Drug Thresholds

Work on developing a Model Criminal Code – Serious Drug Offences was undertaken in the 1990s with the aim of creating consistency across Australian jurisdictions on trafficable, commercial and large commercial drug offences, whilst acknowledging the need for legislative variation for measures directed at controlling use and minimising harm to drug users. The Model Criminal Code Officers Committee (MCCOC) wrote that:

“The serious drug crimes proposed in Model Criminal Code are primarily directed at commercial traffickers, manufacturers and growers. There is no doubt that the offences will also catch some individuals whose activities are motivated by the exigencies associated with drug use rather than by the desire for profit. The diversity of views expressed in submissions to the Committee makes it apparent that any attempt to set legislative distinctions between commercial drug crime and activities associated with illicit consumption will be contentious. Even if that were not so, the need for common sense and humanity in marginal applications of trafficking legislation is unavoidable. It is well known that a significant proportion of dependent users of heroin engage in criminal activity to sustain the costs of use. Those who deal in drugs will be guilty of the trafficking offences proposed by the Committee. Prohibitions which draw no distinctions between those who deal for profit and those who do so to sustain dependence require the exercise of discretion in enforcement of the law and imposition of punishment for breach” (pp. 1-2).

In the ACT, consideration was given as to whether or not the model drug schedules should be adopted into the ACT Criminal Code Regulation 2005.

In 2011, the Australian Government Attorney-General’s Department conducted a consultation on the“Implementation of model schedules for Commonwealth serious drug offences”. In ATODA’s submission, we:

• Expressed concern that the model controlled drug schedule may not be able to be incorporated in the ACT, due to the amounts for trafficable, commercial and large commercial quantities not being evidence based; and
• Recommended that the Attorney Generalʼs Department take into account the findings from the Justice and Community Safety Directorate-commissioned project, ACT schedule for serious drug offences: Determining amounts for trafficable, commercial and large commercial drug offences, by the Drug Policy Modelling Program to ensure that decisions are based on the latest evidence.

In 2010, the ACT Government engaged the Drug Policy Modelling Program to provide expert advice on determining amounts for trafficable, commercial and large commercial drug offences.

The project aimed to determine whether existing ACT legal thresholds for drug offences made sense in terms of the commercial realities of the drug market and, if not, to propose alternate threshold quantities for the five main illicit drug types: heroin, methamphetamine, cocaine, ecstasy and cannabis.

Through this project, five new metrics were developed and applied to evaluate the design of drug trafficking thresholds, using Australian and international research evidence on drug user behaviour and drug markets.

Application to the ACT showed that the current thresholds created risks of unjustified punishment of users as traffickers and that, by virtue of their lower values, the proposed Model Criminal Code thresholds, if adopted, would pose greater risks.

For further information about the project see:

• Hughes, C. & Ritter, A. (in press). Legal thresholds for serious drug offences: Expert advice to the ACT on determining amounts for trafficable, commercial and large commercial drug offences. DPMP Monograph Series No. 22. National Drug and Alcohol Research Centre: Sydney.

Additionally, a process of consultation was undertaken with people who use illicit drugs in the ACT to gain a better understanding of the amounts they consume, purchase and are likely to possess so as to better inform this body of work. ATODA and the Canberra Alliance for Harm Minimisation and Advocacy supported this process by recruiting and interviewing drug users to provide data to Social Research and Evaluation for analysis and comparison.

ATODA congratulates the Attorney-General Simon Corbell MLA, and the ACT Government, for the evidence-based reforms to legal thresholds for heroin, methamphetamine, cocaine and MDMA (ecstasy).

Drug trafficking is a very serious offence which attracts heavy penalties. The ACT legal system correctly recognises that drug traffickers should receive heavier penalties than drug users. Up to now, however, the laws were not effective in differentiating between drug traffickers and people who possess illicit drugs for their personal use.

Legal thresholds set a total weight limit for a drug. Possession under that threshold weight is assumed to be for personal use and above it for trafficking.

The ACT thresholds for MDMA and cocaine had been set too low, putting Canberrans possessing small quantities of these drugs simply for personal use at risk of being charged with trafficking. Meanwhile, the thresholds for heroin and methamphetamine needed to be reduced to ensure that drug traffickers were not being treated simply as drug users. No change has been made to the thresholds for cannabis.

