JOHN MARSDEN MEMORIAL LECTURE 2012

Sydney, 15 November 2012

___________________________________

The times they are a-changing:

where to for the criminal law in NSW?
Nicholas Cowdery AM QC FAAL
Former Director of Public Prosecutions, NSW
____________________________________________________

The rumbling sounds you can hear from below this Masonic Centre are not only from the Sydney
underground railway it isalso the sound of John Marsden turning restlessly in his grave. To have a
former DPP deliver the John Marsden Memorial Lecture really is a sign that the times are a-changing
but I hope, at least in that respect, for the better.
It is a great privilege to be able in this way to acknowledge Johns adherence to principle in the
conduct of his criminal law practice. I know from often painful, direct experience that he was always
concerned to see that the criminal law was applied appropriately and, of course, beneficially to his
clients. One can only imagine how he would have reacted to some of the changes around us at
present.
Because change is in the air and in some aspects it has already landed. Of course, the criminal law
is in a constant state of change and so it should be. As society develops and changes the rules by
which we live need to be adapted. It will usually be the case that the law changes a little behind the
pace of social change and that is not a bad thing. The law should be somewhat conservative in its
development. But sometimes it jumps ahead too precipitately, usually in response to some shortterm political imperative. It is to be hoped, of course, that all change equals improvement but
regrettably that is not always so.
This evening I intend to review some of the changes we are presently experiencing but not all, by
any means. There is much else to discuss that cannot be addressed in the time available tonight. As I
touch on five areas (and I can do so only briefly) I would silently pose a few questions along the way.
The areas are bail laws, sentencing laws, the right to silence, serious violent offenders and drug laws.
Some of the questions that arise are:
- Is change required?
- Does principle support it?
- Are principles being violated by change or even by reaction against change, perhaps in
repetitive ways?
- What improvements will change make?
- What additional harms will it cause?
1

BAIL REFORM
This audience would know that in the criminal justice process in our jurisdiction a person arrested
and charged with an offence is brought promptly before a magistrate in order for his or her
disposition pending a court hearing to be decided will he or she be remanded in custody to await
the next court date, or be released on bail? And if released, on what terms and conditions? Similar
decisions need to be made at various later stages of the hearing of a criminal matter. Its a very
important issue.
Before 1978 in NSW all those proceedings were dealt with under principles created (with a very
minor legislative contribution) by the common law law made by judges as the courts deal with
individual cases and superior courts identify and confirm the rules that should apply generally in
particular circumstances. For all the benefits the common law has brought us, however, it can lead
to uncertainty and inconsistency, qualities not beneficial to criminal justice and to community
confidence in the process.But in the pursuit of certainty and consistency, we must be careful to
adhere to principle and act always in the general public interest.
Bail is conditional liberty. Historically and theoretically it is the release of someone from the lawful
custody of law enforcement officers into the custody of sureties, persons who are bound by contract
to produce that person to answer the charge and who will suffer a forfeit if they do not. In practice
these days in many cases a surety may not be required from other persons, but conditions may be
imposed on the accused person including conditions requiring forfeiture if not complied with.
It must be clearly understood (and it is often forgotten by commentators) that bail has nothing
whatsoever to do with punishment, which comesto be considered only after conviction. A person
being considered for bail still carries the presumption of innocence, which is not a glib slogan.
Traditionally there are three tests that must be applied before an order is made granting or
withholding bail:
-

What are the prospects of the accused appearing at court the next time he or she is required
to do so? Is there a real risk that the accused will seek to flee to avoid the consequences of
court action?
Is there a prospect that the accused will commit further offences if released into the
community?
Is there a prospect that, if released, the accused will interfere with evidence or seek to
intimidate witnesses?

