By Nicole Lee and Alison Ritter

Some of the greatest harms from using illicit drugs are because they are illegal. Illegal drug production is unregulated and many drugs are manufactured in backyard labs. Users cannot be sure what’s in them or how potent they are, so the risk of adverse reactions, including overdose and death, is high.

A large proportion of the work of the justice system – police, courts and prisons – is occupied with drug-related offences. Many people have a criminal record for possessing drugs intended for personal use, which can affect their work prospects. Drug busts have little impact on the availability of drugs and, as we continue to see more harms including overdoses and deaths, it is clear we need a new approach to illicit drugs.

This week, a parliamentary drug summit, convened by the Australian Parliamentary Group on Drug Policy and Law Reform, is debating drug policy reform in Australia. This includes the options for reform: depenalisation, decriminalisation and legalisation.

The options

There are many different legal frameworks governing the use and supply of drugs:

  • Full prohibition: drug use, possession and supply are criminal offences and result in a criminal record and sometimes prison sentence

  • Depenalisation: drug use and possession are still criminal offences but with lighter penalties (referral for assessment, education and/or treatment); drug supply remains a criminal offence

  • Decriminalisation: the removal of criminal penalties for drug use or possession. Illicit drugs remain illegal but criminal penalties are replaced with civil penalties (such as fines). People who use or possess drugs can still be charged, especially if they do not comply with paying the fine or attending the assessment. Drug supply remains a criminal offence

  • Legalisation: use of a drug is legal as is drug supply.

What legal frameworks apply in Australia?

In Australia, legislation is state-based. Different penalties apply to different drugs in different states.

South Australia, the ACT and Northern Territory have decriminalised cannabis by applying civil penalties, if a person meets certain eligibility criteria. All other states have no decriminalisation options for any illicit drugs. All Australian states have depenalisation systems in place for cannabis, through diversion to education, assessment or treatment for those who meet eligibility criteria. Non-attendance at education, assessment or treatment can still lead to criminal charges. All states, except NSW and Queensland, have depenalisation options for drugs other than cannabis.

How does decriminalisation affect drug supply and use?

Most research on decriminalisation is based on cannabis and has shown a number of consequences of decriminalisation. One negative effect of decriminialisation is net-widening: an increase in the number of people arrested or charged. The way decriminalisation is implemented can affect the extent of net-widening. On the other hand, several studies have shown that decriminalisation does not increase drug use among existing or new users. It reduces demand on, and the cost of, the criminal justice system.

Portugal decriminalised the use and possession of all illicit drugs in 2001. At the same time, it expanded investment in drug treatment, harm reduction and social reintegration. Impacts of this reform included a reduced burden on the criminal justice system, reductions in problematic drug use, reductions in drug-related HIV and AIDS, reductions in drug-related deaths, and reduced social costs of responding to drugs.

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