Chapter 3Policy response and related issues
3.1All Australian jurisdictions and multiple portfolios share the responsibility of implementing Australia’s policy response to the challenges posed by illicit drugs. This chapter outlines the current policy settings with respect to illicit drugs, focusing particularly on the role of the Commonwealth, and discusses some of the key concerns raised in evidence about the current policy settings.
Policy framework
Overview
3.2Australia’s approach to illicit drugs is to ‘minimise harm through supply, demand, and harm reduction efforts’. Legal frameworks relating to domestic illicit drug offences are predominantly the responsibility of states and territories. However, the Commonwealth has key responsibilities in disrupting the illicit drug trade and combating transnational, serious and organised crime (TSOC). These efforts are led by the Australian Federal Police (AFP), the Australian Criminal Intelligence Commission (ACIC) and the Commonwealth Director of Public Prosecutions (CDPP), while the Attorney-General’s Department (AGD) has supporting responsibilities as the relevant policy department. Further, the Australian Border Force (ABF), supported by the Department of Home Affairs, has a key role in monitoring imports and border operations.
3.3The Commonwealth, through the Department of Health and Aged Care (Department of Health), is also responsible for the administration of a broad range of policies, programs and regulatory activities aimed at preventing or reducing harms associated with illicit drugs. The key policy document which guides Australia’s response to illicit drugs is the National Drug Strategy 2017–2026 (the Strategy).
The National Drug Strategy
3.4The Strategy, which encompasses alcohol, tobacco and illicit drugs:
…provides an overarching framework that identifies nationally agreed priorities, guides action by governments in partnership with service providers and the community and outlines a national commitment to harm minimisation through balanced adoption of effective demand, supply, and harm reduction strategies.
3.5The Strategy’s overriding principle is harm minimisation, and it aims to build ‘safe, healthy and resilient communities through preventing, responding and reducing alcohol, tobacco and other drugs related health, social and economic harms’. As mentioned above, the three pillars of the policy are:
demand reduction—preventing the uptake or delaying the use of illicit drugs, reducing harmful use and supporting people to recover from dependence;
supply reduction—restricting availability and access to alcohol, tobacco and other drugs in order to prevent or reduce alcohol, tobacco and other drug problems. The strategy seeks to do this by controlling licit drug and precursor availability and preventing and reducing illicit drug availability and accessibility; and
harm reduction—reducing the adverse health, social and economic consequences of the use of drugs by reducing risk behaviours and creating safer settings.
3.6The Strategy identifies four underpinning strategic principles, which, it states, should be reflected in any actions or policy directions that are implemented under it. They are:
evidence-informed responses, which seeks to support research and the incorporation of evidence-based practices into funding, resource allocation and implementation of strategies;
partnerships, including between health and law enforcement, as well as broader engagement between ‘government and non-government agencies in areas such as education, treatment and services, primary health care, justice, child protection, social welfare, fiscal policy, trade, consumer policy, road safety and employment’. Other specific partnerships identified in the Strategy include with ‘researchers, families and communities, peer educators, drug user organisations, Aboriginal and Torres Strait Islander communities, and other priority populations’;
coordination and collaboration, namely at the international level, nationally and within jurisdictions to lead to improved outcomes, innovative responses and better use of resources; and
national direction, jurisdictional implementation, which notes that funding and implementation of strategies to reduce harm occurs at all levels of government. Jurisdictional implementation enables governments to implement a national harm minimisation approach that reflects local circumstances, while coordination and collaboration supports the development of better responses by sharing practices and learning.
3.7The Strategy identifies actions, populations and substances to be prioritised in the course of its implementation. These are identified in Figure 3.1 below.
Figure 3.1Priority actions, populations and substances under the National Drug Strategy 2017–2026
Source: Department of Health, National Drug Strategy 2017–2026, 13December2017, p. 2.
Issues raised with the current policy approach
3.8A range of issues related to the implementation of the current policy approach were raised with the committee. This section discusses the following matters:
governance arrangements under current policy settings;
lack of ongoing evaluation of the Strategy;
inconsistency across jurisdictions; and
the balancing of resources between the pillars of the Strategy.
