Federal Drug-Control Laws: Present and Future

Published date01 December 1977
Date01 December 1977
DOI10.1177/0067205X7700800402
Subject MatterArticle
FEDERAL DRUG-CONTROL LAWS:
PRESENT AND FUTURE
By
ROGER
BROWN*
Drug use
is
amatter
of
substantial public interest in Australia,
and penalties tor drug offences were greatly increased in all States
in 1976. This article examines the degree
to
which the Common-
wealth can intervene in the field
of
drug-control law, a
field
presently governed mainly by State criminal law. Current Federal
involvement
is
mostly confined to Customs legislation, passed
under the interstate and overseas trade and commerce power
in section 51(i)
of
the Constitution. This placitum has been
expansively interpreted by the High Court in the customs context,
but the trade and commerce power has some limitations, and those
who have proposed comprehensive national drug legislation suggest
that it could be supported
by
the Commonwealth's power over
external affairs. These possibilities are considered, and the author
concludes that comprehensive legislation would survive consti-
tutional challenge in the High Court. Some suggestions are also
made
as
to penalties for drug use and dealing.
Introduction
In
1969 aSenate Select Committee on Drug Trafficking and Drug
Abuse was set up, the terms of reference of which invited it to make
recommendations on "legislative and administrative measures
by
the
Commonwealth to prevent and deal with drug trafficking and drug
abuse".1 Unfortunately, this invitation was ignored and the Committee's
final recommendations on alteration of the law were afew bland and
valueless generalisations. But the matter did not rest there, and after
the Committee delivered its report in 1971,
Mr
Hayden, speaking for
the Opposition in aHouse of Representatives debate on amendments
to the drug-control provisions of the Customs Act,2 suggested that the
Federal Government produce comprehensive drug legislation.sWhen
Mr
Hayden's party came into government such legislation was proposed,
and adraft considered by Cabinet in August 1975,4 though it was
rejected because of the divisiveness of the issue.5Since then, the New
South Wales Government has appointed aRoyal Commission to inquire
into the cultivation, production, manufacture, distribution, supply,
.*
B.A., LL.B. (Hons) (A.N.U.), Barrister
of
the Supreme Court of New South
Wales: Research Student in Law, University
of
Cambridge.
1Drug Trafficking and Drug Abuse, Report from the Senate Select Committee
(1971)
1.
2These amendments became the Customs Act
(No.2)
1971
(Cth).
3H.R. Deb. 1971, Vol. 75, 4284-4290.
4Australian 12.8.75.
5Sydney Morning Herald 16.8.75.
435
436 Federal
Law
Review
[VOLUME
8
possession and use of drugs,6 the South Australian Government has
appointed aRoyal Commission into the non-medical use of drugs1and
the Fraser Federal Government has announced its intention to hold its
own drug inquiry. Speaking in July 1977, the then Federal Attorney-
General,
Mr
Ellicott, said the Federal Government's inquiry would
investigate all aspects of the drug scene, including importation and
distribution, the effects of drugs on the community and prevention and
education measures.8
In
view of this activity, it
is
appropriate to
examine the present scope of federal control over drugs, and the
potential for its future development.
Before proceeding, anote on terminology
is
necessary. Drug use
is
currently ahighly emotive subject, characterised throughout the history
of its discussion by ignorance, prejudice, and, in some cases, deliberate
falsification on the part of those seeking to repress
itS
and expansive
praise on the part
of'
its supporters.
10
Ideally one would like some
neutral term to replace "drug", but at least that term does not bear the
sinister connotations (connotations, one imagines, of apresent-day
Fu
Manchu) of the words "narcotic"
or
"opiate", and these latter
terms, if correctly used, do not include most of the drugs whose use
is
currently illegal.11 Iwill therefore retain the term "drug" in its currently
accepted sense.
12
Other highly loaded terms such as drug "abuse", and
drug "trafficking, pushing,
or
peddling", will be replaced by the simple
descriptive phrases "drug use", and "drug dealing" respectively. Simi-
larly "addiction" and "dependence" will
be
replaced by "habituation"
and its appropriate derivatives, which most people will readily accept
as descriptive not only of the attachment of heroin users to their
particular drug, but also of the attachment of drinkers of alcohol and
caffeine preparations, and tobacco smokers, to theirs.
The history of Commonwealth legislative involvement with drugs
is
almost as old as Federation itself. Section 53 of the Customs Act 1901
(Cth)
provided for afine of £100 if "spirits, opium, tobacco, snuff,
cigars
or
cigarettes shall be imported except in packages as prescribed",
and by 1906 the Governor-General in Council had proclaimed opium
6Daily Telegraph 3.8.77.
'1
The
Age
1.1.77.
8Canberra Times 28.7.77.
9E.g. H. J. Anslinger. Commissioner
of
Narcotics in the U.S.A.: see the
detailed study
of
his efforts in Kaplan,
Marijuana-The
New
Prohibition (1970);
Schofield, The Strange Case
of
Pot (1971).
10
E.g. Leary, The Politics of Ecstasy (1970).
11
Anarcotic
is
adrug which induces sleep; an opiate
is
anatural
or
synthetic
derivative
of
opium. These terms are clearly most inaccurate for describing drugs
such as stimulants, like cocaine and the amphetamines,
or
psychedelics, such as
LSD or mescaline.
12
The definition adopted by the Canadian Le Dain Commission
of
Inquiry into
the Non-Medical Use of Drugs
is
in general use.
It
defined adrug as "[a]ny
substance that by its chemical nature alters structure
or
function in the living
organism": Interim Report (1971) 29-30, 431.

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