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Article by Lidija Bujanovic | Published September 1, 2011
On Friday 22 July 2011, Monash University’s Castan Centre for Human Rights Law Annual Conference was held in Melbourne. Dr Alex Wodak AM, President of the Australian Drug Law Reform Foundation and Director of the Alcohol and Drug Service at St Vincent’s Hospital in Sydney addressed the topic “A Human Rights Approach to Drugs”. Following the speech Right Now’s Lidija Bujanovic spoke with Dr Wodak about drug policy, the failure of current drug policy and the need for reform both internationally and in Australia.
RN: What drove you to form your views on drugs policy and law reform?
AW: The start for me was when I was working in St Vincent’s Hospital in the early 1980s and we realized that about 3500 gay men had become infected with HIV within 10 minutes walk from the hospital. Here lived the largest concentration of gay men in the country and the same neighborhood has the largest population of injecting drug users in the country. I figured that if 3500 gay men had become infected, some of those men would be injecting drugs, some of those who injected drugs would share needles with non-gay men and women. And some of these non-gay injecting drug users who had HIV would then have sex with non-drug injecting men and women. So I could just see this cascade of HIV going out to the wider population. How could it be stopped?
The first needle syringe programme was started in Amsterdam. I knew we needed something like that here, that my arguments were very compelling and that the arguments against a needle syringe programme were very weak. Yet I couldn’t get permission to start a needle exchange programme. I wrote 13 submissions to the NSW Department of Health seeking permission to start a pilot and each submission was either rejected or ignored.
I went through purgatory: I knew I was right. Yet my colleagues and I ended up having to commit civil disobedience to make it happen. Here was a real need to prevent a health, social and economic catastrophe and I wanted to do something which clearly was logical.
I then started reading about the history of drug prohibition and realized the evidence of it working didn’t exist. My ideas crystallized over time through a long process of research. I started that needle exchange on 12 November 1986 and trying to convince people we must reform our drug laws is now a big part of my work. When I first started saying what I now say, 25 years ago, I was vilified for it. I’m still criticized for supporting drug law reform but most people these days tend to agree.
So how do you react when government claims its policy is evidence based?
Well, I challenge it, tooth and nail, line by line. I point out what they’re saying is nonsense and what they say privately is different to what they say publically. It’s interesting when you look at the kinds of comments made in private or in confidential documents that somehow emerge into public view, compared to comments made during election campaigns. It is a very difficult issue for politicians to openly and honestly deliberate about.
I point out what [the government is] saying is nonsense and what they say privately is different to what they say publically.
Does the current system hinder the realization of certain human rights? In your presentation you mention freedom of association, to health care, equality rights…
The list goes on and on and I’m not really well placed to give an analysis of the exact infringements of rights due to drug laws. Whenever I looked as a layman at the different definitions I felt that most of the criteria used to define human were significantly breached. These are major and significant breaches. For the first time ever in 2009 or 2010 there was international consideration of the human rights of injecting drug users in the UN.
Is this filtering through to Australia?
A process has started that is now irreversible and will one day creep into Australia.
What about the recent frenzy that saw most states hurriedly legislate on ‘Kronic’? Was this a step back for reform?
This example is typical of the whole process. I have seen minutes from a meeting where New Zealand considered whether it should introduce penalties for Kronic and they said quite clearly “we don’t have enough information about the substance and do not know if it has any adverse effects”. That was in November 2010. They decided not to make a judgment about Kronic until they had adequate information’. But New South Wales, Victoria, South Australia and Western Australia have all passed legislation.
Now the maximum sentence in Western Australia is a 20-year jail sentence or a $100,000 fine for sale or possession. In South Australia the maximum penalty is $10,000 and 2 years jail. How can you have a tenfold variation in the maximum sentence? The information available about Kronic hasn’t changed eight months after New Zealand said it didn’t have enough information, and yet several states in Australia moved to legislate very quickly.
Does the inconsistency suggest that it was just a knee jerk reaction on behalf of the states? And one lacking in collaboration?
Lawyers talk about two kinds of criminal laws. Mala in se laws, such as murder and rape, refer to crimes which are bad in themselves. These tend to have consistent and uncontroversial sentences for crimes. In contrast, mala prohibita laws refer to activities which are considered bad because they have been prohibited or proscribed. This covers things like homosexuality, prostitution, and drug use, and are generally consensual acts between adults, generally controversial and with huge variations over time and between jurisdictions.
Because they are consensual it is hard to get witnesses so when the police want to charge someone there is often a bending of the laws or blatant corruption. This is why there is such inconsistency between the states regarding mala prohibita laws.
