Drug Law Reform

Drugs on Dark

by Stan Winford, Associate Director, Research, Innovation and Reform.

Since the mid-80s—on paper at least—Australian drug policy has been based on the principle of ‘harm minimisation’. Harm minimisation is an overarching framework, intended to guide drug policy responses to the harmful use of licit and illicit drugs. Set out in the National Drug Strategy, the framework is underpinned by the ‘three pillars’ of ‘supply reduction’, ‘demand reduction’ and ‘harm reduction’. Supply reduction refers to law enforcement activity aimed at reducing the supply and availability of drugs.  Demand reduction encompasses treatment services and preventative strategies that aim to prevent or delay the uptake of drugs, or stop or reduce drug use once it has commenced. Demand reduction is usually thought of as a continuum that ranges from prevention and education through to treatment interventions for people who use drugs. Harm reduction, the third pillar, accepts that despite the existence of the other two pillars drug use occurs, and aims to reduce its harmful consequences.

Harm minimisation should reflect a balance of all three of these approaches. This all makes sense: drug-related harms occur in a variety of contexts, so responses need to be multi-faceted. The reality, however, is that each of the pillars attract vastly different levels of funding and support. In Australia, approximately 66% of funding is spent on law enforcement activities. Spending on treatment attracts 21%. Only 9% is spent on prevention, with just 2% spent on harm reduction. Harm reduction is the poor cousin, while supply reduction takes the lion’s share, despite little evidence of its success.  In fact, while ‘record seizure’ announcements are made with increasing frequency—with police and customs proudly displaying the ‘massive drug haul’ at photo opportunities engineered to demonstrate their successes and return on investment for government—recent studies indicate that Australia has one of the highest usage rates of illicit drugs in the world, with methamphetamine usage in particular experiencing strong growth, and price and availability suggesting an illicit drug market without significant supply side challenges.

Harm reduction strategies, by contrast, seems to be withering on the vine. Some argue that as long as harm minimisation policy remains lop-sided, harm reduction will be undermined by the focus on enforcement. There are those who also argue that enforcement and supply reduction activity is becoming a source itself of substantial drug-related harm.

There are many examples which can be cited in support of this argument. One such example is the use of drug detection dogs in nightclub precincts or at music venues. Such highly visible policing operations have followed well-publicised incidents of drug-related harm such as multiple overdoses and emergency admissions to hospitals associated with particular events or venues. To what extent is the use of dogs reducing drug-related harm? One might think that they may serve as a deterrent, reducing the overall use of drugs and prompting drug users to decide the risk of apprehension outweighs the benefit of a high. Research involving drug users, however, indicates that they are employing a range of adaptive responses to avoid detection which themselves may be particularly risky and lead to additional adverse health impacts. Drug users have described resorting to ‘gobbling’ or rapid consumption of large quantities of drugs, pre-loading, inherently dangerous methods of drug carriage and concealment practices including bodily secretion.

Another example, critiqued along similar lines is the intermittent use of police operations in drug ‘hot spots’. These operations often follow media coverage of complaints about loss of amenity associated with overt dealing: disturbingly drug-affected people on the streets, discarded needles, and overdoses.  The police responses are intended to disrupt street-based drug-related activity, targeting street-level drug trafficking and use. They often cause a cessation of activity in a location for a period of time. However, the adverse effects for drug users can include impeding access to important health and other social supports, such as needle exchange programs. Intense policing activity in the form of temporary operations can also break links built carefully by street-based outreach support and treatment referral services. These are aimed at transient populations, such as people experiencing homelessness, and are designed to intervene in devastating cycles of disadvantage associated with drug use. Such policing activity may also be counterproductive from a supply reduction perspective. One effect is the displacement of drug trafficking activity to other locations, creating new challenges for monitoring and enforcement of drug related crime. This displacement effect may also undermine planning and resource allocation for harm reduction programs and services and local targeted initiatives.

