On March the 23rd the Victorian Legislative Assembly (Lower House) voted to pass the Drugs, Poisons and Controlled Substances Miscellaneous Amendment Bill 2017 without amendment.

Drugs, Poisons and Controlled Substances Miscellaneous Amendment Bill 2017 summary

  • Add new definitions to the Drugs, Poisons and Controlled Substances Act 1981
    • Psychoactive Effect, in relation to a person, means—
      (a) stimulation or depression of the person’s central nervous system, resulting in hallucinations or in a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood; or
      (b) causing a state of dependence, including physical or psychological addiction;
      psychoactive substance means—
      (a) a substance that, when consumed by a person, has a psychoactive effect; or
      (b) a substance that is represented as, or in any other way held out to be, a substance that, when consumed by a person, has a psychoactive effect; or
      (c) a substance referred to in paragraph (a) or (b) that is contained in or mixed with another substance — but does not include any of the following—
      (d) a drug of dependence;
      (e) a poison or controlled substance;
      (f) a volatile substance within the meaning of Part IV;
      (g) medicinal cannabis;
      (h) a therapeutic good—
      (i) included in the Register within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth; or
      (ii) exempted from the operation of Part 3-2 of that Act by regulations made under section 18 of that Act; or
      (iii) exempted from Division 2 of Part 3-2 of that Act under section 18A of that Act; or
      (iv) that is the subject of an approval or authority under section 19 of that Act, if used in accordance with that approval or authority; or
      (v) that is the subject of an approval under section 19A of that Act, if used in accordance with that approval;
      (i) food within the meaning of the Food Act 1984 that complies with the Food Standards Code within the meaning of that Act;
      (j) liquor within the meaning of the Liquor Control Reform Act 1998;
      (k) a tobacco product within the meaning of the Tobacco Act 1987;
      (l) a chemical product within the meaning of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992;
      (m) a plant or fungus or an extract of a plant or fungus;
      (n) a prescribed substance or a substance that is in a prescribed class of substances;
  • Part IIIA deals with crimes relating to psychoactive substances
    • Offences introduced for production, distribution and advertisement of substances said to be psychoactive (whether or not a substance is psychoactive or is merely represented as such)
    • Provisions for police search without warrant powers if an officer suspects someone to be in possession of a psychoactive substance.
  • Lower quantities for methamphetamine possession and distribution penalties.

The Bill will be debated in the Legislative Council (Upper House) in the coming weeks/months. The discussion in parliament was marred by some rather pathetic politicking between the ALP and the Coalition. Most ministers who spoke to the Bill spent at least some of their time slagging the opposition. When I raised this with a friend who is very close to this process, she laughed and said, “Yup, that’s how it always is.” Greens MP Sam Hibbins was constantly interrupted while he spoke to the Bill, which in the end he too supported, while flagging that Greens in the Upper House would propose amendments to the Bill.

A Bill Wrought With Problems

ClarkRobert58250Here’s the Hon. Robert Clark, member for the Liberal in Box Hill doubles-down in some good-old drug scare rhetoric, eluding to arresting being the way out of the problem, “But even allowing for that, it is clear that drug offending is continuing to grow in this state. It continues to be a major problem, and that is not just a matter of statistics. Unfortunately drug offending can decimate lives and tear into families, resulting in enormous human tragedy across metropolitan Melbourne and country Victoria.”
To be fair to Mr. Clark, he is one of the few Ministers to raise a number of issues with the legislation, albeit as a way to attack the ALP for not addressing these issues, despite admitting his own party when in government were seeking to introduce similar legislation.
“The Police Association Victoria has flagged, and I think it is correct in flagging, that there are some issues about how this definition is going to operate in practice. I quote from communication from Wayne Gatt, the secretary of the association, to the shadow minister, Mr O’Donohue, in the other place: The association also recognises that the part of the proposed reforms for new synthetic drug offences have the potential to result in an increased workload for Victoria Police members. The proposal suggests that synthetic substances should be prohibited based on their psychoactive effect or their representation as having a psychoactive effect. The association recognises that our members will be required to interpret and prove the ‘representative’ psychoactive effect of new synthetic drugs. The bill also suggests that a safeguard is in place to ensure that lawful products will not be captured under the scheme. This safeguard determines that substances are covered under the scheme when a ‘significant’ change is caused as a result to the individual’s nervous system. The term ‘significant’ will necessarily need to be interpreted by our members.”