The new thresholds more closely align with drug use and purchasing patterns in the ACT. They also give the police, the prosecution, the judiciary, people who use illicit drugs, and the public greater confidence that the penalties match the seriousness of the offences.

The new thresholds enable a more rapid, just, equitable and evidence-based response to people who commit drug offences in the ACT.

ATODA further commends the ACT Government for:

• Its leadership, through the Justice and Community Safety Directorate in partnership with ACT Health;
• Consulting with people who are drug users in the ACT; and
• Seeking and actioning expert advice from the Drug Policy Modelling Program that the previous legal thresholds were not proportional to the seriousness of drug trafficking offences.

For further information about the evidence base upon which these changes were made see:

• Hughes, C., Ritter, A., Cowdery, N. and Phillips, B. (2014). Australian threshold quantities for ‘drug trafficking’: Are they placing drug users at risk of unjustified sanction? Trends and Issues in Crime and Criminal Justice. Australian Institute of Criminology: Canberra.

ATODA also commends the Drug Policy Modelling Program for their high quality research, translation into policy and the collaborative ways in which they work, including with consumers, peak bodies and government.

These developments are another important ACT example of how the community benefits when research, policy, practice and consumers collaborate to solve complex problems. Being based on the research evidence, it is a model that others could follow about how to engage in drug law reform.

While ATODA commends the ACT Government for the thresholds component of the legislation, ATODA continues to oppose their link to ‘deemed supply’ laws.

People charged with drug offences should be considered innocent until found guilty by the courts. Under the existing laws, drug users possessing amounts of drugs above the thresholds have to prove to the courts that the drugs were for their personal use, rather than the prosecution having to prove that the person was a trafficker (‘deemed supply’).

Attaching ‘deemed supply’ to drug thresholds is a particularly unusual approach and one not found in most other drug trafficking threshold systems internationally, where ‘deemed supply’ laws are explicitly avoided on human rights grounds. ‘Deemed supply’ is not used in Queensland.

Further, ‘deemed supply’ laws:

• Conflict with the standard criminal justice principles of the presumption of innocence and the burden of proof being placed on the prosecution rather than on the defendant; and
• Increase the capacity for harm to ACT drug users through incorrectly treating them as if they were traffickers.

Abolishing ‘deemed supply’ laws would bring drug trafficking offences into closer alignment with other serious offences. It would also be much less concerning if a drug user exceeded the trafficable amount as the prosecutor would be required to find evidence of trafficking (e.g. scales, multiple bags, sums of money) or lay possession charges for personal use.

For further information see:

• Hughes, C., Ritter, A., Cowdery, N., Phillips, B. (2014). Evaluating Australian drug trafficking thresholds: Proportionate, equitable and just? : Report to the Criminology Research Advisory Council. Criminology Research Advisory Council: Canberra.
• Hughes, C., Ritter, A. & Cowdery, N., (2014). ‘Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia’, The International Journal on Drug Policy, online ahead of print.
• Hughes, C., & Cowdery, N. (2013). Deemed supply in Australian drug trafficking laws. DPMP Research Symposium, Canberra.

Removing the ‘deemed supply’ provisions represents an important future opportunity for drug law reform in the ACT.

New Psychoactive Substances (NPS) are substances that seek to mimic the effects of drugs such as cannabis, ecstasy, cocaine, amphetamines or LSD. Products like Kronic, Bath Salts and N-Bomb are examples. ATODA notes that seek to mimic does not mean they have the same effects as the drugs listed, with users reporting that the effects can be significantly different.

NPS may be known to as “synthetic drugs”, “legal highs”, “herbal highs”, etc., which are not preferred terms. NPS is the term preferred by the United Nations Office on Drugs and Crime for substances that may pose a risk to public health but are not scheduled by the 1961 Single Convention on Narcotic Drugs or the 1971 Convention on Psychotropic Substances, as amended.

The new ACT legislation included banning 44 individual chemicals as a response to NPS. Australian governments have banned chemicals (or groups of them) on the basis that they are unknown and likely to cause harm. Unfortunately, banning individual chemicals does not appear to meaningfully change the availability of emerging drugs as the manufacturers can evade the ban by modifying a banned chemical, and thereby create a new one. This means that, each time a chemical is banned, a new drug, which we know even less about, potentially replaces it.