Another phenomenon which some say can be directly traced as a response to supply reduction strategies is the emergence of new psychoactive substances such as so-called ‘synthetic’ drugs in existing drug markets. ‘Legal highs’ such as the synthetic cannabinoid ‘spice’ began to emerge, and many variations followed after regulators responded. The appearance of other psychoactive substances such as NBOMe as analogues for more well-known illicit drugs such as LSD in response to changes in regulation, price and availability adds to the suggestion that some forms of supply reduction activity may function as a stimulus for the rapid evolution of the drug market. Changing patterns of use are also seen in response to enforcement strategies. In 2016, a NSW Ombudsman report indicated that some drug users were switching consumption from MDMA/ecstasy to GHB—a colourless and odourless drug which is difficult for users to accurately dose, and has been linked to many overdoses—purportedly because they believed it was harder for drug detector dogs to detect. Finally, some argue that increasing potency of some illicit drugs is a response to the need to reduce the risks and cost associated with the movement of larger quantities of drugs between manufacturer and consumer. In short, these unintended consequences of supply reduction strategies are thought by researchers to represent responses of drug users and drug markets to variations in regulation, availability and detectability of alternatives.

Whether these concerns are warranted is difficult to assess, since the debate about the most effective way of responding to drug-related harms tends to be one-sided.  Just as certain supply reduction strategies are pursued uncritically in the face of mounting evidence of failure, claims about their arguably counterproductive consequences for some reduction strategies are rarely examined in the cold light of day. The overwhelming focus on law enforcement inhibits meaningful public conversations about harm reduction. Because politicians and police—and particular elements of the media to which they respond—are so focussed on sending an unequivocal message about the harmfulness of drugs, it seems impossible to publicly admit that people continue to use drugs and that things can be done to reduce harms associated with drug use. This nuance, apparently, is not compatible with the message which must be sent, and the perceived political risk of deviating from it. Any possibility of a response to drug-related harm that acknowledges the fact that people continue to use illicit drugs is ruled out both rhetorically and practically.

This also means that new measures designed to reduce harm can be quickly discounted despite compelling evidence and widespread community support. Medically supervised injecting rooms are a good example of this phenomenon. There are now more than 100 of these facilities in existence around the world, and positive evaluations provide evidence that they reduce overdose-related deaths, connect drug users with support and treatment where needed, and reduce the spread of blood borne viruses such as hepatitis. There is no evidence that they lead to an increase in crime or drug use in and of themselves. In Victoria, a recent coronial inquest into an overdose death in the Richmond area following a spate of similar deaths led to a recommendation that a medically supervised injecting facility be established. A coalition of local supporters including ambulance and firefighters’ unions, local traders and community members and councillors called on the State government to establish such a facility. A private member’s bill has been introduced into the Victorian Parliament. The possibility has nonetheless been ruled out by the Victorian Government. There remains only one such facility in Australia, established in Kings Cross in 2001.

Similarly, governments in Australia could begin testing drugs as part of a drug monitoring system aimed at reducing harm and increasing safety. Despite numerous calls and the success of programs in Europe and the United Kingdom, properly implemented ‘pill testing’, which studies have shown can reduce drug-related harms and change patterns of use in a positive way has failed to attract support from Australian governments. Part of the reason for the reluctance to allow for the possibility of ‘pill testing’, once again, is the problem authorities seem to have with communicating a message that involves harm reduction. How can we support testing drugs to make their use safer, they say, when our message is that people should not use drugs because they are unlawful? Instead, the unsubtle imagery used in public education campaigns is that of grotty clandestine labs and unhygienic chemistry involving solvents and drain cleaner. In fact, police have information about the composition of seized and forensically tested drugs, but it is not made available to the public in ways which could change patterns of consumption, and reduce harm. To try to do so in the absence of official support, communities of drug users have established their own early warning systems, posting images of pills and descriptions of their composition and effect.