3.9Other issues specific to each of the pillars are discussed in later chapters.
Governance arrangements
3.10As discussed later in this chapter and in chapter 5, the committee received a significant amount of evidence related to the importance of an integrated approach to harm minimisation, drawing together law enforcement, health organisations and other agencies across jurisdictions.
3.11The committee was told that a framework previously existed that brought governments’ health and law enforcement arms together at the state, territory and Commonwealth levels. This formal governance mechanism existed under the umbrella of the Council of Australian Governments (COAG) and was not re-instated or replaced when COAG was replaced by National Cabinet in 2020.
3.12The National Drug Strategy described the significant governance infrastructure that supported the implementation of the Strategy and the variety of mechanisms that drew together both health and law enforcement representatives and responsible Ministers. This structure is set out in Figure 3.2 below.
Figure 3.2National Drug Strategy 2017–2026 governance mechanisms
Source: Department of Health, National Drug Strategy 2017–2026, 13December2017, p. 37.
3.13The Ministerial Drug and Alcohol Forum (MDAF) brought together police ministers and health ministers from across jurisdictions to discuss issues of national concern in relation to drugs. Supporting the work of the MDAF was the National Drug Strategy Committee (NDSC), which consisted of senior officials from the government agencies responsible for alcohol and other drug policy from the health and law enforcement portfolios from each jurisdiction.
3.14The MDAF was established in 2016 in response to a recommendation of the 2015 Final Report of the National Ice Taskforce. The final report noted the previous existence of the Ministerial Council of Drug Strategy (MCDS) which was discontinued in 2011. At the time of the report’s publishing, two COAG Ministerial Councils had joint responsibility for overseeing cooperation on drug-related policy: the Health Council; and the Law, Crime and Community Safety Council. The Taskforce found that this existing system of governance did not facilitate timely collaboration between Commonwealth, state and territory governments. It commented that the separation of health and law enforcement issues could result in delays in the endorsement of national policy responses and lead to illicit drug policy issues being overtaken by other health and law enforcement matters. The report recommended that a ‘simplified governance model’ be introduced to ‘support greater cohesion and coordination of law enforcement, health, education and other responses to drug misuse in Australia’. As mentioned above, this recommendation led to the establishment of the MDAF, which involved both law enforcement and health ministers.
3.15Evidence to this inquiry indicated that no formal forum exists upon which government representatives of both law enforcement and health portfolios are permanently represented. The committee was informed that instead, a number of other forums have been established that are focused on either health or law enforcement. Some of those are identified in the following paragraphs.
3.16The Department of Health currently has responsibility for the Australian National Advisory Council on Alcohol and Other Drugs (ANACAD), the members of which have professional backgrounds in health policy, research, prevention and treatment. When ANACAD was first established in December2014, there were two law enforcement representatives appointed. An additional law enforcement representative was appointed for a further three years from January 2018, but resigned in September 2020. Since September 2020, there has been no formal law enforcement representation on the ANACAD, other than occasional engagement through meetings and correspondence.
3.17There are a range of ministerial-level forums that have been established under National Cabinet, including the Standing Council of Attorneys-General, Police Ministers Council and the Health Ministers’ Meeting. The Department of Health advised that the Health Ministers' Meeting is able to engage with other bodies, such as the Police Ministers Council, as the need arises. An example of this cooperation is demonstrated by the agreement of the Health Ministers’ Meeting and Police Ministers Council to hold a joint meeting addressing the issue of vaping and e-cigarettes.
3.18The Attorney-General’s Department told the committee that a further body, the Australian Transnational, Serious and Organised Crime Committee (ATSOCC) provides a forum where the department regularly discusses law enforcement issues with respect to illicit drugs with state and territory law enforcement and justice representatives.
3.19Evidence to this inquiry supported re-instatement of a body that brings together representatives from health and law enforcement at a senior level across Commonwealth, state and territory jurisdictions.