BAIL ACT
In 1978 a small legal revolution occurred in New South Wales when the Bail Act 1978 (No 161) was
passed by the NSW Parliament. It was revolutionary because, for the first time, it put on a firm
statutory basis the procedures that would apply to bail and the principles that would be applied by
the authorities vested with power. It was a codification of bail law, but still subject to interpretation
(if required) in the light of the common law principles that had evolved. The Act was prompted
strongly by a large increase in the number of persons being remanded in custody and refused bail, in
part because of common law uncertainty, butin larger part because ofprevailing harshness about the

granting of bail. The Act was a neat and comprehensive treatment of the issues relating to bail and it
survived that way for some time.
But currently there is a mishmash of provisions in the Bail Act, brought about by incessant minor
amendments to the Act, especially in the last 15 years or so. They seem to have been the product of
two forces. The first was the late and unlamented governments general tough on crime approach
that conflated bail with punishment and directed its legislative action into making it increasingly
difficult to obtain bail. The second was the governments sensitivity to publicity and pressure from
the radio shock jocks, tabloid media and the Police Association that saw uncoordinated, illconsidered, piecemeal legislative responses to individual cases (such as juveniles breaching bail
conditions, breaking curfews or committing further offences while on bail and attracting tabloid
media publicity). It was made more difficult to obtain bail by enlarging the category of cases carrying
a presumption against bail, decreasing the cases where there were presumptions in favour of bail
and requiring exceptional circumstances to be demonstrated in an ever-growing number of
situations. Procedural obstacles were also placed in the way of bail applicants.
As well as creating confusion and disorder in the application of the Act and making the task of
orderly bail determination almost impossible for police and courts, there were consequences for the
rate of imprisonment in NSW (shades of 1978!).
At the Australia and New Zealand Critical Criminology Conference on 2 July 2010 I said this about the
situation at that time:
in NSW 25% of the prison population is unsentenced on remand. In Victoria the figure is
18% (where the delays in coming to trial, however, are significantly greater than in NSW).
The Bail Act 1978 (NSW) was passed substantially to address a burgeoning number of
prisoners on remand. Presumptions in favour of bail were enacted in some cases and
offences and situations stipulated where no presumption applied or there was a
presumption against bail. We seem to have come full circle with the progressively legislated
removal of presumptions in favour of bail and the enactment of presumptions against
often in response to individual and atypical cases that have received publicity. Many people
refused bail are ultimately acquitted and many receive non-custodial dispositions of their
cases. There is no recourse to compensation in such circumstances (as there is in some other
countries, especially in Scandinavia).
The editorials in the Sydney Morning Herald (SMH) and The Age of 20 April 2010 had
referred to the Disappearing right of bail and to the matters raised above. They said: As
the NSW government steadily piles on new categories of serious crime in response to the
latest crime scare, ramps up mandatory sentences, restricts bail eligibility, and most
recently, throws away the key for convicts perceived as unrepentant, we are entitled to ask
what returns in safety we are getting from our billion-dollar-a-year jail industry. On a more
humane calculation, we should be asking what damage is being done to individuals and
society by this pursuit of vengeance Of course, there will always be a few who go out and
commit new crimes while on bail or parole, and set the tabloid dogs barking again at the
Attorney General. If jail worked as reform, the lock-em-up philosophy might have more

appeal. Unfortunately, the statistics show NSW also has a much higher recidivism rate than
Victoria.
The Bail Reform Alliance in NSW has been set up to address these issues, headed by a
former magistrate.
A NSW Parliamentary Briefing Paper1 examines the bail issue in great detail. It concludes:
Changes to bail laws since 2002 have followed the dominant trend of making it more
difficult for accused persons to obtain bail: both in relation to a range of offences, and where
the accused person is regarded as a repeat offender. These changes have been justified on
the basis that they provide greater protection for the community against the risk that such
persons will commit offences while awaiting trial. However, critics have argued that the
changes have largely been ad hoc responses to particular crime incidents, and that a good
case has now been made out for reforms that have undermined an accused persons right to
the presumption of innocence.
It is still the case in 2012 that about 25% of the NSW prison population are unconvicted, bail refused.
About one third of adults on remand (ie refused bail) will be acquitted or sentenced to non-custodial
penalties and there is no compensation available to them for their time in custody.
More than half the juveniles in custody are there not because they have been found guilty of an
offence, but because bail has been refused. They are involuntary students of the university of
crime as a consequence.
REFORM
On 9 June 2011 the government announced a review of bail law by the Law Reform Commission2. It
was originally due to report by the end of November 2011 but, following further specific requests by
the Attorney General for additional inquiry, that date was extended to 29 February 2012.