This unwillingness to address harm reduction also means that little heed is paid to the voices of people who actually use drugs, and what might change their behaviour. While public policy innovations like ‘nudge theory’ are beginning to influence approaches in other contexts, governments maintain an entirely unsophisticated approach to service and program design when it comes to harm minimisation. For example, one strand of the opposition to ‘pill testing’ proceeds on the premise that drug users are too unsophisticated to distinguish between information warning them about the chemical composition of a drug they plan to consume and will read testing as a green light for drug use. In fact, there is research evidence to demonstrate that this is clearly not the case, and plenty of evidence that could underpin a more effective response if only there were the will to do so.

Meanwhile, a wilful blindness, officially, to the reality that drug use occurs in prison amongst prisoners is partly to blame for the absence of needle and syringe programs in Australian prisons. Prison needle and syringe programs are endorsed by Australian health and medical peak bodies, as well as global bodies like the WHO, UNAIDs and UN office on Drugs and Crime. This state of affairs presents a significant public health risk, since almost all prisoners eventually return to the community. There are some promising signs in some Australian jurisdictions that this may change, with the ACT government in particular expressing support for a trial. On the other hand, other examples suggest that it might not be wise to hold our breath. The extraordinarily drawn-out struggle of Victorian parents using cannabis oil to treat their epileptic children seeking law reform that would permit limited use of cannabis for medical purposes is an episode that shows just how cautious politicians feel that they need to be to avoid exposing themselves to the risk of being associated with policies that could be interpreted—however absurdly—by political opponents as the beginning of the slippery slope that leads to legalisation.

As well as making good policy difficult politics, an overt focus on supply reduction measures creates an environment conducive to discrimination against drug users. Stigmatisation means drug users are less likely to identify themselves as drug users and drives them away from accessing treatment and support. Discrimination against drug users has a long history in Australia. In 2003, for example, attempts to change the Disability Discrimination Act to permit discrimination against drug users were introduced to the Australian Parliament but did not become law after a concerted community campaign. Another example that can still be found in Victorian statute books is the Victims of Crime Assistance Act, which enables a court to take evidence of previous unrelated illicit drug use into account to exclude victims of crime from access to assistance. Only last month, the Commonwealth budget included a proposal to drug test NewStart recipients without a clear policy objective and no evidence base, amid concerns from experts about the harmful consequences of withdrawing financial support from people with substance use disorders. Indeed, some believe that an evidence base or policy objective are unnecessary when illicit drugs are involved.  The mere involvement of illicit drugs is apparently sufficient to justify disproportionate or inconsistent responses. For example, drug driving laws penalise drivers merely for the presence of certain illicit drugs in their bodies, rather than a level demonstrated to result in impairment. Drink driving laws by contrast require a blood alcohol content consistent with impairment before a driver may be sanctioned. In Australia unlike in the United Kingdom or New Zealand, drugs are not classified as more or less serious for the purposes of the criminal law and sentencing.  The curious effect of this, among other things, is that when sentencing a drug trafficker, a Victorian judge is not permitted to distinguish the penalty imposed on the basis that the drug in question was, say, cannabis rather than heroin.

What, then, does all of this tell us? If the eminently sensible principles of ‘harm minimisation’ are to be effective in reducing harms associated with drug use, then a number of changes must occur. First, there must be a more balanced approach to funding and support for the ‘three pillars’ of Australian drug policy.  Secondly, balance must also be returned to the debate about how best to respond to drug-related harm. This balance can only be achieved if strategies linked to each of the pillars are actually assessed on the evidence, and given the opportunity to operate effectively without being undermined by poorly targeted enforcement strategies. It should no longer be enough for politicians to be satisfied with being seen to be ‘tough on drugs’, whether or not this response is actually effective. Thirdly, we need to be grown-up enough to admit that illicit drug use occurs, and recognise that we can reduce associated harms without undermining the enforcement message. People can cope with more than one message, and attempts to reduce drug-related harm are not the same thing as condoning the use of illicit drugs. Finally, if our responses are to be effective, it is critical that the missing voices of those who are closest to the problem—and with the greatest stake in its resolution—are heard. If we are not listening to them, how can we expect them to heed the messages travelling in the other direction? If we do not make these changes, we cannot expect to see changed outcomes, and can rightly be accused of standing by while discrimination, disadvantage, ill-health and entirely preventable deaths continue to occur.

