Greg Barns, National Criminal Justice Spokesperson for the Australian Lawyers Alliance, calls for evidence-led cannabis policy reform.
One of the most depressing aspects of the futile war on drugs in Australia is that it has slowed advances in research into the therapeutic and health benefits of cannabis use. An urgently needed change in attitude towards drugs in Australia could have huge health advantages and assist the many people who would benefit immediately from legal, less expensive and more readily available access to cannabis that is subject to quality control. Greg Barns, National Criminal Justice Spokesperson for the Australian Lawyers Alliance tells us more.
In recent years there have been some small steps taken towards an improved approach to drug policy in some parts of Australia. However, as someone who has been advocating for reform for more than 20 years, progress is still not occurring nearly fast enough.
Current Australian cannabis policy
Unfortunately, in Australia we continually see research and evidence overwhelmingly ignored in favour of irrationality and prejudice when making decisions about the use and accessibility of cannabis.
For many years now, the Australian Lawyers Alliance has been arguing that the possession and use of cannabis should be decriminalised at the very least, and preferably legalised, in Australia. It is evident that decriminalising or legalising drugs does not increase use but instead allows harm minimisation policies to be put in place that results in better outcomes for users.
Every year in our courts millions of dollars are spent on the pointless prosecution of drug users, including those who use cannabis, clogging our court systems and fuelling the need for governments to build prisons that would be otherwise unnecessary if we recognised that cannabis, and other drugs for that matter, are less harmful than alcohol and nicotine.
Every day in our courts magistrates and judges are forced to use tired and irrelevant rhetoric about ‘the evils of illicit drugs’ when they, along with everyone else in the courtroom, know that laws in this area are failing monumentally. As the Economist has rightly observed, ‘in the war on drugs there are no wins, only pyrrhic victories.’ Or, as a senior judge once told me: ‘every time I sentence a drug trafficker I automatically create a vacancy in the market.’
The criminal justice system carries the major burden of drug policy in Australia. Most taxpayer dollars deployed for drug policy go to law enforcement, not to health or treatment. This law enforcement model also disproportionately targets users, and the imprisonment of users – along with the imposition of non-custodial sanctions like fines – are proven to be ineffective at treating addiction.
Laws are only worthwhile and effective if they are respected by the community. If a law is regularly flouted, this is telling sign that it has lost its authority and should be repealed. This is the case with current cannabis laws. The prohibition of the use of cannabis is ignored by many in Australia with research showing that in 2016, 35% (meaning approximately 6.9 million people) had used cannabis in their lifetime, while 10.4% (or 2.1 million) had used cannabis in the previous 12 months.1
The ‘war on drugs’ policy of the last 50 years has not decreased the amount of people using drugs; instead it has allowed criminal syndicates to flourish, and huge numbers of people to suffer as a result.
The Nobel Prize winning economist, the late Gary Becker, along with his colleague Kevin Murphy, argued in the Wall Street Journal over 20 years ago: ‘[T]he harder governments push the fight, the higher drug prices become to compensate the greater risks. That leads to larger profits for traffickers who avoid being punished.’ Nothing has changed since then; and the cannabis market reflects this reality.
It is time for all Australian legislatures to heed the growing calls to rip up existing drugs laws and replace them with health-based regimes and regulations.
Change in the Australian Capital Territory
It is inevitable that the laws around the use and possession of cannabis in Australia will need to change, and we are seeing some progress. Last year the Australian Capital Territory (ACT) became the first jurisdiction in Australia to legalise the possession, use and cultivation of small amounts of cannabis. Under the Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019, which came into effect on 31 January 2020, adults will be able to grow a maximum of two cannabis plants and possess up to 50 grams of cannabis per person. However, the sale or supply of cannabis is still a criminal offence.
This change is welcome at a number of levels, not least because it means that at last one Australian government is bringing us into line with Canada, vast swathes of the US, Latin America and Europe.
The ACT Government has recognised that taxpayer funds are wasted by prosecuting people who use cannabis, and police time is wasted in charging them. Smart policy means legalising, regulating and taxing the product to enable revenue to be raised. As noted above, the only group that likes the idea of drug prohibition are drug traffickers, who thrive in the black market. The best friends of drug traffickers are politicians who are opposed to legalising cannabis.
In all other states and territories of Australia, possession and use of cannabis is still illegal and can result in punishments including cautions, fines and imprisonment.