The 1997 Royal Commission into the New South Wales Police Service found a very close nexus between police corruption and the attempt to enforce prohibition on the sex trade. Legalization of sex work came out of this. Regulating the sex trade – about 70 per cent of the NSW sex trade is now regulated – has meant that sexually transmitted infections (STIs) are very rare among sex workers and this is beneficial for them and also for their clients and the wives and girlfriends of the clients. So it’s good for the community. The NSW government elected in March 2011 however, decided that they will introduce ‘tough regulation’ which could end up being criminalization. This risks going back to rampant police corruption and STIs amongst sex workers, spreading to the wider community.
…and the same logic can be applied to drugs?
Exactly, all these things are really similar. HIV caused us to wake up and realize that we had to take drug use seriously. There was a big debate in Australia and fortunately the pragmatists won and not the moral crusaders – had the moral crusaders won then no doubt we would have the kinds of HIV levels that are found in the United States.
In practical terms, what would a human rights based approach look like if applied to the drug issue?
We start recognizing that drug users are our brothers and sisters, our daughters and sons, our mothers and fathers, whether we know they are using or not. For that reason in the Netherlands the term they often use for drug users is ‘Dutch citizens who use drugs’ which is a pertinent reminder of the fact that they are still Dutch citizens. This term is used in policy statements. The Dutch are pragmatists and realize that it is always better to regulate the practice that the majority may not like but cannot stamp out. Whether it be gambling, prostitution etc. – if you can’t eradicate it then let it happen but with regulation.
In the Netherlands the term they often use for drug users is ‘Dutch citizens who use drugs’ which is a pertinent reminder of the fact that they are still Dutch citizens.
You mentioned an irreversible process has been started in the sphere of drug law reform. Could you outline what you think the major changes have been recently?
There are two major initiatives that show a change in attitudes internationally. The UN Global Commission on HIV and the Law, which came about from a statement U.N. Secretary General Ban Ki-Moon made in 2009. The chairman is Fernando Henrique Cardoso, the former president of Brazil, who also chairs the second initiative, the Global Commission on Drug Policy that met in New York on 2 June 2011.
It is very gratifying that public opinion is clearly changing. If you look at the 1969-2010 Gallup poll in the USA on the Legalization of Marihuana it is particularly revealing. Opposition is dropping and support is increasing. The lines will soon cross. The US now has 16 states (plus Washington DC) providing medical marijuana. It is a $1 billion dollar industry in California alone.
Is Australia represented on both?
No. Australia is represented on the Global Commission on HIV and the Law, but it’s clear that the two have a lot of overlap. We’re seeing quite a shift around the world. When the Global Commission on Drug Policy released their policy documents in June 2011 there was a wave of publicity, particularly in the US.
Why do you think the Australian media didn’t cover it?
It’s a good question. The Howard Government made drug law reform much harder in Australia and that hasn’t changed yet. They were very effective at changing many debates in a long standing way and were very strategic in their approach. It became much harder to argue for drug law reform. We changed the government in 2007 but we didn’t change many of the key ideas.
It’s almost as though the Howard government did such a good job at instilling a certain idea in public discourse that it is really hard to put it back…
They shifted the centre of gravity and that is really hard to deal with in Australia. However, internationally there have been some amazing changes. After a terrible epidemic of HIV and drug related deaths, Portugal introduced a new law on 1 July 2001 that decriminalized drug use. While still a criminal offence to carry more then 10 days supply of any drug, if you are found with less than that amount you go to a ‘Commission of Dissuasions’. You are interviewed and assessed by a social worker, lawyer and a psychologist. They can impose sanctions if need be but generally if you are coping there is no punishment. It functions through a health and social perspective, not a legal one.
In January, Norway sent a delegation to see what they were doing in Portugal. One of the reasons for the interest is sovereign debt as governments look at where they can cut spending. I’m not against raising taxes but I want the money our government spends to be used efficiently.
This approach is mindful of the need to minimise harm.
Your response is typical of people of your generation, where drugs are illegal but very easy to get and widely used. For my generation it was different and for Howard’s generation even more so. Older generations can’t accept that some forms of illicit drug use are now considered normal by young people.
Yes, I assume drugs are just readily available; the use of illicit drugs and misuse of legal ones.
Yes, what we are talking about is partly a generational issue. Older people are more likely to support a tougher drugs policy whereas to the younger generation that is just nonsense – many have used drugs and many of their friends have. Such admissions even come from some high-level politicians.
