What the new ACT decriminalisation means: its up to the police for it to work

The focus of praise or condemnation is the possibility that someone caught with small quantities of drugs like heroin, crystal amphetamines (ice) or cocaine may be issued with a Simple Drug Offence Notice (SDON) giving them the choice of avoiding a criminal conviction by paying either a fine of $100 or attending a drug diversion program. Think of SDON territory as an islet refuge beyond which the crocodiles of potential criminal prosecution lurk.

This is a big reduction on the previous harsh penalties, but if the people do not pay the small fine or if they fail to satisfy the attendance requirement of the drug diversion program, enforcement action may be taken against them. Moreover, the police may choose to prosecute rather than issue an SDON. In any case, police will seize their drugs. In short, police potentially remain the persecutor in the eyes of frightened users.

On the SDON islet, separated from the stresses of the criminal justice processes, the drug user is far less likely to be sacked, become homeless, experience marital breakdown or be confronted by the prejudice born of stigma that blocks them receiving the person-centred care they need from the health system. These benefits flowed from the expiation notice system adopted by South Australia in 1987 in relation to cannabis and subsequently applied in other jurisdictions including the ACT.

But stray beyond the SDON islet and the crocodiles of the drug law enforcement approach continue to threaten. It is in this connection that the quantities of drugs eligible for an SDON come into question. From the point of view of the user community those quantities should be realistic. From the point of view of the police they should not provide a cover for the drug user to engage in dealing. Quantities were the most contested aspect of the new legislation.

There is now "a small quantity" for which the police can choose to issue an SDON with a specified fine of $100 or prosecute with the penalty of a single penalty unit ($160).

The criminal penalties of up to $8000, two years imprisonment or both will still apply to possession of larger amounts that are less than a trafficable quantity. These are the harsh penalties that had previously also applied to what is now a small quantity.

The newly implemented legislation does not change the same harsh penalties under the Medicines, Poisons and Therapeutic Goods Act for non-medical use of benzodiazepine tranquilisers such as Xanax which in combination with alcohol are often implicated in accidental fatal overdoses or suicides.

"Small quantity" differs from thresholds identified by the Drug Policy Modelling Program at the University of New South Wales as being ones that genuine dependent users could reasonably be expected to possess for their own use. The amounts actually set were a compromise, with the net result that genuine users are still exposed to criminal prosecution.

Opponents fear that the ACT will be flooded with drugs but that cannot be worse than what happens already. In the half century after the import of heroin was prohibited in 1953, usage in Australia grew 70 fold from 5.25kg per million population to 350kg per million according to the National Crime Authority in 1999.

In 2001 about 660,000 Australians had used crystal methamphetamine in the previous 12 months whereas the drug was unknown in Australia 10 years before.

"Recent" cocaine use grew ninefold between 1993 (0.5 per cent) and 2019 (4.5 per cent).

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Data like this reinforce the conclusion that continued and intensified drug law enforcement, as opponents of the bill seek, gifts the distribution of dangerous substances to organised crime.

The biggest drawback of the new decriminalisation is that it fails to address the problem of supply. Users will therefore continue to have contact with a criminal underworld in order to secure their drugs. A harm reduction drug policy framed on public health principles which the government espouses cannot be fully realised until supply is controlled by the medical profession, as would have been the case had the Howard government not vetoed the trial of heroin assisted treatment that Kate Carnell, the then Liberal chief minister and her health minister Michael Moore, championed.

Canberra's 2011 social plan aspires to the ACT being "a place where all people reach their potential, make a contribution and share the benefits of an inclusive community". Drug law reform remains a work in progress before that vision can be realised.