Drugs and the law - Hot Topics 59 - Find Legal Answers

More documents

Recommendations

Info

The counter argument is that making some drugs illegaland yet allowing demonstrably harmful drugs liketobacco and alcohol to be freely available to adults ishypocritical and undermines respect for the law and othersocial institutions. Forcing up the price of drugs doesnot prevent people using drugs, but it might encouragepeople to commit property crimes, or to engage in drugsupply offences, to obtain the necessary funds.The enforcement of laws criminalising drug use cancontribute to risk taking behaviours – for example,injecting drugs alone, or consuming party drugs all atonce to avoid sniffer dog detection.There is a good deal of evidence to suggest that there is alink between illicit drug use and property crime, but theevidence is less strong in proving that drug use actuallycauses property crime. It may be that people who commitproperty crime are more likely to be drug users, so thatdrug use is not a cause. But it is clear that at least somedrug-dependent people commit very large numbers ofproperty crimes.Similarly, there is a good deal of evidence to suggesta connection between cannabis use by teenagers andpsychosis, but the evidence is less strong that cannabisactually causes psychosis. Most studies cannot rule outother drug use (especially amphetamines) as a potentialcause of mental health problems, and it may be thatpeople with mental health problems are more likelythan others to use cannabis (so that the cannabis useis a feature, but not a cause). It is interesting that thenational prevalence of psychosis in young people has notincreased over the last twenty years, despite significantincrease in cannabis use by young people.The drugs policy debate is one in which most argumentscan be supported by evidence from a study somewhereor an experience in one country or another. It can beargued that prohibition causes drug crime and preventsdrug crime; that it discourages drug use or that itencourages harmful drug use; it complements efforts atdrug rehabilitation or it draws valuable resources awayfrom treatment programs.The debate about the relative merits of these broadpolicy positions is not likely to end soon. However, it islikely that we will continue to see a variety of new lawsand measures introduced – at times prohibitionist andat times harm reductionist – in an ongoing attempt toaddress the social consequences of drug use.discriMinaTiOn againsTdrug usersThe social stigma attached to illicit drug use meansthat people who are identified as drug users canexperience discriminatory treatment such as denial ofservices or accommodation.is drug addiction a disability?Under both NSW and federal anti-discriminationlaws, it is unlawful to discriminate against a person onthe grounds of disability. Over a number of years, ithad been frequently suggested that drug dependencewas a form of disability, and therefore covered by thediscrimination laws, but there was no case decidingthe point.Drug addiction and federal lawIn Marsden v HREOC and Coffs Harbour RSL [2000]FCA 1619, a man was refused alcohol service at a club,and later expelled from club membership, because hewas on a methadone program. He made a complaintof disability discrimination to the Human Rights andEqual Opportunity Commission (HREOC). Thecommission conducted an inquiry and concludedthere had been no disability discrimination. Marsdenappealed to the Federal Court, which decided thatdrug addiction could be classed as a disability forthe purposes of the relevant federal legislation (theDisability Discrimination Act 1992).amendments to nsW lawIn response to the Marsden decision, the NSW Government amended the NSW law (the Anti-Discrimination Act 1977) to legally allow discrimination against a person on the grounds of addiction to a prohibited drug – but only in employment. Discrimination remains unlawful in other fields, including:> providing goods and services> education> accommodation.The NSW Act does not allow discrimination: > against users of methadone or buprenorphine> on the grounds of being hepatitis C or HIV positive, or having any other medical condition.So, if a person is refused a job because they areon a methadone or buprenorphine program or areseropositive, they could make a claim for disabilitydiscrimination under the NSW Act.history of drug laws 5
Drug laws inNSW WHaT are illegal drugs?In NSW, it is an offence to possess, use, produce orsupply a drug which has been declared prohibited. Mostdrug charges in NSW are laid under the Drug Misuse andTrafficking Act 1985. The Commonwealth Customs Act1901 covers offences involving importing and exportingdrugs.THe drug Misuse and TraffickingacT 1985The NSW Drug Misuse and Trafficking Act 1985classifies a wide range of drugs as ‘prohibited drugs’ (and‘prohibited plants’ in the case of cannabis, opium andcoca). The Act creates offences for:> use of prohibited drugs> possession of prohibited drugs> supply and trafficking of prohibited drugs (with theseriousness of the offence depending on the quantitiesinvolved)> cultivation and possession of prohibited plants> manufacture of prohibited drugs> aiding and abetting and taking part in offencesinvolving prohibited drugs or plants> possession of drug-use implements.Specific offences are covered in more detail from pp 816.The drugs covered by the Act are listed in a schedule.They include the common street drugs – cannabis(marijuana), heroin, ecstasy, amphetamines, LSD,cocaine, methadone – and many others.THe cusTOMs acTThe Customs Act 1901 is a federal law that aims, amongother things, to prevent the import and export ofprohibited drugs. The range of drugs (listed in a scheduleto the Act) is similar to that in the Drug Misuse andTrafficking Act.Customs Act offences include dealing with importeddrugs after they have been brought into the country.cOnfiscaTing prOceeds Of criMeThere is both NSW and federal legislation that canbe used to seize assets obtained through serious drugoffences, and other offences. Some of these laws applyonly after a person is convicted of an offence. Some applywithout a conviction, or even without a criminal chargebeing laid.These confiscation laws do not apply to minor drugoffences, such as use and possession, or small-scaledealing.The Acts that come into operation after conviction are:> the Confiscation of Proceeds of Crime Act 1989 (NSW)> the Proceeds of Crime Act 1987 (Cth).The Acts that apply regardless of criminal conviction are: > the Criminal Assets Recovery Act 1990 (NSW)> the Customs Act 1901 (Cth), sections 229A and 243B. how cases proceedCases run under these laws are civil, not criminalactions. This means that a person does not get a criminalrecord if the court orders forfeiture of their property,or the payment of a monetary penalty. It also meansthat the court must only be satisfied on the balance ofprobabilities (not beyond reasonable doubt) that theproperty in question is tainted. NSW cases are conductedin the Supreme Court, with proceedings brought by theNSW Drug Crime Commission. Federal cases are run inthe Federal Court.inTernaTiOnal TreaTies andcOnvenTiOnsAustralia is a signatory to a number of internationaltreaties and conventions about drugs and drug policy.These treaties are all prohibitionist in their basic intent.Countries that sign these treaties must agree to pass lawsagainst using and trading of recreational drugs.International treaties and conventions are not law inAustralia. The only law in NSW is legislation passedby state or federal parliament and precedent decisions6HOT TOPICS 59 > Drugs and the law
Page 3 and 4: in the United States by the 1938 Ma
Page 5: The merits of a trial of a heroin p
Page 10 and 11: the case of the household drugsA ma
Page 12 and 13: traffickable quantitiesA traffickab
Page 14: Section 23(1A) prohibits the ‘cul
Page 17 and 18: Random drug testingThe Government h
Page 19 and 20: LegislationUnder section 148 of the
Page 21 and 22: It is an offence to obstruct or del
Page 23 and 24: alcOHOl and yOung peOpleThere is no
Page 25 and 26: disTricT cOurT penalTiesPenaltysUPP
Page 27 and 28: What offences can be dealt with?The
Page 29: Contacts and further readingThe Leg

Drugs and the law - Hot Topics 59 - Find Legal Answers

Create successful ePaper yourself

Delete template?

Save as template?