i. Introduction.
On Friday morning, 15 September 1953, Mrs Alice Brownbody walked to her local pharmacy in Queanbeyan, a small NSW country town. She purchased on prescription a bottle of cough elixir containing heroin linctus. In purchasing and consuming heroin, Mrs Brownbody committed no offence. She could not have been charged with possessing "trafficable" amounts of heroin. In selling heroin to Mrs Brownbody, the pharmacist, Mr Jim Snow, also committed no offence.
In 1953, and for the previous ten years, there were no recorded deaths in Australia due to heroin overdose. There were no centres providing detoxification for heroin users. Property crime associated with heroin use was unknown. No-one in Australia was in prison for trading in heroin. According to the then Commonwealth DirectorGeneral of Health, heroin addiction and non-medical use of heroin was unheard of. Transmission of infections through re-use of dirty needles and syringes was also unknown.
On Thursday, 2 June 1995, a young man died in Canberra of a heroin overdose less than 20 kilometres from where Mrs Brownbody had bought her legal heroin some 40 years earlier. He was the ninth person to die from a heroin overdose in the ACT in four months. In purchasing and consuming heroin, this young man committed a number of offences - for which some in society would brand him a criminal. His possession of "trafficable" amounts of heroin was a criminal offence. The unknown person who sold him the heroin had also committed a number of (more serious) offences.
In the last decade of the twentieth century, over 450 Australians die each year from heroin overdose. There are not enough detoxification centres and methadone maintenance programs to meet demand. Property crime associated with heroin use, or the securing of its supply, costs Australia an estimated $400 million a year. Over half the prisoners in Australia are serving time for drug-related crimes. Actual or threatened transmission of blood-borne viruses (such as HIV and hepatitis B and C) from shared needles and syringes is considered a critical public health issue.
In the four decades since heroin was banned in Australia in 1953, the pharmacological properties of the drug have not changed. Its "addictive" potential has not altered. Social controls over this and all other illicit drugs and the way they are supplied have, of course, changed dramatically and at great cost to our community. When Mrs Brownbody lawfully bought her heroin syrup from a pharmacy in Queanbeyan, Robert Gordon Menzies was Prime Minister, and Jim Snow, the pharmacist, often dispensed legal heroin to patients considered to be addicted to it. After heroin was prohibited, he saw his patients change from ordinary folk to people who lied, stole, deceived and prostituted to get what they had previously obtained legally and without difficulty.
In this chapter we examine how Australia and other countries changed their controls over illicit drugs. Why we changed our social controls is a much more complicated question. Substances which act on the brain to change our mood, such as opium and marijuana, have been used since the beginning of recorded history. The opium poppy is mentioned in ancient writings from central Asia before 6000 BC. Assyrian medical remedies relied heavily on opium as far back as 900-700 BC. Hippocrates documented the properties of the juice of the opium poppy. Opium cultivation spread to India (400-500 AD) and China (600 AD) and arrived in Britain during the tenth and eleventh centuries. For over 800 years, there was no formal control of opium or opium-based products in Britain.
The earliest recorded use of cannabis was in Taiwan 10,000 years ago. Indian sources refer to marijuana in 2700 BC; the Assyrians refer to it in 650 BC and it was found in German relics from 500 BC. Marijuana remained freely available in most western countries until the 1930s, when various countries banned distribution and consumption. Australia banned cannabis in 1926 following an international meeting in 1925. New South Wales banned cannabis in 1927, although records show that authorities could not see any particular reason to ban the drug - nobody was using it. But as the Commonwealth had already banned the drug, New South Wales decided to follow Canberra"s example. In the United States in the 1930s, cannabis was legally available as a medicine, but alcohol production or sale was prohibited. A decade later, alcohol was legal but cannabis was illegal. History teaches us that the decision to ban a particular drug is often arbitrary. Once written into law, even capricious decisions take on a new meaning. Criticism of drug policy is often interpreted as an attack on the foundation of the state.