Bail law: developments, debate and statistics, Briefing Paper 5/2010, Lenny Roth, NSW Parliamentary
Library Research Service, June 2010
2

Terms of reference: Pursuant to section 10 of the Law Reform Commission Act 1967, the Law Reform
Commission is to review bail law in NSW. In undertaking this inquiry the Commission should develop a
legislative framework that provides access to bail in appropriate cases having regard to:
1.
2.
3.
4.
5.
6.
7.

whether the Bail Act should include a statement of its objects and if so, what those objects should be;
whether the Bail Act should include a statement of the factors to be taken into account in
determining a bail application and if so, what those factors should be;
what presumptions should apply to bail determinations and how they should apply;
the available responses to a breach of bail including the legislative framework for the exercise of
police and judicial discretion when responding to a breach;
the desirability of maintaining s22A;
whether the Bail Act should make a distinction between young offenders and adults and if so, what
special provision should apply to young offenders;
whether special provisions should apply to vulnerable people including Aboriginal people and Torres
Strait Islanders, cognitively impaired people and those with a mental illness. In considering this
question particular attention should be given to how the latter two categories of people should be
defined;

On 13 June 2012 the Attorney General tabled in Parliament the Law Reform Commissions (LRC)
Report on Bail, Report 133: see
http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_r133toc

Addressing the purposes of bail the Commission said in the Executive Summary of the Report:
Background and principles (Chapter 2)
0.3 Bail law is part of the criminal justice system. It provides the framework for decisions by
the police and the courts concerning the detention or release of a person while proceedings
are pending.
0.4 Bail law has a role in implementing three of the purposes of the criminal justice
system: the protection and welfare of the community by preventing further serious
offending; the protection of particular individuals who might be at risk; and
protecting the integrity of the trial process, by ensuring that the accused person
appears at court to be dealt with according to law and by avoiding interference with
the course of justice. Our recommendations are directed to the promotion of these
purposes.
0.5 Other functions of the criminal justice system are not the province of bail law. Such
functions include the denunciation of offending behaviour, the punishment of
offenders, and deterring others from offending.
0.6 The criminal justice system has embedded within it the value of personal liberty and a
suite of cautionary concepts and principles which recognise and protect the value of liberty.
These include the presumption of innocence, no detention without legal cause, no
punishment without conviction by due process, a fair trial, individualised justice and
consistency in decision making, and the special consideration required in relation to young
people.
0.7 The community has high expectations of the criminal justice system. Bail legislation
cannot reflect all the ways in which the criminal justice system aims to protect the
community. Because bail is part of the criminal justice system, it should be subject to the
constraints embedded in the criminal justice system as a whole. In setting the scope of bail
legislation, it is necessary to find a balance between achieving the purposes of bail law and
recognising the constraining principles and concepts to which the criminal justice system as a
whole is subject.
The Commissions principal approach (in the detailed Recommendations following the Executive
Summary) may be summarised as follows:

8.

the terms of bail schemes operating in other jurisdictions, in particular those with a relatively low and
stable remand population, such as the UK and Australian states such as Victoria, and of any reviews of
those schemes; and,
9. any other related matter.

