Marijuana Use and Highway Safety, which was tabled in US Congress on 14 May this year. The Congress-commissioned report provides a summary of relevant research into driving after cannabis use.

The analyst points out that as the legal use of cannabis grows, so too do concerns over its impact on road safety in a similar way to alcohol. Although, he determines that the differences in the effects of the two drugs, may challenge the assumption of simply treating cannabis and drink driving the same.

While alcohol is a depressant absorbed into the blood and metabolised quickly, with almost no traces within 24 hours, THC is a stimulant that’s metabolised rapidly as well, however it’s stored in the fat cells, so traces can still be present several weeks after consumption.

Difficult to pin down

As of last month, 18 US states have enacted laws that test for specified levels of THC in a driver’s body. If these are exceeded it constitutes driver impairment and is therefore unlawful. This is similar in the way that driving with 0.08 blood alcohol content or over is illegal in the States.

However, despite these laws, Peterman finds that determining THC impairment levels is not as straightforward as it is with alcohol. While the psychoactive part of THC drops dramatically after an hour of use, due to the way it’s metabolised the non-psychoactive traces remain for weeks.

Other reasons why the effects of THC on driving performance are relatively unknown is the until recently complete illegality of the drug, the fluctuating THC potency between plants, as well as the different effects it can produce through various methods of ingestion.

And the results from studies on the association between cannabis use and crash risk are also “inconsistent”. Peterman cites one study that found the increased risk of crashing after its use was 1.83 times that of an unimpaired driver, while another study found no association at all.

Safer than alcohol

A 2017 National Highway Traffic Safety Administration driving simulator study found that cannabis-dosed drivers took fewer risks than when they weren’t under the influence of the drug. And it was surmised that drivers conscious of their state drove more carefully to compensate.

The NHTSA researchers also found that drivers who had been drinking “tended to drive faster than the speed limit”, drove closer to the car in front of them, and in general, took more risks than when they weren’t under the effects of alcohol.

Although, a 2017 National Academy of Science report and a 2018 National Institutes of Health study both found that cannabis use increased the risk of motor vehicle accidents. The NAS report found there was substantial statistical evidence to support the heightened risk.

A standard still eludes

Peterman recommended that the US Congress continues to invest in research on “whether a qualitative standard can be established that correlates the level of THC in a person’s body and the level of impairment”, as well as collecting better data in regard to cannabis and driver use of it.

“The concentration of THC in a person’s blood rises rapidly after consumption, then drops rapidly, within an hour or two,” Peterman concluded towards the end of his report. “Impairing effects appear rapidly, but may remain for some time.”

And due to this, the analyst states that the amount of THC in a person’s body is a poor indicator of impairment, or, indeed, whether the individual has actually used it recently or whether they were “simply exposed to second-hand smoke”.

An unjust drug war tactic

Recently, Lismore Magistrate David Heilpern ruled that Nicole Spackman was not guilty of drug driving, because the THC in her system was due to passive smoking. And in 2016, he found Joseph Carrall innocent of the same charge because he last smoked a joint nine days prior to testing.

Throughout the state, there’s a growing awareness that the NSW roadside drug testing regime is a flawed system that’s unjustly punishing people for cannabis driving whilst they’re not actually under the influence of the drug.

And while the US report sets out that there’s no clear way to determine the effects of cannabis use on driver performance as yet, it’s very clear in the assertion that THC is a substance that stays present in the body for weeks after it no longer has an impairing effect upon an individual.

So, the only conclusion to draw is that regardless of its initial aim, today, roadside drug testing in NSW is being used to penalise a great many drivers for using medicine legally, or having traces of an inactive illegal substance in their body, which in some cases is through no fault of their own.

Drug Prohibition in Australia: Power, Politics and Prejudice

By Zeb Holmes and Ugur Nedim

The NSW government is continuing its hard-line approach towards the use and possession of illegal drugs, increasing the presence of police at music festivals and refusing to implement harm minimisation initiatives such as pill testing.

Premier Berejiklian and her cohorts continue to spout the rhetoric used by prohibitionists for generations – that drugs are illegal due to the fact they are dangerous, and harm reduction measures will send the message that taking these substance is permissible, thereby encouraging their use.