Mr. Clark noted a number of problems with the legislation:

  • It will not be easy to prove whether an alleged psychoactive substance causes a significant disturbance or a significant change to motor function, thinking, behaviour, perception, awareness or mood.
  • The list of exemptions is significant and issues may arise, such as if a food does not comply with the Food Act, but has psychoactive properties.
  • Advertising of psychoactive substances is banned, but could the ban be extended further to more general promotion of items influenced by psychoactive substances?
  • The Scrutiny of Acts and Regulations Committee (SARC) notes a number of issues too. Though head over and give that thing a read…

Let’s take a step back and re-cap

You’re undoubtedly aware, through the media and perhaps through your own experience of the existence and sale of a number of psychoactive substances (drugs) through stores, including tobacconists, novelty stores, head stores, adult stores, newsagencies and other places. Over the past decade or so, dozens if not hundreds of unique drugs have been packaged, branded and sold. For the most part, this has been done legally and with  no oversight.

This dude has some Khat
This dude has some Khat

The drugs range from synthetic cannbinoid receptor agonists (so-called ‘synthetic cannabis’), which are a huge range of diverse chemicals, usually sprayed onto the relatively benign herb damiana, to stimulants such as analogues of cathinone, the active substance in the khat plant, to a range of psychedelics, like a number of Alexander Shulgin‘s phenethylamines such as the 2C-x series.

In the grand scheme of things, all of these new drugs build on a huge body of work, investigating psychoactive compounds and their potential for use in a number of circumstances, ranging from medical to more intriguing questions raised about the nature of consciousness and its malleability. Many of them are derived from natural sources (plants, fungi) where they are used by people in the area for their effects and often have been used by people for hundreds or thousands of years.

Let’s remember why we’re in this absurd situation, where chemist is pitted against legislator in a battle to fulfill psychoactive demand with a legal product…

PEOPLE LIKE DRUGS

The chemists who have made new drugs that could be sold legally didn’t do so to try and purposefully injure or harm people. The intent of a lot of the first people who were doing this was to create psychoactive substances that could compete against alcohol, offer a safer experience and offer a legal alternative to the black market.

The ability for these people to develop guidelines and processes toward manufacturing safe products has not been nurtured in anyway. Instead, the complete opposite has happened.

Many in the communities of people who do use psychoactive substances have looked at these franken-chems with an eye of disapproval, preferring their current (illegal) substances. Outside of this community, the rhetoric has been much the same that it is for other currently illegal drugs.

On one side we have people who know what they like and are happy to break the law for it. On the other we have people who don’t think anyone can actually make a rational decision to like drugs and that these people need either be locked up or healed of their filthy addictions.

In the firing line are a small but not insignificant number of people who choose to try these new substances for a variety of reasons, many of them directly reflecting the failures of prohibition. Some of the reasons we’ve heard are that people don’t have access or don’t want to access the black market, people prefer the feeling of buying things legally, people want to avoid the invasive drug testing regimes many workplaces are now conducting or people want to legitimately explore a different substance. This last lot are probably the smaller sub-group of psychonauts, who have a careful scientific zeal to explore new psychoactive frontiers and record their journeys.

The vast majority of people are entering these markets for novel substances BECAUSE of the failures of prohibition’s many attempts to squash their inner desire to alter their consciousness with something other than alcohol, caffeine or nicotine.