8.1 In a new Bail Act, the scheme of presumptions, exceptions and exceptional circumstances
in the current legislation should be replaced with a uniform presumption in favour of release
applicable to all cases except those covered by an entitlement to release and appeal cases.
Cases subject to an entitlement to release (the more minor offences and circumstances) and bail
pending appeal are addressed separately in the Report. In a limited class of more serious offences
the presumption in favour of release may not operate.
REACTION
When the Report was tabled the law and order brigade immediately mounted the barricades, led by
the radio shock jocks. In a column in the SMH on 15 June 2012 Richard Ackland wrote:
Who would have picked the hard-line Christian warrior Attorney-General, Greg Smith, as a
leftie masquerading as a conservative. Thats the verdict of 2GBs morning show judge and
juror, former taxi driver and game caller Ray Hadley, talking yesterday about the NSW Law
Reform Commissions review of the Bail Act
His studio claqueur was the Telegraph reporter Andrew Clennell, who thought this was one
of the most left wing reports on law and order. The opening line of his story yesterday said:
Accused murderers and rapists would be allowed out of jail while awaiting trial, under an
overhaul of NSW bail laws
Talk about parallel universes. Ray and Andrew must have a version of the report different to
the one everyone else is reading
That it is so overdue for a clearer and fairer Bail Act hardly needs to be stated. The
cacophony of populist fear-mongering against such a plan shows the uphill battle Smith faces
in getting even the most elementary improvement through cabinet, let alone Parliament.
The Attorney Generals battle has continued and he has taken the fight up to the critics. On 16 June
2012 there was a piece on page 3 of the SMH supportive of Smith. On 18 June the SMH editorial
said:
Reversion to the presumption in favour of bail except at the more serious end of alleged
criminal activity is urged by an extensive study (commissioned by Smith) of the Bail Act by
the NSW Law Reform Commission. But it is resisted by elements of the police, who shortsightedly believe keeping the accused locked up until acquittal lessens criminal activity, and
by media elements hell-bent on portraying bail as an enemy of community order.
For much of the past 20 years, politicians have been hard-wired to view the latter as an
impregnable influence on public opinion. The result was a testosterone contest in which both
sides of the political divide strove to outdo the other in showing just how tough and
unforgiving they could be in punishing recalcitrant.
But bail and its refusal were not intended as reward and punishment. The latter is the
function of sentencing; in other words, once the allegation has been tested at trial and the
accused has been convicted. That public debate and slavish politicisation allowed the role of
bail to be subsumed in a law and order auction is more than misguided. It goes beyond poor
6

public grasp of legal principles and historic protections to an unhealthy and unhelpful
vengefulness and disregard for individual rights, so long as the individual is someone
unknown to the observer.
The criminal justice system has embedded within it the value of personal liberty, says the
Law Reform Commission findings tabled in Parliament last week. These include the
presumption of innocence, no detention without legal cause, no punishment without
conviction by due process, a fair trial, individualised justiceand consistency in decisionmaking, and the special consideration required in relation to young people.
Fine aspirations. And, yet, they seem increasingly to evoke characterisation of their
upholders as weak, soft, woolly-headed and reckless.
THE FUTURE
The LRCs Report presents compelling arguments for reform of the NSW bail laws. It draws attention
to the fundamental principles, the processes that must be available and the manner in which the
powers should be exercised.
The soft or tough on crime arguments will no doubt continue (it is too much to hope that
rationality might prevail throughout the communitys wide range of commentators) but another
slogan, smart on crime, needs to be heard more often. When laws, such as the Bail Act, become
instruments of injustice (in this case as a result of incessant political meddling), it is time for change.
The LRC Report provides an opportunity for such reform and it is to be hoped that the Government
will seize the opportunity to act in a principled way.

SENTENCING LAW REFORM

Sentencing law has also been a victim of incessant legislative meddling over the last two decades or
so. I venture to suggest that under the present provisions, including the requirements of the Crimes
(Sentencing Procedure) Act 1999, it is now practically impossible for judges and magistrates to
sentence people lawfully and correctly in all cases. As DPP it was my task to review questionable
sentences and decide whether or not to appeal on the basis of manifest inadequacy. It was an
entertaining intellectual sideline to identify the inevitable errors made by judges and there were
many (but not every error led to an appeal, of course). Legislative interference has created another
mishmash of inconsistent, conflicting provisions, many of which cannot be logically resolved.
In a paper delivered to a Legal Aid Commission conference in 2010, the Chief Judge of the District
Court, Justice Blanch, put forward as one reason for the growth in the gaol population at that time
the operation of the Standard Non-Parole Period regime(introduced in 2002 as a compromise to
head off mandatory sentencing, with the SNPPs being taken from the median NPPs recorded in NSW
Judicial Commission statistics). The stated objective of the scheme was limited to promoting
consistency and transparency in sentencing3, but the intention of its proponents must also have
been to increase sentences for the offences listed. The standard non-parole periods prescribed
3

