A Brief Glimpse into Addiction and the Law in Victoria

Written by Gabriella Kazenbroot-Phillips

 

Recently, I attended a seminar on ‘Addiction and the Law,’ where Professor of Addiction Studies and Services at Monash University, Dan Lubman, discussed the public misconceptions surrounding addiction. Having watched SBS’s documentary series Addicted Australia; it led me to consider whether or not drugs should be decriminalised, and whether Victoria’s approach to addressing addiction is sufficient. This piece contends that decriminalisation is indeed a proven method to reduce the harms of addiction, and that Victoria could benefit from it.


It is important to note that not all drug users are addicted, and not all drug-related offences are caused by addicts. Addiction is a chronic health condition whereby someone, regardless of the negative physical or psychological consequences, cannot stop using a drug or activity. [1] It can be distinguished from a mere bad habit through the concept of compulsion. [2] If one persists in using a drug, irrespective of a desire to stop, and the disastrous social, legal and medical consequences, it must be inferred that the person is acting via compulsion, and not due to a lack of willpower. [3] In Australia, 1 in 5 people will suffer from an alcohol, drug or gambling disorder, [4] yet due to the overwhelming stigma and barriers to accessing care, most will not seek professional health.


Current Issues


In Victoria, drug usage and possession is illegal, and penalties for a summary offence include up to two years imprisonment, fines, community corrections orders, as well as drug treatment orders. [5] Victoria also has drug courts, which seek to use therapeutic jurisprudence to reduce drug-related offences. [6] While these courts theoretically reduce recidivism, and include a treatment and supervision program, they assist addicts only once they have been convicted of a crime.


Perhaps, addiction should not be viewed as a conscious choice, but rather perceived similar to any other chronic health condition. By removing the blame from the addict, it removes the need to reprimand the addict, and instead creates a means for rehabilitation. Indeed, in the case of Mardsen v HREOC, the Federal Court found that a dependence on opioids is a disability. [7] Despite this ruling, many challenges remain.


At the seminar I attended, one of the speakers was a recovered addict. He discussed difficulties in obtaining custody and visitation rights to his child, and described the excruciating forced withdrawal from opiates that took place in police custody. These anecdotal stories suggest that despite opioid addiction being classed as a disability, the law still possesses many unfair and difficult challenges. It is wrong to assume that an addict is an inherently bad person who lacks moral consciousness and disregards their health and wellbeing. As seen in Addicted Australia, the addict is often the one who suffers most.


Solutions


In order to address the challenges faced by addicts, the legal system should be less concerned with their punishment, but rather more focused on how to reduce the barriers to treatment. Currently, these barriers include the stigma and shame associated with addiction and the lack of accessibility to help.


Medically Supervised Injecting Centre (MSIC):

One way in which Victoria assists its most vulnerable addicts is through MSICs. MSICs save lives by providing supervision for drug users, preventing overdoses, as well as providing access to health services such as drug treatments and blood testing. [8] In 2018, Victoria opened its first MSIC in North Richmond, 32 years after the first ever MSIC was opened in Switzerland, [9] with the aim of reducing health issues arising from drug use. It is estimated that during the 18-month trial period, 21 to 27 lives were saved, with staff providing 10,540 services in addition to supervising injections. [10] Despite the community witnessing a decrease in public injecting and better access to education and support, [11] public hesitation remains, with some members of the community unhappy about attracting drug users from other neighbourhoods. Nonetheless, a second site is planned to open at Flinders Street, which when opened, would bring the number of MISCs in Australia to three. [12] However, compared to Canada’s 20 safe injecting sites, this is a trivial figure (though a larger population exists). [13] Thus, it seems Australia still has a long way to go.


Decriminalisation: An Alternative Approach

It is important to note that decriminalisation is distinct from legalisation. At face value, the notion of decriminalisation of drugs is radical, given the antisocial behaviour and negative consequences which can arise from drug usage. But, when viewing addiction to be the chronic health disorder that it is, and not a conscious choice, decriminalisation is a logical solution. It does not make sense to punish someone for a disability which is out of their control.