Furthermore, since these chemicals are new we have little or no research available covering their effects on health (including toxicity) from either short term or long term use. As a result, they are all treated as if they are highly dangerous substances. The thresholds that have been set between possession for personal use and possession for trafficking purposes have no basis in evidence. They are arbitrarily set as equivalent to the familiar illicit drugs that legislators assume (again without sound evidence) they mimic. In ATODA’s view, this is not a sound way to implement public policy and has real potential for unintended (though foreseeable) adverse consequences.

NPS represent one of Australia’s biggest drug policy challenges. We need to ensure that our approach to emerging drugs is consistent with that of other drugs, including legislating on the basis of their relative harm potentials and expanding drug diversion programs to include the users of NPSs.

For further information see:

• Munro, G. & Wilkins, C. (2014). New Psychoactive Drugs: No Easy Answer. PolicyTalk 9^thEdition. Australian Drug Foundation: Melbourne.
• Network of Alcohol and other Drug Agencies. (2014). Discussion Paper: New and Emerging Psychoactive Substances. NADA: Sydney.
• Network of Alcohol and other Drugs Agencies. (2014). New and emerging psychoactive substances: How to reduce the harms? NADA Advocate. NADA: Sydney.
• Bright, S. (2013). New and Emerging Drugs. Prevention Research. Australian Drug Foundation: Melbourne.
• Wilkins, C, Sheridan, J, Adams, P, Russell, B, Ram, S & Newcombe, D 2013, ‘The new psychoactive substances regime in New Zealand: a different approach to regulation’, Journal of Psychopharmacology, vol. 27, no. 7, pp. 584-9.

At ATODA’s conference later this year, research on emerging drugs will be presented to support innovative, evidence-informed ACT policy responses.

New drug regulations to better target traffickers
ACT Government Media Release, 10 April 2014
“The amounts ensure that serious drug offences target people who buy and sell illicit drugs to make a profit rather than people who buy drugs for personal use…. The Government has taken expert advice on determining the drug weights are indicative of trafficking rather than personal use. The changes are vitally important so that law enforcement, and the serious penalties available (which extend up to life imprisonment), are directed to trafficking while making sure that personal drug use is not caught up in the net of the ACT’s serious drug offences.” Said Attorney General Simon Corbell MLA.
For more information: See the media release

Don’t confuse a drug user with a drug trafficker: New evidence-based ACT drug threshold laws
ATODA Media Release, 10 April 2014
“The new thresholds more closely align with ACT drug use and purchasing patterns. They also give the police, the prosecution, the judiciary and the public greater confidence that the penalties match the seriousness of the offences,” Ms Fowlie said.
For more information: See the media release 

New ACT regulations to target synthetic drugs and traffickers
The Canberra Times, 10 April 2014
”The amounts ensure that serious drug offences target people who buy and sell illicit drugs to make a profit rather than people who buy drugs for personal use,” Mr Corbell said.
For more information: See the article

New ACT drug regulations ‘to better target traffickers’
ABC News Canberra, 10 April 2014
The ACT Government says changes to what is considered to be a trafficable quantity of illegal drugs will help police better target traffickers. Attorney-General Simon Corbell says the changes will mean fairer outcomes in the courts.
For more information: See the article

Smaller amounts of drugs to be considered trafficable, more drugs to be illegal
Canberra City News, 10 April 2014
Simon Corbell has announced he’s made regulations to make possession of smaller quantities of drugs a serious offence and to outlaw a raft of substances not previously illegal.
For more information: See the article

New ACT drug regulations ‘to better target traffickers’
ABC TV News ACT, 11 April 2014
The ACT Government has changed what is considered to be a trafficable quantity of illegal drugs and broadened the ban on synthetic drugs.
For more information: See the news story

Drug law proposals ‘outdated’
The Canberra Times, 11 April 2014
Proposed reforms to the ACT’s drug laws have received a mixed response, with new bans on synthetic cannabis described as ”outdated” but changes to trafficking quantities declared ”just, equitable and evidence-based”.
For more information: See the article