Drugs and the Law



The problems caused by illegal drugs

Drugs, both legal and illegal, can be responsible for a great many problems to individuals and society, including physical illness, dependency and psychological problems, social disruption, violence, family breakdown, economic loss, accidents and death.

In Australia, there were an estimated 22,700 drug-related deaths in 1997. Of these, 18,200 were due to tobacco, 3,700 attributed to alcohol and 800 to illegal drugs.

There are some problems that are caused purely by the fact that a drug is illegal.

  • Many people have been imprisoned (even executed in some other countries) for dealing in or using illegal drugs. For many the stigma of a criminal record continues to burden them long after their drug use has stopped.
  • Restricting the supply of an illegal drug can make the drug more expensive. Many users of heroin are forced into criminal activities, such as theft and prostitution, in order to obtain sufficient money to support their drug use.
  • Because some drugs are illegal, they are not subject to any form of quality control. Drugs bought on the street are of unknown strength, which increases the risk of accidental overdose. While there is always a chance of overdose, this can be of particular risk to the one-off, inexperienced or occasional user. Street drugs can contain other unwanted or dangerous chemicals causing illness or death.


Drug laws

The Federal Customs Act covers the importing of drugs, while each state has laws governing the manufacture, possession, distribution and use of drugs, both legal and illegal. Drug laws in Australia distinguish between those who use drugs and those who supply or traffic drugs. Victoria Police recently introduced a cannabis cautionary scheme for those caught using cannabis for the first time. Under this scheme first-time offenders are formally cautioned by police then referred to a drug treatment centre. Police have also begun trialling a cautionary scheme for heroin and other illicit drugs.
The Drugs, Poisons and Controlled Substances Act (DPCSA) includes these major drug offences: use, possession, cultivation, and trafficking:
Use includes smoking, inhaling of fumes, or otherwise introducing a drug of dependence, into a person’s body (including another person’s body). (A drug is defined as a “drug of dependence” if listed as illegal except under prescribed conditions.) Generally there is a lesser penalty for the use of cannabis compared to other drugs.
Possession is the most common offence. Possession means having control or custody of a drug. Knowledge of such possession must be proven in court. Possession applies both to drugs found on the person or their property, unless it is proven the drugs do not belong to that person. In Victoria, those found in possession of a small quantity of cannabis (50g or less) for the first time are cautioned formally then referred to a drug treatment centre. The penalty for the possession of any drugs not related to trafficking is $3000, or one year imprisonment, or both.
Cultivation is the act of sowing, planting, growing, tending, nurturing or harvesting a narcotic plant. Any of these activities constitutes the offence of cultivation. If a person cultivates ‘a trafficable quantity’, or intends to sell even a small quantity, it is likely that charges for possession, cultivation and trafficking will be laid.

In Victoria if the court is satisfied that the cultivation is not related to trafficking, then the penalty is a fine not more than $2,000 and/or imprisonment not longer than one year. If the cultivation is related to trafficking, the penalty is a maximum of 15 years imprisonment, or $100,000 fine, or both.
Trafficking is a very serious offence. (The DPCSA defines trafficking to include: the preparing of a drug of dependence for trafficking; manufacturing a drug of dependence, or selling, exchanging, agreeing to sell, or offering for sale, or having in possession for sale, a drug of dependence.) If this is done in commercial quantities, the penalties are extremely severe. Bail may be refused unless there are exceptional circumstances. The criminal charge of murder is the only other offence that has a similar bail condition. In Victoria, the penalty for trafficking a commercial quantity of a drug of dependence is a maximum of 25 years imprisonment and up to a $250,000 fine.

Current responses to the drug problem

In Australia drug problems are dealt with in three main ways:

Reducing the supply of drugs

Law enforcement activities aim to prevent illegal drugs from entering the country, or being manufactured and distributed in Australia.

One result of restricting the supply of illegal drugs is to force up the street price, because users are forced to bid against each other for the limited quantity available.

There are also many laws restricting the supply of legal drugs. For example, making sure that alcohol is not sold to people under 18 years of age.

Reducing the demand for drugs

It is difficult to get accurate figures on how many people use illegal drugs, simply because they are illegal. However, a 1998 national survey showed that 39.3 per cent of the population had tried cannabis; 8.7 per cent amphetamines; 10 per cent hallucinogens; 2.2 per cent heroin and 3.9 per cent inhalants. Illegal drugs were used most often by people in the 20-34 year age range.

Reducing the demand for drugs involves a range of activities including:

  • giving people the necessary information to make responsible choices about drug use;
  • working to ensure that people have an adequate standard of living and positive social and personal relationships so they are less likely to turn to drugs; and
  • helping people with drug problems reduce their drug use through access to treatment and rehabilitation programs.


Reducing the harm caused by drug use

Where drug use does occur, it is important that the harm caused to individuals and the community is minimised. This means concentrating on the specific harms and practical ways to reduce them.

For example, providing access to clean needles through needle exchange programs has reduced the spread of HIV/AIDS and hepatitis B and C. Drink driving laws and random breath testing has reduced the harm caused by drink drivers.

Under the National Drug Strategy (NDS), Australia’s approach to illegal drugs combines law enforcement with harm reduction.

The legislation debate

There is some concern that existing drug policies have failed and it is time to introduce a relaxation of drug laws. Opposing this is the concern that any softening of laws will lead to increased drug use and greater problems in society.