3.20One reason given in support of this position was that the MDAF was an effective mechanism to facilitate a nationally consistent approach by bringing together representatives from across jurisdictions. Professor Dan Lubman, Executive Clinical Director, Turning Point, and Director, Monash Addiction Research Centre, explained this this framework ’allowed more conversations about care at the state and federal levels and across health and police’. Professor Lubman suggested that the absence of this framework is a major driver of the lack of coherent strategy across jurisdictions and between health and police. This sentiment was echoed by Mr Gino Vumbaca of Harm Reduction Australia, who described the current circumstances as ‘siloed’.
3.21The Australian Alcohol and other Drugs Council (AADC) shared this view and recommended that such a structure also include representatives of key alcohol and other drugs sector stakeholders, and those with relevant experience.
Lack of ongoing evaluation of the Strategy
3.22The Strategy outlined a detailed process for monitoring and reporting progress of its implementation. This included:
an annual progress report in which the MDAF would provide an update on jurisdictional and national activity and identify trends and emerging issues based on the best available data. These reports were to be made publicly available on the Department of Health website;
a more detailed progress report to be prepared for the MDAF to submit to COAG in line with the release of findings of the National Drug Household Survey. The schedule for these progress reports at the time of the release of the Strategy was 2018, 2021, 2024 and a final report in 2027; and
a mid-point review of the Strategy in 2021-22 to provide any new priorities, emerging issues or challenges.
3.23It appears that of the three monitoring mechanisms envisaged by the Strategy, only an annual report for 2018 has been made publicly available. Further, the Department of Health explained to the committee that while some scoping work was undertaken to do a mid-point review, no formal review took place. Instead, the Department’s focus is directed towards the next Strategy, to take effect after the current one ends in 2026.
Inconsistency across jurisdictions
3.24In addition to the absence of a coordinated and integrated governance structure, the committee was also told that there are inconsistencies between state and territory and Commonwealth criminal laws relating to illicit drugs.
3.25The Criminal Code Act 1995 and the Criminal Code Regulations 2019 outline the Commonwealth laws related to supply of drugs and delineate between commercial, marketable and trafficable quantities. These establish the minimum quantities for drug offences to be prosecuted under Commonwealth laws.
3.26However, supply-related thresholds under the national legislation are much lower than the thresholds for prosecution of possession-related offences in some jurisdictions. For example, in the ACT following decriminalisation, personal use amounts are substantially higher than federal trafficking laws. This causes an issue for law enforcement in the potential inconsistency that arises in relation to application of the laws. The ACT Government told the committee that greater consistency between the jurisdictions would enhance clarity for police. It noted the importance of legal clarity in the ACT given that ACT Policing is the community policing arm of the AFP.
3.27The ACT Government also noted that other Australian jurisdictions also have trafficking thresholds that exceed the Commonwealth levels, including NSW, Victoria and Tasmania.
3.28A further issue was raised regarding the threshold amounts within various laws that determine which offence someone found with drugs should be charged with (e.g. possession versus trafficking). The committee was told that the amount for a more serious trafficking offence is quite low in certain jurisdictions, which may catch certain persons not intending to supply to others within that scope. Further, Professor Alison Ritter, Director of the Drug Policy Modelling Program at the University of New South Wales, noted that Australia is one of the only jurisdictions internationally to determine drug supply crimes by weight alone without other evidence of intent to supply (such as phone logs, scales and money bags).
3.29Mr Alex Engel, appearing on behalf of the Attorney-General’s Department, acknowledged the jurisdictional inconsistencies in regards to drug thresholds. He advised that this matter is not being considered as part of a formal review but is ‘on a list of policy work to work through with the states and territories’. He stated that the question about the thresholds themselves has not recently been considered. However, he advised that these thresholds are informed by intelligence advice from the AFP and ACIC, along with some input from health portfolio agencies. Mr Engel stated that while the Commonwealth leads on national efforts and achieving consistency across jurisdictions, states and territories are in a better position to determine threshold amounts:
…there is a recognition that, especially when you're talking about personal use and possession and those sorts of issues, state and territory governments are often best placed to deal with these issues, because they're closer to the ground and the Commonwealth's focus is heavily on the top end of town and serious organised crime.