But the fact of the matter is that drugs are not criminalised due to their dangers, but for reasons based in power, politics and prejudice.

Lack of correlation between harm and criminalisation

A study by Professor David Nutt, Dr Leslie King and Dr Lawrence Phillips on behalf of the Independent Scientific Committee on Drugs conducted a ‘multicriteria decision analysis’ of 20 drugs, applying 16 criteria to determine the harm they pose, nine of which related to harms to the user and seven to harms towards others.

The criterion included damage to health, economic cost and links to crime. Each drug was given an overall harm score, and the results came as a surprise to many.

The study found that, perhaps unsurprisingly, the most harmful drug overall is alcohol. And despite the vast number of deaths every year due to illnesses caused by cigarettes, with all their contaminants, tobacco came in at sixth. Of course, both of these drugs are legal.

Illegal drugs took the second to fifth positions, descending from heroin at number two, to crack cocaine, methamphetamine and cocaine.

However, it is notable that many illegal drugs – such as MDMA (‘ecstacy’), ketamine and LSD – were assessed to be less than one-seventh as harmful as alcohol and, perhaps more importantly for prohibition purposes, were less than one-twentieth as harmful to others as alcohol.

Brief history of criminalisation

Australians in the nineteenth century were among the world’s largest consumers of opiates, in the form of patent medicines. Laudanum, for example, was a mixture of opium and alcohol and was administered to children.

And before federation in 1901, very few laws regulated the use of drugs in Australia.

The first Australian drug laws were patently racist in nature. A law in 1857 which imposed restrictions on opium was expressly aimed at discouraging the entry of Chinese people into the country.

Further restrictions were passed in 1897 which prohibited any use of opium by Indigenous, while other members of the population were allowed to possess and smoke the drug until 1908.

More restrictions came about to maintain relations with the United States. Influenced by temperance activists, US President Theodore Roosevelt convened an international opium conference in 1909, which eventually resulted in the International Opium Convention.

Australia became a signatory to the convention in 1913, and by 1925 the Convention had expanded to include the prohibition of opium, morphine, heroin, cocaine, and cannabis.

The initial criminalisation of marijuana also had a racist element, and was a poor excuse for curing a social ill.

Powerful media magnate William Randolph Hearst claimed that “marihuana” was responsible for murderous rampages by blacks and Mexicans, and disrupting the fabric of traditional society, and Hearst ensured his newspapers propagated those views.

Of course, alcohol prohibition was tried and failed in various parts of Australia around the time of the Great Depression. The Temperance Movement which led to greater regulation and, in some places, prohibition led to an increase in criminal activity and was eventually abandoned – with the power and influence of the Aussie drinking culture winning in the end, despite the drug’s harms.

The first wave of broader drug criminalisation in Australia was unconcerned with recreational drugs, which only became used more commonly used in the 1960s.

Drugs were primarily regulated under the various Poisons Acts of the states, reflecting the need to control the use of medicinal substances, rather than criminalising use.

But by the 1970s, all Australian states had enacted laws that made distinctions between possession, use and supply.

Start of harm reduction strategies

In 1985, the federal and state governments adopted a National Drug Strategy with a view to addressing the issue of drug misuse.

The strategy placed a heavy emphasis on prohibition and policing, but also recognised the need for harm reduction initiatives.

Australian governments, however, have invested the vast majority of resources into prohibition and enforcement, with a recent study finding that just 2% of funds go towards harm reduction, while a whopping 66% are spent in law enforcement alone.

Failure of the war on drugs

Drug prohibition has failed, however, to reduce consumption.

In fact, a substantial 43% of Australians admit to having tried an illicit drug at least once in their lifetimes – technically making them criminals, albeit undetected ones.

Professor Nicole Lee, from the National Drug Research Institute remarked that “while we focus on the use of drugs, we will continue to implement ineffective strategies, such as arresting people for use and possession”, adding, “if we focus on harms, we start to implement effective strategies, including prevention, harm reduction and treatment.”

Other countries, including Portugal, have moved away from a prohibitionist model and reaped enormous financial and social benefits as a result.

