History of Drug Law in Australia - [2001] HotTopics 4
History of Drug Law in Australia
OVERVIEW OF DRUG LAW HISTORY
In the 19th century the use of now prohibited or restricted drugs was widespread and tolerated to an extent that would cause outcry today. For example laudanum, a household painkiller available without a prescription, was a mixture of opium and alcohol and was used for infants with teething problems. A marijuana cigarette was available in Australia and, to name just two of the numerous drug-laced patent medicines available, Bonnington’s Irish Moss contained opium alkaloids and Ayre’s Sarsaparilla Mixtures contained opium. In the 1890s, morphine lozenges did not come under the existing poisons legislation. Opium was seen as a valuable commodity and was exported in vast quantities from India into China to balance the British Empire’s tea trade. The Opium Wars of 1839-42 and 1856-58 broke out as the Chinese tried to resist the importation of the drug.
Some of the attitudes of the time resemble today’s most tolerant views. In 1908, the Labor leader, W A Holman protested at the use of opium being made an offence at law, when used ‘by an adult man who knows what he is doing and is master of his own actions’. In 1907, in Victoria there was a government-run home, Lara, for inebriate men. These ‘inebriates’ included a small number of morphine or cocaine addicts. Drug use and addiction were regarded as illnesses and not as criminal offences.
Modern drug law represents a shift from people making their own choices about drugs, which they were largely able to do in the 19th century, to prohibiting the use of drugs and/or restricting them through close supervision.
The reasons for this shift in Australia were not necessarily based on, for example, scientific evidence of the drug’s effects. The first legislation in Australia dealing with recreational use was directed specifically against smoking opium. There was growing concern towards the turn of the century about addictive drugs, but this had little effect on government policy until attention focused on the opium-smoking Chinese population.
This attention had less to do with any recognition of the dangers of addictive drugs such as morphine and heroin, which remained largely uncontrolled, than with prejudiced notions that particular racial groups were abusing recreational drugs by giving them to vulnerable sections of the community. Although a good source of tariffs in the 19th century, opium smoking came to be seen as a distinctive habit of the Chinese community, whose very existence, let alone their particular drug habits, faced restriction. A campaign developed against what the press luridly described as the Chinese opium den culture, where young white women were supposedly led astray.
In fact, the Chinese themselves, with their special history of drug abuse problems, campaigned to have the opium trade outlawed. In Sydney, Quong Tart, who ran a fashionable tea-house and was highly respected, collected 4000 signatures to petition the government. Nevertheless the first drug law in Australia focused on drugs in the hands of a racial minority and not on the addictive properties of drugs themselves. Those drugs not used by the Chinese did not attract laws forbidding their use.
Pre-Federation legislation enacted by some of the States’ colonial governments also specifically protected Aborigines from being paid in opium. It did not prohibit the supply of drugs to other people. In general, the European population did not believe that its own consumption of drugs needed to be controlled although there were early campaigns against the use of addictive drugs in the broader community, along with the Temperance Movement calling for prohibition of alcohol.
Federation eventually brought some important changes, including the Commonwealth’s involvement in international law and its obligations under international treaties. Our policy (see National Illicit Drug Strategy) has moved towards harm minimisation while our prohibition-based law still reflects its historical links, through international law, with American zero tolerance policies.
The USA’s continuing influence, through the research it funds, keeps zero tolerance to the fore, although overdose deaths in the US have doubled in the last ten years.