Rebalancing focus and resources among the pillars
3.30The Strategy described the strong partnership between health and law enforcement as a ‘key strength’ and identified it as a factor ‘central to the harm minimisation approach’. However, as the following sections demonstrate, some submitters were of the view that implementation of the Strategy is weighted towards the activities of law enforcement, as opposed to health approaches.
3.31The current distribution of funding among the three pillars of the strategy was identified as evidence of this weighting of the Strategy’s focus towards law enforcement activities. The AADC submitted that supply reduction measures are funded ‘at a factor of almost 3:1compared with harm and reduction measures’. Dr Karen Gelb, Acting Chief Executive Officer at Penington Institute, told the committee that law enforcement receives up to two‑thirds of government expenditure on drug policy, while treatment receives over 30 per cent and harm reduction measures receive two to three per cent.
3.32It was suggested that current funding deficits for treatment services, and the resultant barriers to access, exacerbate or contribute towards harms, and increase law enforcement’s workload. The AADC estimated that 500,000Australians are unable to access treatment for concerns relating to alcohol and other drugs. Jesuit Social Services described the current treatment system as ‘fragmented and underresourced’.
3.33Penington Institute submitted that the current settings, including the heightened focus on the role of law enforcement in relation to drugs, limit the capacity for drug use to be considered a public health problem. It explained:
Law enforcement certainly has a role to play in reducing the supply and distribution of illicit drugs, especially at the level of large-scale organised criminal enterprises. Nonetheless, Australia must explore and prioritise health-led responses to illicit drug use rather than conceptualising drug use as a primarily criminal issue. Penington Institute believes that if Australia continues to maintain a 'tough on drugs' stance, this will inevitably lead to increased drug-related harm and ongoing damage to communities, while also unnecessarily burdening the criminal justice system, including law enforcement, courts and prisons.
3.34Inquiry participants who shared this view advocated for a rebalancing of government expenditure across the National Drug Strategy’s three pillars, with more funding directed towards demand and harm reduction measures and a shift in approach from a punitive response to illicit drug consumption to a health-based one. Penington Institute articulated this view as follows:
…the most urgent task in drug policy is to rebalance government expenditure across the three pillars of harm minimisation. Spending remains heavily skewed towards law enforcement efforts aimed at controlling drug use, compared with minimal investment in evidence-based harm reduction initiatives. There are multiple forms of harm reduction that have a proven track record of improving individual and public health but remain severely underfunded or absent, even as billions are spent on the outdated prohibition model.
3.35The Alcohol and Drug Foundation advised that spending on the pillars of harm minimisation needs to be rebalanced with increased investment in treatment and prevention interventions creating healthier communities that are more resilient and less vulnerable to illicit drug related harms. It advocated for a health-based approach to personal drug use that is non-punitive and non‑stigmatising.
3.36The AADC suggested that there was a clear economic case for investment in health-based strategies. It stated:
Economic modelling illustrates a clear case for investment in health-based responses to illicit drug use, with for example, anywhere between $5.40‑7returned for every $1 invested in the treatment sector and $27returned for every $1 invested into harm reduction programs, such as needle and syringe programs.
3.37While supporting a balanced approach, Professor Nick Crofts, Executive Director, Global Law Enforcement and Public Health Association, emphasised the ‘critical role of law enforcement in achieving public health goals’ which ‘is often under-recognised and largely undervalued’. Professor Crofts emphasised that ‘we need to be looking at finding the right balance and the right level of involvement of police in addressing public health problems’.
3.38Law enforcement bodies and government policy departments both recognised the importance of a multifaceted approach to addressing the issue of illicit drugs. The AFP added ‘aside from reducing harm at the individual level, improved access to healthcare and social services is key to reducing the drug demand that fuels TSOC’.
3.39The ACIC observed the importance of agile policy efforts to keep pace with addressing this multifaceted issue:
Solutions must continue to evolve with agile and integrated efforts, spanning policy, legislation and ongoing collaboration across law enforcement, intelligence and national security, health and education agencies and the private sector and academic institutions.