But as Australia continues to invest hundreds of millions of taxpayer dollars a year on drug law enforcement and incarceration, the above study is a salient reminder that prohibition is an irrational policy dictated by considerations other than the harms created by particular substances.

Cannabis Legalisation Must be Accompanied By Overhaul of Drug Driving Laws

By Paul Gregoire and Ugur Nedim

The ACT looks set to be the first jurisdiction in the country to legalise recreational cannabis use, which will bring the capital territory into line with ten US states, as well as the entire nations of Canada and Uruguay.

ACT Labor MLA Michael Pettersson introduced the Personal Cannabis Use Bill that legalises the possession of up to 50 grams of cannabis and the home cultivation of up to four plants. This legislation is currently before a parliamentary inquiry, which will table its report by 6 June.

“The committee is undertaking it’s work diligently. And I’m confident that the bill has the in-principle support of a majority of MLAs,” Mr Pettersson told Sydney Criminal Lawyers on Tuesday. “I have watched the testimony so far and am confident we are able to legalise cannabis for personal use.”

The Labor backbencher added that “the inquiry has generated a lot of interest from the public and that’s reflected in the submissions”. And one of these, which is from the ACT Law Society, has raised the issue around cannabis legalisation and the unfair drug driving laws in Canberra.

The association that represents the local legal profession has pointed out that drug driving laws, as they stand in the ACT, aren’t justifiable when it comes to cannabis, as, just like in NSW, police aren’t testing for driver impairment, but rather they test for the mere presence of the drug.

Minute traces in saliva

Section 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act) provides that it’s an offence to drive with “a prescribed drug in a person’s oral fluid or blood”. Under the current regime, ACT police test drivers’ saliva for the presence of a drug, meaning minute traces can read positive.

The dictionary of the Act outlines that there are three prescribed drugs that police are testing for: MDMA, amphetamines and THC, the psychoactive component of cannabis. This is the same as what NSW police were doing until it added cocaine to its testing regime in July last year.

Section 19 of the Act stipulates that a driver has broken the law if they have a “prescribed concentration of alcohol” in their “blood or breath”. This relates to police randomly breath testing drivers for levels of alcohol in their blood scientifically proven to lead to impairment.

The four levels of prescribed alcohol concentration are set out in section 4E of the Act. Most licence holders are permitted to drive with level 1 – up to 0.05 – in their system. But, no individual can drive with the higher levels in their blood. And as the concentrations increase, so too do the penalties.

In its submission to the inquiry, the ACT Law Society put forth that “that drug driving laws should apply in circumstances where a person is impaired and/or intoxicated by cannabis”. And it further recommends that section 20 be amended to reflect this is the case for that drug.

The “harshest” in the land

The ACT Law Society further asserts that the territory has the “harshest drug driving penalties in Australia and that the penalties imposed for committing a drug driving offence are more punitive than those for drink driving”.

An example of this, the Society points out, is that a first time offender “with a small amount of cannabis in their system” – which doesn’t mean they’re impaired – is subject to the same maximum penalty – a fine of $1,500 – as a repeat level 2 drink driving offender.

Further, a first time offender caught with a level of cannabis in their system that may not mean they’re under the influence whatsoever, automatically has their licence disqualified for 3 years, which is the same penalty a first time level 4 drink driving offender receives.

“The penalties imposed for committing a drug driving offence are disproportionate because they do not account for levels of cannabis impairment and intoxication,” the authors of the submission made clear.

Not impaired, but charged

“In our view,” the Society continued, “the higher penalties for committing a drug driving offence may be justifiable in circumstances where a person is impaired and/or intoxicated due to consuming a ‘hard drug’… but not when a person drives with a low-level of cannabis in their body.”

There have been cases in the past where people have gone before the courts under extraordinarily suspect circumstances. A senior ACT public servant tested positive for THC after being pulled over on her motorbike back in 2013.

The woman risked losing her job and the strict national security clearance that came with it. She was eventually given a non-conviction order after spending nine months in court claiming the low levels of THC in her system resulted from some muesli she’d been eating that contained hemp seeds.