The ACT law is in conflict with national laws on cannabis use and we are yet to see how this will play out in regards to law enforcement. In particular, there is real concern that a person in the ACT could still be charged with cannabis offences under Commonwealth laws.2
Progress in medicinal cannabis
Over the last few years, access to medicinal cannabis has finally been made possible for patients in Australia through a highly regulated scheme. While this is a step in the right direction, the number of people who have been able to access medicinal cannabis is low compared to many other countries. The current regulatory model is making it difficult for many people to access the system and a new and fit for purpose framework is needed. The current regulatory model, which has sought to fit the square peg of medicinal cannabis into the round hole of conventional medicine, is proving to be wholly inadequate.
As a result of the challenges in the scheme, patients often must resort to self-medication using illicitly obtained cannabis. Families are desperate to provide the best possible medical treatment for their loved ones; it is incredibly distressing to watch a chronically ill family member suffer painful and debilitating symptoms, with the knowledge that medicinal cannabis would help but is out of reach. The cost, the regulatory burdens and the outdated approaches of some medical practitioners means that these families are often forced to source illegal, black market cannabis, which then puts them at risk of serious criminal charges.
It has been reported that patients are being quoted up to $34,000 per year to access medicinal cannabis, following TGA approval. It is not surprising that many patients simply cannot afford treatment under the proposed arrangements and instead source more cost effective cannabis for medicinal use through illegal channels.
If the issue of cost is not addressed, black market cannabis will remain considerably more inexpensive than lawfully manufactured medicinal cannabis, which continues to deter patients from accessing medicinal cannabis lawfully.
The current barriers to patient access to medicinal cannabis in Australia have detrimentally impacted the mental and physical wellbeing of patients and their families who are struggling to access medicinal cannabis. Change is urgently needed.
Human rights implications
As acknowledged in the United Nations Development Programme’s International Guidelines on Human Rights and Drug Policy3, all aspects of our policy response to managing the use of drugs have human rights implications.
Currently, we waste taxpayers’ money, devalue lives and fail to provide medical support to those who need it by refusing to acknowledge that drug use is a health issue and requires a response that has human rights at the forefront.
In particular, any discussion of medicinal cannabis should be underpinned by the International Convention on Economic, Social and Cultural Rights (ICESCR)4, which states that everyone has the right to the highest attainable standard of physical and mental health, and to the Australian Charter of Healthcare Rights5, which provides that all Australian patients have the right to receive safe and high-quality care in an effective continuum.
The right to legally use medical marijuana for those in desperate need becomes an issue of compassion and empathy. If medical marijuana can be beneficial to those in pain – and we know it can – then we need to improve access to legal, affordable medicinal cannabis.
When people are suffering, governments have an obligation under the International Guidelines to amend ‘laws, policies, and practices that inhibit access to controlled substances for medical purposes.’3
There is also an obligation to focus on harm reduction among those who use drugs rather than adopting punitive strategies that punish rather than support the health needs of drug users. This too respects the individual’s right to the highest attainable standard of health.
If governments used a human rights framework to make decisions about drug policy, we would be in a better position to more thoroughly explore the therapeutic benefits of cannabis.
The current Australian cannabis policy is clearly ineffective, serving to criminalise drug users rather than facilitate their treatment, and denying chronically ill Australians legal and affordable access to a drug that is proven to have countless health benefits. Change is happening, but the pace is slow – the time for drug policy reform is now.
- Australian Institute of Health and Welfare: Alcohol, tobacco and other drugs in Australia. https://www.aihw.gov.au/reports/alcohol/alcohol-tobacco-other-drugs-australia/contents/drug-types/cannabis
- ACT, Parliamentary Debates, Legislative Assembly, 25 September 2019 http://www.hansard.act.gov.au/hansard/2019/week11/3809.htm
- United Nations Development Programme, International Guidelines on Human Rights and Drug Policy (2019). https://www.undp.org/content/undp/en/home/librarypage/hiv-aids/international-guidelines-on-human-rights-and-drug-policy.html
- International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
- Australian Commission on Safety and Quality in Health Care, Australian Charter of Healthcare Rights (2nd ed, August 2019). https://www.safetyandquality.gov.au/australian-charter-healthcare-rights
National Criminal Justice Spokesperson
Australian Lawyers Alliance
This article appeared in the second issue of Medical Cannabis Network which is out now. Click here to get your free subscription today.