Australia’s newest response to emerging psychoactive drugs

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.


7 thoughts on “Australia’s newest response to emerging psychoactive drugs”

  1. so, parliament can criminalise any
    “substance or plant may have a physical or mental effect substantially similar to that caused by taking a listed serious drug;”
    – even if the substance or plant has no known health risks.

    this raises 2 points for me:

    1. they’r e willing to criminalise the (quite possibly positive) effects of a “new” plant or substance, irrespective of whether it might reduce health risks. this new law is dterminedly not about health.

    2. criminalising a state of mind: thought crime.

    I’ve always understood that there are some states of mind that, while incredibly valuable to visit, are locked away, requiring plant keys to access, for a very good reason. By then criminalising access to those keys, our leaders seek to criminalise the valuable mind states they unlock.

    my first response is gong to be a demonstration of disobedience …
    I look forward to organising further against this outright stupidity.

  2. Appalling. No scientific basis required. No evidence required. Appears to be based on hunches riding off the back of anecdotes, potentially from sensationalist sources who have been proven to exaggerate the risks of illicit drugs, in comparison with other activities of personal-responsibility (Prof. David Nutt spoke on an Oxford podcast about the UK media distorting effects from illicit substances: – Australia works similarly – probably with less diversity of publications)

    To legislate hunches and anecdotes gives power to mobs and narratives, over carefully crafted, pragmatic policy which attempts to distribute information, awareness and a sense of self (and the responsibility that comes with that) which are proven time and time again to foster better society.

  3. I challenge our ministers to ban wine first!

    Penfold Grange and other iconic wines are absolutely analogues of the scheduled substance GHB. This is a clear implication of the latest drug analogue legislation proposal.

    Alcohol acts primarily on the GABA-B receptors in the brain. The interaction of alcohol with GABA-B and dopamine receptors account for most of the intoxication and habituation caused by beer and wine.

    GHB acts on both the GABA-B and the newly sequenced GHB receptor. The evidence that GHB affects the GABA-B receptor primarily is threefold. On a behavioural level, antagonizing the GABA-B receptor stops the discriminative effects of GHB. On a cellular level, GHB causes a pronounced hyperpolarization of nerve cells and this effect is blocked by GABA-B antagonists but not by GHB receptor antagonists, demonstrating the primacy of the GABA-B receptor. Thirdly, on a molecular level GHB binds to the GABA-B receptor. In addition, studies of alcohol preferring and non-preferring rats demonstrate that rats genetically predisposed to alcohol use are similarly predisposed to GHB use.

    GHB inebriation and alcohol inebriation are phenomenologically similar. At lower doses GHB effects include relaxation, reduction of social inhibitions, decreased motor skills, mood lift and other effects of mild alcohol intoxication. At higher recreational doses effects can include dizziness, difficulty focusing the eyes, positive mood changes, increased appreciation of music, dancing, and talking, slurring of speech, nausea, and grogginess, again very similar to alcohol.

    The small size of both compounds, coupled with the even length of the alkyl chains and relative location of the oxygen atoms suggests structural analogy.

    Alcohol and GHB are analogues with very similar intended effects, acting at the same receptors and sharing very similar behavioural pharmacology.

    They also have differences, but so to do each and every distinct “analogue”. Each substance is unique. Analogy is not identity.
    One could object that alcohol has accepted legal uses, but this only highlights the entrenched injustice of our system. Alcohol is an extremely dangerous substance, yet it apparently has diplomatic immunity over safer inebriants by the sheer power of hegemony.

    Penfold Grange is clearly an analogue of GHB. Clearly. This proposed legislation leaves absolutely no room at all for doubt.

    Alcohol meets ALL the criteria listed in this legislation for ministerial consideration, and I would challenge Ministers to add it as a controlled substance FIRST, before proceeding to trivia such as MDPV.

    Des Tramacchi

  4. The plants that the government wishes to outlaw have been used for 1000s of years . With the exception of Daturas , Brugmansias , and other Solanacaes , they are physically harmless – i.e. cacti and most of the tryptamine containing species . Furthermore , these plants taste dreadful and can cause intense nausea , and are most unlikely candidates for use as ” recreational ” drugs – they most certainly would not appeal to people looking to get ” high ” ….Nevertheless , GABAs , GHB , etc , and the recently appearing MDPV s , etc , are indeed dangerous , appeal to the masses , are cheap and very easily procurable . It is these type of substances , not harmless plants , that are in need of control and regulation .

  5. Thanks for the comments everyone.

    I’m sure we can think of a few unlikely arguments, eg. alcohol and GHB being analogues… but the phrase in the law saying that the substance has ‘limited or no known lawful use of the substance or plant in Australia’ means alcohol would be exempt as it has a ‘lawful use’.

    However the fact that only one of those conditions in 2-b needs to be met means that almost anything could be scheduled.