And then there was the 2016 NSW Joseph Carrall case. Lismore magistrate David Heilpern found that Carrall was not guilty of drug driving after he’d tested positive for THC in a roadside test, as the man hadn’t smoked any cannabis for nine days prior to testing on the advice of a police officer.

Calls from the AFP union

Australian Federal Police Association president Angela Smith told the ABC that the technology the police are using can only give a positive or negative reading. And if the technology “could be developed, drug driving should be treated with low and high range tiers similar to drink driving”.

And there’s good news in this regard, as this technology does exist. The police in Norway are currently utilising it. In that country, authorities have been testing drivers for impairment levels in regard to 20 licit and illicit non-alcohol drugs since February 2012.

This includes the three illicit substances that ACT policing are presently testing local drivers’ saliva for traces of, as well as a range of prescription benzodiazepines that have been shown to be present in the bloodstreams of more drivers who cause crashes in NSW than THC.

So, it seems that it’s high time for police in the ACT, and indeed, right around Australia, to invest in technology that can test for drug impairment levels. This would not only improve road safety, but it would also stop authorities using this backdoor method to punish the public for illegal drug use.

NSW Government Continues its War on Music Festivals

By Ugur Nedim and Zeb Holmes

Despite a spate of drug-related deaths at music festivals in Sydney and other parts of New South Wales, the state government remains staunchly opposed to introducing harm reduction measures such as pill testing which have proven remarkably successful in several European countries – to the point where they are now part of the European Community’s best practice guidelines.

Instead, Premier Berejiklian’s solution appear to be pricing and regulating the events out of existence.

Organisers of the cancelled Psyfari music festival posted on their website that the Berejiklian government has “shown no mercy in wiping these events out in order to make a political point”. The festival was set to celebrate its tenth anniversary this year, but could not meet the additional $200,000 required of them at the last minute for additional ‘user pays policing’ fees.

Police are currently charging $127.80 per hour, per officer to ‘service’ festivals and demanding to have large numbers of officers attend – numbers that are unnecessary in the eyes of many.

The Bohemian Beatfreaks festival was similarly hit with a last minute $200,000 policing bill, after previously being quote $16,000 for the 3,000 person event.

And the Rabbits Eat Lettuce festival was forced to relocate across the border to Queensland after being priced beyond viability.

The Director of Byron Bay’s iconic Bluesfest is also foreshadowing a move out of NSW due to exorbitant compliance costs, potentially ending a 30 year tradition.

Yet another victim

Mountain Sounds is a music festival held annually in the Central Coast of NSW since 2014.

It was scheduled to be held this weekend but had to be cancelled due to the “impossible” restrictions and costs imposed by the state government, including (you guessed it) $200,000 in user pays policing costs levied just a week before the event.

“The combination of excessive costs, additional licensing conditions and the enforcement of a stricter timeline left us no option but to cancel the event,” event management advised.

Organisers had already agreed to downsize their site and cancel more than 20 acts to ensure compliance with newly-imposed safety, licensing and security costs.

The final straw was being advised they would need to pay for the constant presence of 45 police officers, despite being advised on 18 January 2019 that they would only need to pay for 11.

Pay up, or ship out

NSW Greens MLC David Shoebridge has been a vocal critic of the government’s war on music festivals.

“I’ve had a number of festival organisers speak to me about the way in which the NSW police are increasing putting these exorbitant charges on,” he advised. “They’ve described it as effectively a shakedown by the police demanding obscene amounts of money.”

He explained that in recent years, Local Area Commanders have been treating the user pays policing services as a “cash cow”, and that the Berejiklian government’s festival safety review is now being used “as a means of shutting down music festivals they don’t like”.

Government response

Premier Berejiklian has publicly stated that “I don’t think it’s fair for organisers to blame anybody but themselves.”

There are rules in place,” she remarked. “The festival organisers just have to obey the law. It’s not just about making a quick dollar, it’s also about keeping the people who turn up safe.”

The Premier failed to make mention of the unrealistically short notice given to festival organisers.

Interestingly, Berejiklian seemed to change her tune when it came to Bluesfest, saying she was hopeful the rules would not disrupt the iconic event.