Explanatory Note to the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill
2002

range from 17% to 70% of the maximum penalties prescribed. While, following the decision in R v
Way4, judges skilfully avoided the worst of the regime, there is no doubt that it has resulted in more
and longer sentences of imprisonment. [The decision of the High Court in the case of Muldrock5 later
put the cat among the pigeons and the flock is still being re-caged.] In Monograph 33 (May 2010)6
the NSW Judicial Commission reported in respect of SNPPs that:
-

the use of full-time imprisonment increased, at least in respect of items 9A and 9B (from
37.3% to 59.3% and from 57.1% to 81.3% respectively);
lengths of non-parole periods and full terms increased in the 4 items measurable, the largest
being of 125% and 60% respectively for offences against section 33 of the Crimes Act 1900;
uniformity and consistency of sentences improved;
cases in which there had been pleas of guilty (for which the scheme was not designed) also
showed increases in sentences (apparently as a result of an upwards shift in sentencing
patterns generally).

The Chief Judge said in 2010:

40 years ago murderers received a life sentence but most were released after serving 10
15 years and that was generally regarded as the most serious of offences. It was unusual for
a prisoner to spend more than 20 years in gaol. It was then generally accepted that prisoners
became institutionalised after serving 5 years in gaol and that after 10 years, they would
have extreme difficulty coping with living by themselves in the community. I suspect little has
changed in that regard. We also should ask if our community is now any safer and less prone
to crime because of the increase in sentences.
The upwards shift in sentencing over time had been substantially accelerated by the Sentencing Act
1989 and the introduction of truth in sentencing. It also brought in true life sentences, of which
there are presently over 50 being served (and some lifers have died in custody).
The Chief Judge asked if we should review a number of practices, including amending or abolishing
the Standard Non-Parole Period regime:
As I have said, gaol sentences must be imposed in many cases and in some the sentence
should be substantial but the real question is how much is enough. You would have a good
understanding of just how difficult serving time in gaol is. As you know, in the gaol
population there is an over representation of people with mental disabilities, people with
very low IQs, people with personality disorders and people from severely disadvantaged
backgrounds. That is a difficult environment in which to live.
Sir Winston Churchill said in 1912: The mood and temper of the public in relation to the
treatment of crime and criminals is one of the most unfailing tests of the civilisation of a
country. A calm, dispassionate recognition of the rights of the accused and even of the
convicted criminal (is a) sign and proof of the living virtue in it.
The question how much is enough assumes real significance in the context of a prison budget
of more than a billion dollars a year.

[2004] NSWCCA 131

Muldrock v The Queen [2011] HCA 39
6
The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales
5