Public drunkenness was considered a social or criminal offence for over 380 years. Most Australian States only decriminalised public drunkenness in the 1970s. Prohibition drug laws of the modern era date back to the first opium control legislation about a century ago. Prohibition of marijuana Australia is less than 70 years old. In 4000 years of documented historical drug usage, public drunkenness laws have existed for less than ten per cent of that time while criminal penalties for other drugs have been around for less than three per cent.
The history of drug prohibition in Australia and elsewhere is shrouded in ignorance, bigotry, racial prejudice and false assumptions. These conditions helped to create prohibition in the early twentieth century. But we were also willingly subservient to more aggressive players on the international stage, committed to establishing global control of narcotics.
Australia"s drug policy and legalisation did not follow from a comprehensive "root and branch" review. They developed by slow accretion. Commonwealth and State legislatures displayed a willingness to establish drug control policies in response to overwhelming pressure. For example, the Commonwealth was under considerable international pressure in the 1950s because Australia consumed relatively large quantities of heroin per head of population. This resulted in the total prohibition of heroin in 1953. The rather hurried copying of legislation in the States occurred without questioning whether or not it was good for Australia. There was little investigation of the ramifications of these new policies. Consistently, Australian drug policies have been reactive responses rather than products of political vision, leadership or sound scientific scholarship.
Opium smoking had been relatively common among Chinese immigrants in Australia for several decades when the colonies began to regulate opium consumption in the 1890s. Drug legislation at that time was mainly a response to pressure from the public for protection against the misuse of poisons. Racial bias against the Chinese, coupled with the moral concerns of the influential temperance movement (associated with a middle-class women"s lobby), led to Australia"s early "Chinese opium laws". Evidence which did not support prohibition was never considered. Such evidence would not have mattered because the case against opium was based on moral arguments, often with a strong religious basis, rather than scientific facts.
During the 1890s and the first decade of the twentieth century, recreational use of opium became legally stigmatised. Controls came through prohibition rather than regulation. The argument then advanced, and one that still has some emotive force today, was that once something evil was banned, the problem was solved. No alternative ways of controlling opium smoking were ever considered. Between 1895 and 1908, all Australian States and the Commonwealth passed opium control laws. These laws did not deal with opium contained in the secret remedies of patent medicines, nor with its common and frequently habitual consumption in the form of laudanum (which was swallowed). Only opium in form suitable for smoking, used almost exclusively by the Chinese was outlawed. This limited and quite specific aim was achieved by legislation that was both a radical contrast to the poison law which came before it, and a clear precedent for the more general drug laws which followed.
Opium smoking in Australia was hated as a symbol of the Chinese. It was seen as an agent of vice, lethargy and filth and the tool by which "innocent white girls" were seduced by "lustful and unscrupulous Chinamen." The link between opium smokers and depravity coloured the imagination of Austratia"s European settlers almost from the beginning. By the late 1880s, opium and the "Chinese vice"was considered to have become a scourge. A petition presented to the NSW Parliament in 1887 claimed that European women, after being induced to use opium dens, became habitues of the same resorts and scenes of the grossest immorality ensued.
The first Australian laws controlling opium, which prohibited opium smoking, were passed in South Australia in 1895, when the only people smoking opium were Chinese. In 1905, the Commonwealth stopped the legal importation of opium which had previously attracted a duty. Within three years, the official charged with reporting on customs to the new Australian Parliament concluded that the government had lost (60,000 per year income, even though opium was entering the country just as before. Racial hatred lay behind the origin of our drug laws, as was also the case in other countries such as the United States. Opiates as a linctus, the form preferred by Europeans, continued to be available in Australia until the mid-1950s.