A successful example of the decriminalisation of drugs took place in Portugal. In the 1980s, one in every 100 Portuguese people was addicted to heroin. [14] Addiction was rampant, in both the lower and upper classes. [15] In the 1990s, a judge, Rui Pereira, realised that incarcerating people for drug usage was immoral and counterproductive. [16] In response, Portugal decriminalised possession and consumption of illicit substances in 2001, aiming for a health-led approach. [17] This meant that drug possession and usage no longer bore a criminal record. Instead of imprisonment, penalties such as fines or community service are applied. [18] Portugal’s take on drug policy is founded on the notion that the issue is an individual’s unhealthy and compulsive relationship with an illicit substance. [19] Following the reform, drug death rates in Portugal began to decrease, while they increased across Europe during the same timeframe. [20]


Evidently, in order to reduce the harm faced by the most vulnerable, Victoria must adopt ideologies similar to Portugal, such as the notion that the eradication of drugs is impossible, and that the aim should be to mend an addict’s unhealthy relationship with drugs. [21] Ultimately, what needs to change in Australia is the dialogue surrounding addiction. A cultural shift in society whereby drug addicts are not considered nuisances, or dangers to society, but rather as vulnerable people suffering from addiction disorders. People who start to use drugs, often do so to escape underlying issues in their lives. It would be naïve to assume that decriminalisation would not be without its own set of challenges, but a harm reduction centred approach would be beneficial for those most at risk. The societal perception of drug users should be changed by using empathetic language, and raising awareness that addiction is indeed, not a choice. As societal values change, so will the law to reflect them.


 

References

[1] ‘What is addiction?’, Turning Point (Webpage) <https://www.turningpoint.org.au/treatment/about-addiction/what-is-addiction>. (‘Turning Point’).

[2] Stephen J Morse, ‘Addiction, Choice and Criminal Law’ (2017), Faculty Scholarship at Penn Law, 3[1].

[3] Ibid 3[2].

[4] Turning Point (n1) [1]14.

[5] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 36B(2), s73.

[6] ‘Drug Court’, Magistrates Court of Victoria (Webpage) <https://www.mcv.vic.gov.au/about_us/drug-court>.

[7] Mardsen v HREOC & Coffs Harbour & District Ex-Servicemen & Womens’s Memorial Club Ltd [2000] FCA 1619.

[8] ‘Medically Supervised Injecting Room’, North Richmond Community Health (Webpage, 2022) 1 <https://nrch.com.au/services/medically-supervised-injecting-room/>.

[9] ‘A story of harm minimisation’, Uniting (Webpage) <https://www.uniting.org/community-impact/uniting-medically-supervised-injecting-centre--msic/history-of-uniting-msic>.

[10] Department of Health and Human Services, ‘Medically supervised injecting room trial Review panel summary’(Report, June 2020) 3.

[11] ‘Medically supervised injecting centres save lives’, Alcohol and Drug Foundation (Webpage, June 22 2020) <https://adf.org.au/insights/medically-supervised-injecting-centres/>.

[12] ‘Second Supervised Injecting Room - City of Melbourne’, Department of Health (Webpage) <https://www.health.vic.gov.au/aod-treatment-services/second-supervised-injecting-room-city-of-melbourne>.

[13] ‘Canada’s response to the opioid overdose crisis’ , Government of Canada (Interactive Map, 2022). <https://health.canada.ca/en/health-canada/services/drugs-medication/opioids/responding-canada-opioid-crisis/map.html>.

[14] ‘Drug Decriminalisation in Portugal: Setting the Record Straight’, ‘TRANSFORM: Drug Policy Foundation’ (Blog, 13th May 2021) <https://transformdrugs.org/blog/drug-decriminalisation-in-portugal-setting-the-record-straight> (‘Decriminalisation’)

[15] Ibid.

[16] Susana Ferreira, ‘Portugal’s radical drugs policy is working. Why hasn’t the world copied it?’ (5 December 2017) The Guardian 1. (‘Radical Drugs Policy’)

[17] Decriminalisation (n 13).

[18] Ibid.

[19] Radical Drugs Policy ( n 15).

[20] Ibid.

[21] Ibid.


 

Gabriella Kazenbroot-Phillips is a second-year student studying Law and Commerce. Gabriella is currently taking part in the Just Leadership Program at Monash, which provides a fantastic opportunity to learn about inequalities faced by marginalised communities. Gabriella is passionate about social justice and seek to further understand ways in which the law can be used to incite positive change within the community.

















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