    @Zoltan Pepper
    Yes I’ve heard the argument that plants are safer and chemicals are more harmful. I don’t buy it personally though – because we can all think of dangerous plants and benign chemicals. While I absolutely agree with you that the plants you list should not be banned, not all of the recently appearing newer synthetic drugs are necessarily dangerous. And even if a substance is dangerous, is banning it going to help the situation or will it just prompt even lesser known and lesser understood drugs onto the market?

    For example, what about the scenario where a new synthetic drug is developed that has similar effects to cannabis but has a lower propensity to bring on psychosis in predisposed individuals. If such a drug existed, it may be safer than cannabis and it may be a useful substance. But if it has a similar effect to a currently prohibited drug, it will be banned under these laws regardless of such considerations of levels of harm. Such an act would be a lost opportunity to reduce harms for those affected individuals.

  6. Thanks Monica. The technocrats now have two ways to “control” chemicals and plants: emergency determinations, which you discuss above, and listing by regulation.

    The conditions for emergency determinations are set out in section 301.13; those for listing by regulation are set out in section 301.7.

    Both require first that the chemical or plant may be “taken without appropriate medical supervision”.

    That’s a strange phrase. What is appropriate medical supervision for anything that’s not a medicine? The explanatory notes say the phrase means “used in circumstances beyond those considered appropriate for medical or therapeutic purposes”, which I think is even vaguer. But it suggests we should only ever take… psychoactive substances? … for therapeutic purposes, and under supervision.

    I suggest that drinking a beer in the pub or sipping a glass of Penfolds Grange is taking alcohol in circumstances beyond those considered appropriate for medical or therapeutic purposes.

    Once the “medical supervision” precondition is met, technocrats have a choice of 5 other conditions, any of which alone is enough to justify listing the chemical or plant by regulation as a serious drug.

    My favourite is :

    (iv) possession or conduct in relation to the substance or plant is proscribed under a law of a State, a Territory or a foreign country that has purposes similar to those of this Part.

    That’s right: if any foreign country has banned something as a serious drug, then we can too. By my count, alcohol therefore actually meets all 5 conditions for listing by regulation:

    (i) taking the substance or plant would create a risk of death or serious harm;
    (ii) taking the substance or plant would have a physical or mental effect substantially similar to that caused by taking a serious drug that is already listed;
    (iii) the substance or plant has the capacity to cause physiological dependence;
    (iv) possession or conduct in relation to the substance or plant is proscribed under a law of a State, a Territory or a foreign country that has purposes similar to those of this Part;
    (v) the substance or plant poses a substantial risk to the health or safety of the public.

    You point out that one of the conditions for emergency declarations has to do with lawful use. But you’ve got it the wrong way around. Widespread lawful use doesn’t make something exempt from emergency determination; rather, if a public official finds a substance or plant in the course of performance of the official’s duties, then “limited or no known lawful use” is sufficient reason to make an emergency determination that it’s a serious drug.

    If, of course, there’s an imminent and substantial risk that someone will take it “beyond conditions considered appropriate for medical or therapeutic use”.

    This makes me suspect that the technocrats are again specifically targeting plants that some revere as plant guides. The plants are psychoactive; arguably there’s an imminent and substantial risk that someone will take them without “appropriate medical supervision”; and they’re not widely used. That’s enough reason to make an emergency determination that they’re a dangerous drug.

    (Of course it would be just as easy to list Brugmansia species, for example, as a dangerous drug by regulation, because taking it can easily kill you.)

    Another phrase in the Bill confirms my suspicion: in section 301.2, a note says:

    “(2) The purpose of subsection (1) is to permit growing plants that are covered by the TINDAPS Convention to be treated as controlled plants for the purposes of this Part (see also section 300.1).”

    The 1988 TINDAPS Convention does’t “cover” growing plants: it lists chemicals, in an effort to prevent trafficking in precursors. Here’s the list of chemicals the 1988 TINDAPS Convention “covers”:

    And that Convention doesn’t even say we should simply “ban” all those potential precursors: we’re only required to prevent their diversion. See article 12 here:

    But enough! What frustrates me most is that many of us made these criticisms and more when the Attorney-General’s department released the discussion paper on Christmas Eve 2010. Despite promising more consultation, the technocrats have not acknowledged let alone addressed the concerns we raised.

  7. in 2013 NSW passed laws baning all analogs of psychoactive substances, making all acacias(wattles) illigal more then 50% of the cacti family illigal gravilias and many other natives are now all classed as noxious weeds with possesion propergation or retail of them punishable with up to 2 years in jail. groups like cacti societys and the botanical gardens trust are now tecnicly in the same catagory as drug cartels in the eyes of the law ! possesing a peice of golden wattle is now punishable by a 2 year jail term so if your in new south wales consider wether you want to put that sprig in your pocket for anzac day, you may well end up watching the next anzac day parade from a jail cell

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