We’re stuck at this point, because every stakeholder seems to talk past one another here. Misinformation is rife, harms of drugs are over-stated and held to be the primary reason why they are banned, despite other potentially harmful activities being regulated. The voice of the person who uses drugs is suppressed in order to give legitimacy to only a few, select voices – The repentant ex-drug user, the parent/sibling/friend/partner of a person who uses drugs, talking about the woes they have with that relationship or the current drug user who plays the part of drug-boogie-man, to scare people from the certain path of death and destitution that must follow all drug users.

Instead of LISTENING to the people who take these things and fostering productive discussion that takes into account the many diverse voices, ranging from those with problems to those with solutions, we have people that will speak on behalf, talk over and erase the voice of those who may say anything different to the prescribed moral values regarding the use of psychoactive substances in contemporary Australia.

Victoria’s many attempts to ban

Over the past seven years, Victorian legislators have tried nine different approaches to tackling the issue. Every single time they have attempted the approach of banning a chemical or broadening the definitions of what constitutes an illegal drug so that the dragnet of prohibition can sweep them up.

On five separate occasions, parliament had the opportunity to debate these approaches in parliament. Instead of asking the obvious question, “Does this approach even work?” all we have seen is an endless dribble of tired old rhetoric, with politicians jumping over one another to assert their ‘tough on crime‘ credentials, attack the drug using communities (scourge) and reel out that bloody, “It’s like playing Russian Roulette!” theme.

Here’s a list of the recent approaches taken to cure the human appetite for altered states.

Victorian amendments to Drugs, Poisons and Controlled Substances Act 1981 which deal with the ‘synthetic drug’ issue
BILL NAME & LINK PROVISIONS
DRUGS, POISONS AND CONTROLLED SUBSTANCES AMENDMENT (DRUGS OF DEPENDENCE) BILL 2011 Introduce Section 132AA – Allow Governor in Council to add substances to controlled schedules immediately.
DRUGS, POISONS AND CONTROLLED SUBSTANCES AMENDMENT BILL 2012 Schedule following substances: BZP, 1,4-B, GBL, GHB, MDPV, 4-MMC, AM-694, CP 47,497 C8 homologue, CP47,497, JWH-250, JWH-200, JWH-073, JWH-122, JWH-018, 3-Benzoylindoles, 3-Phenylacetylindoles, 6,6-Dimenthly-6H-Dibenzo(b,d)-Pyrans, 3-Hydroxycyclohexyl, 3-(1-Naphtoyl)Indoles, (1-Naphtlmethane)Indoles, 3-(1-Naphthoyl)Pyrroles, (1-Naphtylmethylene)Indenes
DRUGS, POISONS AND CONTROLLED SUBSTANCES AMENDMENT BILL 2013 Amend and broaden definition of ‘analogue’, Schedule following substances: UR-144, XLR-11, AKB48/APINACA, UR-12, 5F-PB-22, (Indol-3-Yl)-(2,2,3,3-Tetra-Alkylcyclopropyl)Methanones, 3-(1-Adamantoyl)-Indoles, N-(1-Adamantyl)-Indazole-3-Carboxamides, N-(1-Fenchyl)-Indole-3-Carboxamides, Indole-3-Carboxylic Acid, Quinolinyl Esters, 2C-B, 2C-C, 2C-I, 2C-F, 2C-H, Alpha-PVP, 5-APB, 6-APB, DMAA, Methylone, Pentylone, Ethylone, Butylone, Pentadrone, Dimethocaine, 25I-NBOMe, 25B-NBOMe, 25C-NBOMe, 25F-NBOMe, 25H-NBOMe,
DRUGS, POISONS AND CONTROLLED SUBSTANCES FURTHER AMENDMENT BILL 2014 Amended to ensure TGA’s SUSMP is included in Vic schedules.
Drugs, Poisons and Controlled Substances Miscellaneous Amendment Bill 2017 Proposal to add definitions for ‘psychoactive substance’ and prohibit.
REGULATION NAME & LINK PROVISIONS
Drugs, Poisons and Controlled Substances (Drugs of Dependence – Synthetic Cannabinoids) Regulations 2011 Temporary Schedule: AM-694, JWH-250, JWH-200, JWH-073, JWH-122, JWH-018, CP 47,497 C8 homologue, CP 47,497,
Drugs, Poisons and Controlled Substances (Drugs of Dependence – Synthetic Cannabinoids) Regulations 2013 Temporary Schedule: AB-PINACA, AB-FUBINACA, Indazole-3-Carboxamides
Drugs, Poisons and Controlled Substances (Drugs of Dependence – Synthetic Cannabinoids) Regulations 2014 Temporary Schedule: AB-PINACA, AB-FUBINACA, Indazole-3-Carboxamides
Drugs, Poisons and Controlled Substances (Drugs of Dependence – Synthetic Cannabinoids and Other Substances) Regulations 2015 Temporary Schedule: AB-PINACA, AB-CHMINACA, MMB-CHMINACA, AB-FUBINACA, AH-7921, Indazole-3-Carboxamides, INDOLE-3-CARBOXAMIDES, N-[(1-AMINOCYCLOHEXYL)
METHYL]BENZAMIDES
Drugs, Poisons and Controlled Substances (Drugs of Dependence – Synthetic Cannabinoids and Other Substances) Regulations 2016 Temporary Schedule: AB-PINACA, AB-CHMINACA, MMB-CHMINACA, AB-FUBINACA, AH-7921, Indazole-3-Carboxamides, INDOLE-3-CARBOXAMIDES, N-[(1-AMINOCYCLOHEXYL)
METHYL]BENZAMIDES, AZAINDOLE-3-CARBOXAMIDES, PYRAZOLE-3-CARBOXAMIDES, PYRAZOLE-5-CARBOXAMIDES, INDOLE-3-CARBOXYLATES, INDAZOLE-3-CARBOXYLATES