“That festival has been going for 29 years, it’s a fantastic festival, it’s low risk so they don’t have anything to worry about,” she remarked. “I don’t want anyone who’s holding a festival for a long time to be worried, this is not aimed at you.”

Police response

Predictably, NSW Police Minister Troy Grant put the blame for cancellations squarely on festival organisers, calling their logistics “inadequate and incomplete.” This is despite the fact many of the festivals ran perfectly well for many years prior.

Mr Grant went so far as to claim organisers of Mountain Sounds failed to respond to police requests for information. Event management has strenuously denied the claim, stating “Mountain Sounds has never in its six years of operating not responded to the police,” they said.

Those who disagree with the way festivals are being treated point out that part of government’s role is to promote social and cultural events, and that the unrealistic costs and demands placed upon festival organisers are contributing to the state’s regression into the nation’s social wasteland.

Warnings Over Potentially Deadly Party Drug

By Sonia Hickey and Ugur Nedim

With the festival season in full swing, several reports have emerged about a rise in the use of the party drug ‘monkey dust’ or MDPV, the scientific name for which is 3,4-methylenedioxypyrovalerone, or MDPV.

Monkey dust is reported to have similar effects to stimulants such as ‘ecstacy’ or MDMA, but there are concerns that a ‘hit’, which can cost as little as ten dollars, can have severe adverse effects.

Bath salts by another name

Monkey dust is not new. It is derived from a South African plant called Khat, which can be chewed like a gum and thereby absorbed through the mouth.

It is what’s known as a synthetic cathinone, which is commonly known as concentrated bath salts.

MDVP was developed by pharmaceutical firm Boehringer Ingelheim in the mid-1960s as a central nervous system stimulant. But the drug’s development never got far enough for it to be tested on humans.

It first appeared in internet drug forum discussions around 2005, and its use became increasingly prevalent in the United States, Europe and elsewhere, where it has caused heart attacks, episodes of psychosis and violent behaviour.

While users report euphoria, feelings of empathy (although less than MDMA), increased sociability, mental and physical stimulation, and sexual arousal, the side-effects can include anxiety and paranoia, delusions, muscle spasms, and an elevated heart rate.

In extreme cases, the drug has been linked to rhabdomyolysis – a process whereby the body’s internal organs overheat and shut down.

It has also been linked to brain injury and death. However, the more serious side-effects are likely to result from high doses.

Monkey dust is illegal in Australia

MDPV has been illegal in Australia since 2010, around the same time in many other jurisdictions including the United States, Canada, and much of Europe.

A year after its ban, the National Institute on Drug Abuse (NIDA) reported that it has been responsible for thousands of visits to emergency room in the United States. In 2011 alone, there were 22,904 reports of MDPV use during emergency room visits. About two thirds of those visits involved combinations with other drugs.

In addition, poison centres took more than 6,000 calls about exposures to the drug in 2011.

The numbers had declined significantly by 2016, with NIDA reporting 266 reported exposures in the first half of the year.

In its pure form, MDVP is a white crystalline powder, but it can be any shade from off-white to pale brown. It is usually sold as a powder, powder-filled capsules or tablets.

MDVP tends to arrive in Australia from China, where it is legal to produce. It is most commonly used as a filler in ecstasy pills, but it can be ingested on its own – snorted, smoked, taken orally or injected.

Young people are being warned that while the drug might produce a ‘nice high’, it can have serious effects.

Pill testing technology can identify monkey dust

The good news is that MDVP can be identified through mass spectrometry or infrared spectroscopy, which is used in pill testing.

As the pill testing debate rages on, the fact remains that testing substances has the potential to save lives by advising users of the contents of their drugs and allowing them to make an informed decision about whether or not to take them and, if so, how much to take.

And importantly, pill testing tents create a valuable opportunity for health professionals to talk to drug users and better educate them about what they’re putting into their bodies, and even guide them to support services.

So far this season, five young people have died from drug-related causes at Music festivals across the country.

It’s important to remember under all circumstances that possessing, selling and using illegal drugs are criminal offences, with penalties that include prison time.

One night of fun can significantly impact on a person’s future, whether through apprehension and prosecution or by the effects of taking unknown substances.

So stay safe, look after your mates and have a great festival season.