Later laws restricting the use of heroin, morphine and cocaine were built upon the precedent of the opium control laws. These national laws, and the ever-increasing international regulations and controls, developed through the 1920s and 1930s, step by step, always tightened and never relaxed. Not developed through any conscious determination to create a comprehensive system of control over an ever-expanding range of drugs; not as the result of careful scientific study; not because of erudite scholarship. But as a response to international and bureaucratic pressure. There has never been an open and full scientific assessment of any of the identified "problems" associated with illicit drug use to justify or vindicate any Commonwealth or State prohibitionist laws. The epidemic of Royal Commissions, parliamentary and other official inquiries which began in the 1970s have in recent years increasingly questioned the philosophical basis and effectiveness of our reliance on law enforcement to control illicit drug problems. But fear of political retribution has always prevented our politicians from fashioning our laws from the conclusions of our expensive opium smoking in Australia was hated as a symbol of the Chinese. It was seen as an agent of vice, lethargy and filth and the tool by which 'innocent white girls' were seduced by 'lustful and unscrupulous Chinamen'. The link between opium smokers and depravity coloured the imagination of Austratia's European settlers almost from the beginning. By the late 1880s, opium and the 'Chinese vice' was considered to have become a scourge. A petition presented to the NSW Parliament in 1887 claimed that European women, after being induced to use opium dens, became habitu6s of the same resorts and scenes of the grossest immorality ensued.and increasingly frequent Royal Commissions.
When a total ban on the use of heroin for any purpose, including medical reasons, was mooted in Australia in 1950, no State government supported the proposal. Opposition was considerable. In 1952, the NSW Government opposed the Commonwealth proposal, arguing that heroin was quite effectively controlled in their State and that there was no justification for total prohibition. The Federal Council of the British Medical Association (BMA) in Australia, the forerunner of the AMA, also argued strongly that there should be no curtailment of the availability of heroin. The attitude of the BMA did not seem surprising as heroin was already controlled exclusively by the medical profession. The BMA feared that the proposed prohibition of heroin would deprive them of a useful drug frequently prescribed for the pain of childbirth and the often intractable pain of terminal cancer. The Commonwealth"s senior health bureaucrat, the Director-General of Health, argued at the time that although heroin was frequently used in Australia as a prescribed drug and in many cough mixtures, both addiction to it and the non-medical use of it were almost unheard of.
Nonetheless, in international forums the Commonwealth was made acutely aware of the political embarrassment caused by Australia"s relatively high level of heroin consumption. Following minimal consultation with the States and the medical profession, the Commonwealth acted by prohibiting all importation and manufacture of heroin in June 1953.
The Commonwealth sought to justify the ban to the public on the ground of its being a health measure necessary to control and counter the perils of heroin addiction. Yet no-one had ever suggested, and the Commonwealth Government consistently denied, that Australia"s level of heroin consumption was a function of its legal use, or was an unquestionable result of consumption by addicts.
No study was commissioned to assess the prevalence of heroin addiction in Australia prior to the ban being imposed. Nor was any study commissioned to assess the addictive potential of heroin. In other words, this decision was not made rationally. The decision had no scientific basis and was contrary to advice given by experts including the medical and pharmaceutical professions. It was, apparently, a political decision taken to appease international detractors and to accede to the "draconian" prohibitionist policies championed by the United States. Like the development of drug policy in general it reflected, first, an obedience to international opinion, and second, a growing acceptance of stereotypes about evil or helpless addicts.
eviThus, the domestic origins of our drug policy lie with a nineteenth century moralistic and racial social ethic, bolstered by international opinion fostered by the United States.
The large number of our international treaties commits Australia to a prohibitionist "crime and punishment" approach. Two main effects flow from this international pressure. First, drug laws enacted throughout Australia have conformed to the international prohibition model, which has required relentless extension and intensification. For example, the 1905 Commonwealth proclamation, which dealt only with opium, was expanded in 1914 to deal with a range of other drugs covered by the Opium Convention of 1912 (sponsored by the United States). Following Commonwealth insistence, State legislation likewise expanded beyond opium smoking to deal with the other drugs in accordance with Australia"s international treaty obligations.
Second, the international treaties entrenched the assumption that the way illicit drug use was being controlled in this country was effective and inevitable. Strict prohibitions and severe penalties, including the punishment for possession, came to be seen as beyond questioning.