Recidivism is a significant issue in NSW. Ross Gittins in his SMH column of 28 April 2010 said:
how would you go about reducing recidivism? Youd do it by putting a lot more effort into
rehabilitation, while people were in jail or after theyd been released.
Would it work? According to a big US study, yes it would. It finds (in descending order of costeffectiveness) vocational education in prison, intensive supervision using treatment-oriented
programs, primary or secondary-level education in prison, cognitive behavioural therapy,
and drug treatment in the community are particularly effective.
These programs would have a cost, but theyd end up saving a lot more than they cost. And,
of course, as well as saving the taxpayer money theyd achieve a reduction in crime the
thing we supposedly care most about.
The one thing they wouldnt be is politically sexy which may explain the publics, the
medias and the politicians lack of interest.
Sentencing laws have increased the number and length of custodial sentences without any
corresponding reduction in crime. Crime rates are steady or falling in almost all major categories and
have been for a long time, but that is not due to increased imprisonment indeed, it might be
argued, that is in spite of increased imprisonment; because the recidivism rate in NSW is over 40%,
well above that in comparable jurisdictions such as Victoria (closer to 30% and with a much smaller
prison number per head of population, around half of that in NSW).
The process of sentencing itself, by reason of the myriad legislative provisions (including section 21A
of the Crimes (Sentencing Procedure) Act 1999) that must now be taken into account, is virtually
never correctly carried out. Once we understood what the common law required of sentencing and
it could be expressed in many cases in half a page. Now judges must take scores of pages to tick the
boxes, in which multiple errors will usually be discernible, no matter how conscientiously the
procedure is carried out.
Fortunately, the new Government has moved on this, too. A Law Reform Commission report on
sentencing law was initially due by the end of October 2012, but the reporting date has been
extended to March 2013. A great deal of work is involved and much has been done (and the
progress can be seen on the Law Reform Commission website).
Sentencing will probably always be an area of much debate. On 21 January 2011 Professor
MirkoBagaric of Monash University published a piece in The Australian arising out of the High
Courts decision in Hili v The Queen; Jones v The Queen7. He referred to the High Courts affirmation
of the need for consistency in sentencing (but, it is to be noted, consistency in the application of
relevant legal principles, not in numerical equivalence of sentences) and referred to about 300
variables that supposedly either go to increase or decrease a penalty, and some (such as intoxication
and gambling addiction) can do both. This, he said, allows judges to pluck out a vast array of
principles to give effect to their judicial whim. He made the rather radical call for all current
aggravating and mitigating factors to be abolished and for a start to be made from scratch in
developing a system of smart sentencing. He proposed that:

[2010] HCA 45

- there be a matching of the seriousness of the crime with the harshness of the penalty;
- the main determinant in setting the amount of punishment should be the principle of
proportionality which prescribes that the pain inflicted by the punishment should be
commensurate with the harm caused by the offence;
- distortions to this principle such as rehabilitation, community protection and deterrence
should be discarded;
- consequently, most sentences should be reduced, except for offenders with high rates of
recidivism;
- the result would be higher sentences for serious sex and violent offenders and lower
sentences for most other offences.
He then proposed predetermined grid sentencing with mandatory sentences for crimes that cause
the most distress for victims. Something like this was being mooted in Victoria we wait to see what
the new government there develops.
This rather mixed bag of analysis and proposals sent me to an article that Prof Bagaric co-authored
in the Criminal Law Journal in June 20038. It set out a blueprint for reform that would result in
reduced penalties and would therefore be unlikely to be politically attractive. Nevertheless, the
authors put forward seven steps to sentencing reform:
1

assume that punishment is justifiable;

pick a theory of punishment;

ignore public opinion;

4
identify the objectives of sentencing: incapacitation, deterrence and rehabilitation? [of
which only absolute general deterrence was endorsed];
5

make the punishment fit the crime (both being measured in terms of unhappiness or pain);

aggravating and mitigating circumstances: scrutinise each of them; and

ongoing reform.

Is this the future for sentencing? Is this reform? (The Professor also believes that sentencing does
not deter and he may be right about that, at least9.) We wait to see what the LRC produces.

THE RIGHT TO SILENCE

The so-called right to silence is a right only to the extent provided by Article 14(3)(g) of the
International Covenant on Civil and Political Rights (ICCPR) which provides a right to an accused:
8

(Volume 27, Number 3)

See the recent report (13 March 2012) from the Bureau of Crime Statistics and Research: The Effect of Arrest
and Imprisonment on Crime available at: www.bocsar.nsw.gov.au

10

(g) Not to be compelled to testify against himself or to confess guilt.