SOME SIGNIFICANT DATES FOR DRUG LAW IN AUSTRALIA |
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| 1856 | Victoria imposes duty on opium: 21 890 kg imported in that year, earning £56 979 in duty. The goldrushes and the opium smoking Chinese population they attracted made imposts on opium a good source of revenue. |
| 1891-1895 | Some early opium bills failed. For example, opium growing farmers of Bacchus Marsh defeated the passage of a bill ‘to restrict and regulate the sale and use of opium’. The Sale and Use of Opium Act 1891 (Qld) controlled opium distribution, essentially to protect Aborigines from being paid in opium Opium Act 1895 was applied to South Australia and the Northern Territory, making it an offence to sell or give to ‘any Aboriginal native of Australia’. |
| 1897 | Act No 17 of 1897 (Qld) forbade sale of opium to Aborigines. Sale of alcohol to Aborigines carried a £50 penalty, opium a £100 penalty. |
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| 1901 | States give up power to levy customs duties although they retained some Commonwealth duties for some time. Customs Act 1901 prohibits import of non medicinal opium to stop recreational use spreading beyond Chinese community. Collector of Customs grants licences to doctors and pharmacists. |
| 1905 | Commerce (Trade Descriptions) Act 1905 (Cth) - controlled packaging, marking and marketing of patent medicines (medicinal opium, morphine, heroin, cannabis and others). Premiers Conference – decision made to take action against non-medicinal use of opium under pressure from feminist and church groups, as more Europeans were believed to be smoking opium. Opium Amendment Act 1905 (SA) – risk of fine and imprisonment if non-medicinal opium sold, bartered or given to any race, ‘Asiatics’ risk deportation. Opium Smoking Prohibition Act 1905 (Vic) - campaign supported by Chinese merchants but focuses on Chinese opium smokers. |
| 1907 | Royal Commission in Secret Drugs, Cures and Foods presented to Commonwealth gives first warning of dangers of heroin, used as cough mixture. Commission noted heroin in medicine not controlled. |
| 1908 | Police Offences Act (NSW) – offence to sell, smoke or possess preparations of opium for smoking. |
| 1910 | Joint Commonwealth State Conference - drugs for therapeutic purposes; dispensing and labelling of medicines. Customs Act s 233B(1) - non medicinal opium wide-ranging offences. Shanghai International Opium Conference was held at the insistence of USA, supported by European powers, China, Japan, Siam and Persia. |
| 1912 | Hague International Convention on Narcotics - control production and distribution of raw and prepared opium (morphine and cocaine); required parties to Convention to ‘examine possibility of making it a penal offence to be in illegal possession of’ drugs covered by the treaty. |
| 1914 | Dangerous Drugs Act (UK) - adopts terms of Hague Convention re control of drugs in treaty. Western powers more in touch with opium producing countries. |
| 1920 | Australia implements Hague Convention |
| 1925 | Geneva Convention adds cannabis to Hague Convention list, sets up permanent Central Opium Board to supervise international trade in controlled drugs. |
| 1926 | Opium Proclamation prohibiting coca leaves and Indian hemp. |
| 1931 | Convention on the Limitation Period in the International Sale of Goods (New York) - signatories to give estimates of legitimate controlled drug needs. Embargoes against signatories exceeding estimates. |
| 1953 | Ban on medicinal use of heroin. Overprescription/unnecessary prescription by medical profession prohibited. |
| 1961 | Single Convention on Narcotic Drugs 1961 (New York) - schedules of drugs adopted at conference of 71 nations: Schedule I – opiate narcotics, cocaine and cannabis for medical and scientific purposes. Schedule IV – cannabis, cannabis resin and heroin ‘particularly dangerous’, requiring more stringent controls. Signatories to Convention to adopt whatever methods necessary. Article 36(1) requires signatories to make production, possession, importation and other activities serious offences to be punishable by imprisonment (when committed intentionally). |
| 1967 | Appendix to Narcotic Drugs Act 1967 adopted Single Convention. Domestic manufacturers of narcotic drugs licenced. |
| 1971 | Convention on Psychotropic Substances extended beyond narcotic drugs to cover drugs not listed in Single Convention Schedules. Dealings to be controlled for medical purposes; more flexibility than Single Convention. |
| 1972 | Protocol to Single Convention - treatment or rehabilitation as alternative to conviction or punishment. |
| 1976 | Psychotropic Substances Act 1976 incorporated 1971 Convention. |
| 1984 | South Australia decriminalised minor cannabis offences with a fine in expiation of a charge for cannabis use, referral for assessment with option of treatment and rehabilitation as alternative to prosecution. |
| 1985 | NSW comprehensive schedule of drugs prohibited except on prescription. |
| 1992 | ACT - small amounts cannabis police discretion re fine (NT follows in 1995). |
| 1999-2000 | NSW small amounts of cannabis - police to direct offender’s attention to harms and treatment - police cautioning system. NSW trial of supervised heroin injecting rooms, modifying prohibition. Some of the information and points of view in this Table are taken from John Lonie, A Social History of Drug Control in Australia, Research Paper 8, Royal Commission into the Non-Medical Use of Drugs South Australia, 1979 (The Sackville Commission) |