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I. Treaties Treaties and Protocols
The first International Convention on narcotics, sponsored by the United States and signed in the Hague in 1912, covered opium, morphine and cocaine. Australia signed the Convention in 1913, becoming committed to the gradual suppression of the non-medical use of specified drugs. Signatory countries were required to pass laws to limit the manufacture, sale and use of drugs to medical and research purposes. Illegal possession was to be considered a penal offence. Consequently, by 1914, the Commonwealth Government had prohibited the importation of medicinal opium, morphine, cocaine and heroin, unless covered by a licence. By the mid 1920s, all the States had enacted legislation supporting the Commonwealth laws and Australia"s international obligations.
The 1925 International Opium Convention (the 1925 Geneva Convention) set out to coordinate international action taken against illicit trafficking in narcotic drugs. The signatories to the Convention agreed to use this new Convention to control the distribution of various narcotic drugs, including cannabis (at the request of Egypt, Turkey and South Africa). Egypt argued that as more Egyptian men than women suffered mental illness and more men than women also used cannabis, therefore cannabis must cause mental illness. Such were the shaky foundations upon which the edifice of prohibition was built. Once built, we could not admit the possibility that it was all a dreadful and costly mistake.
The primary aim of the 1931 International Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs was to restrict worldwide manufacture of drugs entirely to medical and scientific needs. The Convention also established a system of estimating medical and scientific requirements for the drugs which has been continued in later treaties and which was to be binding on all signatories.
One of the key provisions of the 1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs required the parties to severely punish, particularly by imprisonment, the offences of illicit narcotic trafficking if such offences were committed internationally. This Convention also set the pattern for subsequent Conventions by establishing an atmosphere in which illicit drugs were to be stereotyped as "bad", "evil" and "immoral". The consequence of this was that treaties, and the complementary domestic legislation they required, were increasingly directed at all the activities associated with drug taking. This was also the first Convention which aimed, though in an indirect manner, to subordinate the domestic laws of signatories to international controls.
After the Second World War, the Commonwealth Government, in effect, surrendered its constitutional responsibility to make its own laws covering illicit drug control. The 1948 Paris Protocol required signatories (including Australia) to place on any new drug the same controls which applied to heroin, morphine and cocaine simply upon notification by the World Health Organisation that the appropriate regime laid down in the 1931 Convention should be applied. Thus any decision, policy or legislation, whether or not to treat new or uncontrolled drugs as dangerous drugs, was no longer up to Australian governments at all. They were and still are obliged to accept without questioning the decisions of the World Health Organisation.
The New York Opium Protocol of 1953 limited the use and international trade of opium to medical and scientific needs. Only seven countries were authorised to produce opium for export. Also, the Permanent Central Opium Board (PCOB) was given authority to impose a mandatory embargo on import or export of opium from or to a country which failed to carry out obligations under the Protocol. The national sovereignty of Australia in this area was made subordinate to PCOB bureaucrats. The next logical step in the process of international prohibition was in the late 1950s. Previous treaties, conventions and agreements relevant to drugs were consolidated, forming the basis of the 1961 Single Convention on Narcotic Drugs.
This Convention codified most of the previous relevant treaties and extended international control to the cultivation of certain plants including cannabis. It was also important for another reason. For the first time, a Convention shifted from proclaiming to signatory States that certain activities should be prohibited, to declaring that only certain activities were allowed. In the 1971 Convention on Psychotropic Substances, international controls were extended to synthetic hallucinogens, stimulants and sedatives.
The 1961 Single Convention was amended by a 1972 Protocol which strengthened its provisions relating to the prevention of illicit production, traffic and use of narcotics. But it also provided for the first time, for the treatment, education, rehabilitation and social reintegration of "abusers" as alternatives, or in addition, to incarceration.
The most recent development was the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. This Convention restates the particular prohibitions of earlier Conventions, adds several new offences with emphasis on heavy sanctions, and outlines the process of sentencing to be followed by the courts under domestic laws.
Our drug laws are a complex web of international treaties and domestic laws. Reform cannot occur without consideration of this web. In Australia, reform must also confront overlapping Commonwealth and State responsibilities and legislation. These complexities may complicate and delay change. But they wilt not be able to prevent a reform that increasingly seems inevitable.
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| Chapter I.
Chapter II.
| Chapter III.
| Chapter IV.
| Chapter V.
| Chapter VI.-VIII. |