One of the real problems especially for young people is the blatant hypocrisy. Here are these middle-aged leaders, pointing their finger at younger people saying they can’t use the same drugs that these politicians used when they were young. If you want young people to respect the laws then you want laws to make sense. The US Declaration of Independence reminds us that laws that are only sustainable if they have the consent of the governed. Once people lose respect for a law then it becomes impossible to police, so why maintain it on the statute books?
There have been numerous commissions, including the Federal Costigan Royal Commission 1980, the Fitzgerald Inquiry 1987–1989, the Wood Royal Commission 1997 and the WA Police Royal Commission 2002–2004, or even the prosecution for corruption of former NSW chief magistrate Murray Farquhar. These examples show rampant police corruption in the face of trying to enforce drug laws. This makes it more than just a health or social matter. To paraphrase Tony Blair, we should be tough on police corruption and tough on the causes of police corruption.
With rare exceptions prohibition does not work. It only works if the drug of choice is only liked by a very small number of people, if it is difficult to cultivate, produce or smuggle, and thirdly if the substitute drug is less harmful than the prohibited drug. I think the world is slowly coming around to a more pragmatic approach. Understanding costs and benefits is a much better approach than saying it ‘sends the wrong message’ or ‘this offends me therefore we should have a law against it’. Where costs exceed benefits we should not pursue that policy.
To paraphrase Tony Blair, we should be tough on police corruption and tough on the causes of police corruption.
Does evidence show an increase in use or harmful effects?
There is no simple answer. One study in the American Journal of Public Health comparing Amsterdam and San Francisco showed the prevalence of illicit drug use to be higher in San Francisco where there was a more punitive environment. Also 51 per cent of participants in San Francisco, compared to 17 per cent in Amsterdam, said that the last time they bought cannabis they were also offered other drugs (such as heroin or cocaine). Amsterdam has tried to separate the markets for cannabis from other drugs. If ‘coffee shops’ are found to be selling anything other than cannabis their licenses are revoked and the shop is closed down that night without appeal.
Does this take away from the idea that cannabis is a gateway drug and those who use it will inevitably end up using everything else?
On the contrary, it shows that the reason it is a gateway drug under drug prohibition is because your dealer also sells heroin and other drugs. Studies also show that cannabis use is much more related to earlier alcohol and tobacco use (than later use of heroin), and it is alcohol and tobacco that cause most deaths. Yet few are interested in the nexus between cannabis and alcohol and tobacco, rather the more tenuous connection with illicit drugs.
So how should Australia effectively respond to drugs?
We should be making primarily a health and social response. I say ‘primarily’ because there should always be some law enforcement; if there was a tanker full of heroin coming to our ports I like to think something would be done about that.
But this is also about gross inequalities in our communities. Australia is a much more unequal county compared to countries in Scandinavia, or Japan that have lower levels of drug use. Generally the more unequal the country the higher the levels of drug use.
From a social perspective, we should do everything we can to keep people who use illicit drugs integrated in the community, and if they fall out then we should help them reintegrate. One of the most helpful things we can do is encourage them to get a decent education and some training and help them gain meaningful employment that will maintain their self-respect.
Generally the more unequal the country the higher the levels of drug use.
From a health perspective, let’s say it was your sister with the drug problem and she really wanted to stop. Every relative would want her to go to a counselor or health professional rather than be picked up by the police. The criminal justice system is stigmatizing, if your sister was to go to jail the stigma will always hang over her… when finding a boyfriend, getting a job, renting a place. Making sure people are not irretrievably damaged is very important.
And this is the basic argument for harm reduction?
Indeed. A study was done comparing South Australia, which had just decriminalized cannabis, to Western Australia, where there were draconian penalties. The WA group were much more likely to have lost a job, accommodation or relationship. They were alienated and very angry. The SA group was much less likely to be in this position. The WA police were horrified and a WA Labor government then altered their policy. The current Barnett government has just gone back to draconian penalties, even though cannabis use has been in decline.
It is also important to remember that money spent on prosecuting cannabis offenders is money that’s not available for prosecuting rapists, murders and perpetrators of violent crime. My view is that the police have an important role to play and I’d much rather they were solving violent crimes than doing a job in which they can never succeed, regarding illegal drugs.
The ‘evil people’ idea has gone well politically but comprehensively failed as a policy.
I think you will see this evolving in your lifetime and when you are double your current age things will be very different. Your generation has a very different attitude. Society has a choice between looking at this as evil people using drugs or as a systemic issue that is much more involved. The ‘evil people’ idea has gone well politically but comprehensively failed as a policy. The notion that drug users are overwhelming socially and economically disadvantaged people says the real problem is the policy markers who persist with policies when the evidence is that the policy does not work. The policy makers are often making bad decisions that have unintended but very negative consequences.