Having followed this issue closely and recently published an article in The Conversation outlining the various policy responses Australia might consider in response to emerging psychoactive drugs, I was surprised to read about the passing of new commonwealth legislation amending the Criminal Code 1995 in The Age yesterday.
Link to new legislation
Link to explanatory document
Link to call for public comment
Link to parliamentary readings and timeline for passing of bill
From these documents, we see that the first reading of the bill occurred on 10 October, a period of public comment was available from 11 to 26 October, the bill was passed to Senate on 30 October. It was introduced to the Senate on 31 October and passed on 21 November.
While all this was happening, I was focusing on providing evidence to the NSW Inquiry into new synthetic drugs, with no idea of the development and public consultation period of this other important legislation. While clearly I need to be better informed, I also think the Commonwealth should consider increasing public awareness and the capacity for the public to input into this area, as the NSW Inquiry has done.
Moving onto the legislation…
While I’m not a lawyer and have only read the bill once (disclaimer: don’t rely on me for legal advice!), this is the bit I think is the most important to consider:
“301.13 Emergency determinations—serious drugs
(1) The Minister may, by legislative instrument, determine that:
(a) a substance, other than a growing plant, is a controlled drug or a border controlled drug; or
(b) a growing plant is a controlled plant or a border controlled plant.
(2) The Minister must not make a determination under subsection (1) unless he or she is satisfied:
(a) that there is an imminent and substantial risk that the substance or plant will be taken without appropriate medical supervision; and
(b) one or more of the following conditions is met:
(i) taking the substance or plant may create a risk of death or serious harm;
(ii) taking the substance or plant may have a physical or mental effect substantially similar to that caused by taking a listed serious drug;
(iii) there is limited or no known lawful use of the substance or plant in Australia, and the substance or plant has been found by a public official in the course of the performance of the official’s duties;
(iv) the substance or plant may pose a substantial risk to the health or safety of the public.
(3) The Minister must not make more than one determination under this section in relation to a particular substance or plant.”
Initial questions that arise after reading this paragraph for me are:
– Are we now in Australia going to have new drugs controlled entirely at discretion of parliamentary ministers?
– Section 2-b-ii If the new substance has an effect ‘substantially similar’ to that caused by a prohibited drug will be enough to ban it… even if it causes substantially less harm whilst still producing a similar psychoactive effect?
– Section 2-b Only one of these conditions needs to be met?
“301.17 Emergency determinations—publication
(1) The Minister must, on or before the day on which a determination under this Subdivision is registered (within the meaning of the Legislative Instruments Act 2003):
(a) make a public announcement of the determination; and
(b) cause a copy of the announcement to be published:
(i) on the internet; and
(ii) in a newspaper circulating in each State, the Australian Capital Territory and the Northern Territory.”
My interpretation – folks will have absolutely no warning about said emergency determinations. No grace period for suppliers or users to remove these items from shelves or from their houses.
What I don’t understand is how will this legislative changes interact with State/Territory legislation. How will it be applied outside of federal jurisdictions? Any comments or thoughts on this issue would be appreciated.
Our federal response has gone in the opposite direction of our counterparts in New Zealand, who have proposed a regulatory model to deal with new psychoactive drugs.
While the NZ scheme would allow for the scenario of a lower risk alternative drug being legally available to use, the Australian response appears to assume that ANY substances that produces substantially similar effects to currently prohibited substances must be banned.
The problem is obvious to me. While there is no formal recognition of the functions and benefits of drugs that cannot be classed as formally ‘medical’ (that is, to get high, to enjoy oneself, to relax, to achieve personal insights, to explore altered conscious states), it is consistent to ban any substance with substantially similar effects to those currently prohibited.
Until our society can accept the critical importance of altering conscious states for human beings (and indeed many other animal species), we will fail* in our attempts to regulate emerging psychoactive substances.
* My definition of ‘fail’ may be different from yours or the government’s – I believe we have failed if our policies actually result in more rather than less drug-related harm.
Some would argue that if these new laws reduce access to emergent drugs, thereby reducing use, then less harm is produced. My hunch, however, is that access will continue, but our information about what is in these products and what we should advise people who choose to use them will be even more limited than it currently is. If my hunch is correct, we will be inducing more harm and providing less and less control.
We will also have to wait and see how these laws will play out in practice and when interacted with other legislative instruments.
I may be wrong on any of the above, so please correct me in the comments. Your input is greatly appreciated.