This blog post was inspired by a Wheeler Centre event – Question Time: Drug Laws, on 16 May 2017 at which CIJ’s Stan Winford was a panel member

A podcast of this event can be found here at the Wheeler Centre website.

System which entrenches disadvantage is poorly designed

JUG artwork 1

If we were asked to design a legal system from scratch, it’s unlikely that we’d craft it to increase reoffending. In the way that our justice system responds to certain members of the community, however, that’s exactly what we’ve done. From cops, through courts to Corrections, our legal processes are shaped in ways that entrench disadvantage and make it almost impossible for particular people to establish a life beyond the cycle of disadvantage and crime.

No group could be more vulnerable to this design flaw than people with Acquired Brain Injury. As Brain Injury Awareness week rightly highlights, ABI is often known as the ‘hidden disability’, acquired at some point in a person’s life after birth – either through traumatic injury, such as a car collision or violent assault – including family violence, or through chronic problems such as substance abuse.

Manifesting in a range of ways, ABI is one of a range of factors which make people more likely to come into contact with the criminal justice system and less able to comply with its directions once they do. In fact, research commissioned by Corrections several years ago revealed that 44% of men and 33% of women in Victoria’s prisons have an ABI – an extraordinary figure which should tell us that something is terribly wrong under the metaphorical bonnet of the justice system.

Few among the general population, after all, have a hope of understanding the complex processes and language of a courtroom. Few would not be intimidated by an interaction with police or frightened when flung into a cell. When the experience is compounded by cognitive impairment, by potential mental illness, or by the prior experience of victimisation to which we know that people with ABI are vulnerable, then this experience becomes even more alienating.

Yet many police do not ask or even understand what an ABI is; most courts lack flexible or appropriate sentencing options; and our prisons systems – confirmed by last year’s Ombudsman’s report as effectively operating in a disability environment – are ill equipped to respond effectively. As a result, people with ABI, like people with other forms of disability, are cycled in and out of the prison system – unlikely to comply with orders, unable to understand the process, released to homelessness and inadequate support which means they turn to offending to get by.

Governments are recognising that this makes no fiscal or social policy sense but they struggle to grapple with how to begin to undo this mess. This is why our Enabling Justice project – a partnership between the Centre for Innovative Justice and Jesuit Social Services – is using the voices of people who have an ABI and who have experienced the criminal justice system, to design better responses. Their stories – and their participation in a Justice Users Group (JUG), which puts their voices front and centre – help to identify tangible ways to make each interaction more constructive and effective.  A podcast with JUG members Kerry and John can be found here.

Many of these suggestions are specific to people with ABI. As Brain Injury Awareness week also highlights, however, only a small proportion of ABI is identified. This means that we have to design the entire system differently – assuming that, if someone has come into contact with the criminal justice system, they are potentially already vulnerable.

Yes, there are a small number of hardened offenders in our prison for whom there seems no other option but incarceration. The majority of those in our prisons, however, are likely to have come from one of only a few Victorian postcodes and a background of intergenerational unemployment. They are unlikely to have completed their education. They are likely to have a substance abuse problem or mental illness. They are likely to be homeless. If they are a woman they are likely to have experienced family violence or childhood sexual assault. They may have a gambling addiction and be coerced into crime to pay off their debts. What’s more, by coming into contact with the criminal justice system, their situation is likely to have been made significantly worse.

Given that we know this, we have to design a system that takes this knowledge into account. Doing so is not about making excuses or letting people off the hook. It is about recognising that the community is losing money from a system which, in far too many cases, cements the commission of further crime, rather than prevents it.

It is also about recognising that people with ABI need justice to function as a positive, rather than a negative, intervention in their lives – treating them with the dignity and offering them the hope that the rest of the community rightly expects.

Rob Hulls                                                                Julie Edwards
Director                                                                  CEO
Centre for Innovative Justice                           Jesuit Social Services