Families and Friends for Drug Law Reform

committed to preventing tragedy that arises from illicit drug use

Federal Government Foreshadows Legal Steps to Block Safe Injecting Rooms
Bill Bush, 29 Mary 1999

The Federal Government has given veiled notice that it will block the establishment safe injecting rooms. Senator Vanstone, the Minister for Justice, revealed this in answer to a question in the Senate on Wednesday 25 May 1999. In commenting on the endorsement last week of such facilities by the New South Wales Drug Summit she stated:

"We have a very strong interest in this area, and serious consideration needs to be given to a number of matters at the Commonwealth level. The first is international obligations, which the [questioning] senator has been very keen to support in the past. The type of injecting rooms established recently in Sydney is unlikely to allow us to comply with the medical and scientific obligations in international drug conventions. The Commonwealth does have a constitutional power to enact legislation to ensure those obligations are complied with."
"I have indicated there are Commonwealth laws that the state of New South Wales cannot unilaterally dispose of. Those laws are in place and I expect they will stay there."

This threatens to head off any move by the Carr Labor Party Government of New South Wales to accept the recommendations of the Drug Summit as well as plans in two other Australian jurisdictions: the Australian Capital Territory (ACT) and Victoria. In the ACT the Liberal Carnell Government has declared itself in favour of a scientific trial of safe injecting facilities and is moving to obtain Parliamentary endorsement for that trial. In Victoria where there is substantial public and local government support for the move and the Kennet Liberal Government is actively exploring doing the same.

Any move by the federal Howard Government to block a trial of safe injecting facilities would come on top of Mr Howard’s veto of a heroin trial in 1997. He reaffirmed this in March this year when Victoria and the ACT supported by a number of other states once again urged on him the importance of conducting such a trial. Furthermore, in May 1997 Mr Howard stated that he objected to the recommendation of the Penington Inquiry in Victoria to follow the Netherlands approach of trying to separate the "soft" from the "hard" illicit drug market by decriminalising marijuana. Heroin use in the Netherlands is a sixth of what it is in Australia and even with marijuana the rate of use in the Netherlands is at least half that of Australia.

Although under the Australian constitution criminal matters and health are primarily responsibilities of the States, the federal government may legislate to prohibit action if to do so is consistent with the external affairs power. It is unclear from what Senator Vanstone said whether the federal government considers the Federal Government believes it already has legislation on the statute books or whether it would be prepared to legislate to put the necessary laws in place.

If the legislation is not in place it is unlikely that the Federal Government would be able to muster a majority in the Senate. The Democrats are in favour of a trial of safe injecting facilities and so, it seems, is the federal Labor Party. The draft illicit drugs discussion paper released by that party in April suggests that a Federal Labor government would not stand in the way of the states following this step:

"Labor notes that the approval of the Commonwealth Government is not required for a State or Territory to proceed with the establishment of safe injection rooms as the issue is one of discretionary policing by State and Territory law enforcement agencies."

In this respect the federal Labor Party might be expected to take a more vigorous opposition to the Howard Government to block a trial of safe injecting facilities than it was prepared to take in opposition to the Prime Minister’s veto of a heroin trial. The same Labor discussion paper states that "At present, Labor is not convinced by proposals for a heroin trial."

While it is fairly clear that Australia’s treaty obligations do not prohibit Australia under international law from permitting safe injecting facilities to operate, it is also at least arguable that Australian legislation could be seen as consistent with those obligations. In short the treaty obligations do not oblige Australia to take that step but they permit Australia to do so.

If the Howard Government were to outlaw safe injecting rooms it would, of course, be taking a contrary position to other countries, also subject to the conventions, in which safe injecting rooms have operated for up to a decade: Germany, Switzerland and The Netherlands to mention but three.

As is common with treaties, the language of the conventions is foggy. The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires a party such as Australia to "adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention" (art. 3(2)).

The language of this obligation is not as clear cut as it may seem. In the first place it does not require use itself to be made a crime. In the second place the obligation on a party to prohibit possession is made "subject to its constitutional principles and the basic concepts of its legal system". Thirdly, the 1961 Convention to which this obligations of the 1988 convention is subject makes clear that Australia has a great deal of discretion in whether to prohibit possession or use:

"A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the . . . possession or use of any such drug [e.g. heroin and cannabis] except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party" (art. 2(5)(b)).

In support of banning legislation, the Howard Government might also appeal to other provisions of the 1988 convention such as obligations to outlaw:

"Publicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly" (art. 3(1)(c)(iii))
"Participation in, association or conspiracy to commit, attempt to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article" (art. 3(1)(c)(iv))."

While the Government may argue that language such as this gives it latitude to pass legislation banning safe injecting rooms, it would be open to challenge its legitimacy by adducing evidence that safe injecting rooms do indeed protect rather than undermine public health and welfare.