Some of the specific criticisms about existing drug policy are:

Existing drug laws fail to greatly reduce harms, and may actually increase them


Some critics claim that current drug laws fail to reduce harm because they focus on the wrong drugs. Alcohol and tobacco account for around 97 per cent of drug-related deaths in Australia and 90 per cent of economic costs.

While there is medical evidence to indicate that some illegal drugs (such as heroin) are less harmful to the body than alcohol, the statistics above should be interpreted with caution. No one knows how much heroin or amphetamines or cocaine might be used, and how many deaths might result, if those drugs were made legal.

It is also clear that the illegal status of drugs, such as amphetamines and heroin, add greatly to the risk of overdose, poisoning and infection. Users may suffer legal sanctions and social stigma, be forced to associate with criminals to obtain drugs, or commit crimes to raise sufficient money to purchase drugs.

Drug laws are inconsistent, or even hypocritical


Many of the distinctions between legal and illegal drugs are the result of historical factors and cultural bias rather than a rational assessment of the harms caused by those drugs.

While many people recognise that there are inconsistencies in our drug laws, only some see this as an argument for legalising all drugs. For others, it is an argument for making drugs, such as alcohol and tobacco, illegal. They point out that having alcohol and tobacco legal is bad enough. Why add cannabis or heroin to the list?

Drug use should not be seen as a moral issue


Traditionally, our society has seen drug use in moral terms. However, since the appearance of the AIDS virus, the need to accept that people use, and will continue to use, drugs has become essential. Health workers now generally agree that it is more effective to work with drug users and provide them with information about safe use than to morally condemn them, and so drive them underground.

Many people have expressed opinions in the debate over legalisation of drugs: politicians, academics, police, doctors and others. Most of these opinions contain elements of practical and moral points of view. The questions remain: Should illegal drugs remain illegal? Should legal drugs remain legal? Are there other options available?

Options for drug policy reform

Various options for drug policy reform have surfaced over recent years:

Harsher penalties

This option is based on the logic that increased penalties for trafficking would act as a deterrent. The experience of other countries that have adopted this policy is not very encouraging. In 1989, President Bush committed $7.9 billion to the ‘War on Drugs’ in the United States, despite clear evidence that law enforcement was failing to restrict illegal drug availability and use.

Some reasons have been put forward as to why illegal drug use appears to be so unresponsive to harshness of law enforcement measures:

· Harsher penalties lead to increased drug prices. This increases the incentive for people to join the illegal trade because of the substantial profits to be made.

· Most drug traffickers do not consider the possible risks, and if they do it is usually in terms of whether or not they will get caught, rather than the possible penalties. Therefore, unless the risk of detection is high, the increased penalties are unlikely to deter drug traffickers.

Prescription Model

Some people argue that the main problems caused by illegal drugs (in particular, heroin) could be overcome by the establishment of a prescription system. The drug would be available to registered users on prescription. The drug user would have to periodically attend a doctor or clinic to get a renewal of their prescription.

Supporters of this model argue that the legalised supply of heroin by prescription would:

  • reduce the demand for illegal heroin;
  • undercut the illicit market;
  • increase the number of identified drug users who could then receive treatment and other help;
  • and reduce the need for users to commit theft and other crimes to support their addiction.

Opponents of this model argue that it supports drug use, and does not offer any encouragement for users to stop their drug taking. It is argued that drug users would be very well off, with cheap, clean heroin, subsidised by the taxpayer, available to them.

Not all drug users use regularly or are dependent. Recreational and irregular users would fall outside the guidelines of the program. They would either have to continue to obtain their drugs illegally, or would have to increase their habit so as to be eligible to obtain a prescription.


The term decriminalisation has been used in a number of different ways, to mean anything from reducing the penalties attached to drug offences, to completely removing all drug offences from legislation.

Decriminalisation can be dealt with in the manner of a fine. However, it is generally argued for in relation to minor drug offences such as possession. More serious drug offences, such as drug trafficking, remain major crimes and (consequently) incur harsh penalties.

Decriminalisation of cannabis use has occurred in South Australia and the ACT. An ‘expiation notice’ system has been introduced where a fine is imposed for possessing small quantities. So far, there has been no indication that the level of cannabis use in those states has significantly increased.

Decriminalisation would save on law enforcement efforts and on court costs. The major argument against decriminalisation is the concern that it would lead to a substantial increase in the use of those drugs that were decriminalised. (People can still be dealt with harshly under decriminalisation, however; fines can be difficult to meet, especially for some drug users whose financial assets may be limited.)
Public support
Any changes to drug policy require community support if they are to be effective. A recent survey showed that there is not general community support for a relaxation of drug laws. Over 91 per cent of people opposed proposals to legalise the personal use of heroin, amphetamines (92 per cent), cocaine (92 per cent), while 55 per cent opposed legalising cannabis. Increasing the penalties for the sale or supply of these illegal drugs was well supported (heroin 88 per cent, amphetamines 86 per cent, cocaine 86 per cent and cannabis/marijuana 63 per cent).

Where to from here?

There are no simple solutions to the illegal drug problem. The debate surrounding illegal drug use, which is frequently controversial, is valuable to provide a greater understanding of the issues. This is vital if politicians, legislators and the public are to make the right decisions regarding illegal drugs.

It is clear that law enforcement strategies alone will not solve the ‘drug problem’. A combination of strategies, including community education and development, and legal initiatives, are needed to reduce the harms associated with drug misuse.

There are many unanswered questions about what effects changes to drug policy would have. Only by carefully examining the options, carrying out research and investigating the impact that changes have had in other countries, will we be in a position to choose the best way to address illegal drug issues in our society.