Think Progress

It can be really easy at this point to get bogged down in technical discussions that have very few (if any) facts associated with them. You might read that list of chems and nod your head in agreement that they be banned. Perhaps there is some good reason to ban some things too. But this is not what this legislation is about.

Fundamentally, prohibition is about curing you of any non-sanctioned psychoactive appetite. 

The exemptions in the psychoactive substances bill make clear which psychoactive substances are sanctioned and which are not. The only reason given for these obvious and scandalous inconsistencies is to note that these are already regulated by different legislation. That sounds an awful lot like sticking a bunch of things in the TOO HARD basket.

Let me get Utopian for a moment here…

What if legislators worked with experts and the community to develop legislation that looked to an alternative to prohibition, that actually works to lower the potential for harms, while allowing people to explore the beneficial aspects of psychoactive substances? Politicians are constantly and quite happy to talk up the benefits of the alcohol industry…

Victoria’s drug inquiry!

The Victorian Government has finished accepting submissions for a wide-ranging inquiry into drug law reform.

I’ve had a quick look through the submissions that have been made available so far online and only found two feral ones. The vast majority of the publicly available submissions were calling for a new approach to drug policy and law. Many of them out-rightly admitted that they are people who use drugs and they don’t believe they should be subject to criminal penalties for that choice. Many spoke of the benefits they personally experience with their chosen substance.

The Victorian Government has been aware that this inquiry has been taking place for some time. The entire point of this process is to actually look at the laws and policies that are currently in place to see if they are effective. This is exactly the sort of legislation that this inquiry is looking to address. It is taking an approach that has already been taken in a number of jurisdictions and that many have condemned as being unsuccessful and potentially making the situation worse.

This is the state of drug policy and law-making in this country.

It is reactive.

It is emotional.

It ALWAYS tries to arrest its way out of the problem, even if key people sometimes say that it isn’t.

It is defined by propaganda and misinformation, rather than rational debate, community discussion and expert advice.

It doesn’t care whose lives it ruins in its quest to save people from themselves.

And it will totally all work, if all those druggies would just stop being addicts, deviants and the dregs of society, and be more like the good, totally-always-moral and health focused law-abiding citizens that never ever take drugs.