Otherwise, the expression really refers to a collection of immunities that suspects and accused
persons enjoy in the course of the criminal justice process: immunity from adverse cooperation in
the investigation, from self-incrimination, from torture and mistreatment directed to obtaining
confessions and from being required to testify in proceedings against them.
A frustration arising for investigators is the refusal of victims of crime not perpetrators to
cooperate in investigations: for example, targets of shootings in southwestern Sydney recently
suspected of being connected with drug distribution turf wars. In response to those frustrations
(so it seems to me) the NSW Government is now moving to qualify the right to silence. Consultation
about proposed reforms has been very brief.
In his media release of 12 September 2012, the Attorney General briefly announced theproposed
amendments this way:
Last month, the Government announced plans to allow juries and judges to
draw adverse inferences against alleged criminals who refused to speak to
police but later produce evidence at trial.
The criminal justice system in New South Wales is based on the English common lawsystem of
criminal justice. That system of justice has been described, with some justification at least so far as
accused persons are concerned, as thegold standard of criminaljustice. Most criminal law
practitioners would regard that gold standard asbeing based on a handful of fundamental principles,
including: the presumption ofinnocence; trial by jury; the requirementfor the Crown to prove an
allegation beyond reasonable doubt; theright to legal representation; the right to confront an
accuser by cross-examination; and the (so-called) right to silence.
The NSW Bar Association (among others) argues that the current legislative scheme does not require
reform and points to a number of examples of disclosure by the defence. It submits that the
example most frequently used in the media discussion of this proposal isevidence of an alibi not
disclosed at the time of the investigation but later relied on at trial. It points out, however, that
accused persons have no right to call alibi evidence unless they have given notice inwriting no later
than 42 days before the matter is listed for trial (s 150 of the Criminal Procedure Act 1986). This
notice must include the name and address of any proposedalibi witness if known to the
accused.Evidence of alibi may be called where no or late notice has been given, but only with the
leaveof the court which is rarely given without also giving the prosecution an adjournment to give
thepolice an opportunity to investigate the alibi. So there does not seem to be a pressing need to
change all that.
Additionally, where the defence proposes to lead evidence of substantialimpairment of mental
functioning in defence to murder, the defence must provide notice of the name and address of the
witness and the particulars ofthe evidence proposed to be given (s 151of the Criminal Procedure Act
1986). Inpractice, the effect of this provision is that the defence serves psychiatric reportsrelied on
by the accused prior to the trial.
Where the defence of mental illness is relied upon, currently there is no statutory requirement for
the defence to supply to theprosecution psychiatric reports; but inpractice, in almost every case
where a defence of mental illness is relied upon, defence legal representatives will serve on the
prosecution prior to trial copies of anypsychiatric reports to be relied upon by the accused in an
attempt to persuade theprosecution to accept apleaof not guilty by reason of mental illness.

11

In addition, there already exists a power of the District and Supreme Courts to orderpre-trial
disclosure and other case management procedures under Division 3 of Part 3 of the Criminal
Procedure Act 1986. Inpractice, only in a handful of cases has the prosecution made an application to
the courts for such pre-trial disclosure.
All this, says the Bar Association, strongly indicates that there is no need for more extensive pre-trial
disclosure or incursion upon the right to silence.
Another justification given for the proposed limiting of the right to silence is thedifficulty facing
police, as I have said, with drive-by shootings; becausevictims and eye-witnesses sometimesrefuse to
cooperate with the police. The watering downof the right to silence, however, is really irrelevant to
such cases, because only people suspected of or charged with crimes have the right to silence. An
eye-witness to a crime and, indeed, any person in possession of information which might be of
relevance to police in apprehending an offender, who does not bringit to the attention of the
authorities, commits an offence against s 316 of the Crimes Act 1900.
The current proposal in NSW is said to be modelled on the Criminal Justice and Public Order Act 1994
(UK). Section 34 of that Act permits an adverse inference to be drawn where adefendant fails to
mention, when questioned under caution or charged, facts laterrelied upon by him or her in court.
However, the English legislation is viewed by many as unsuccessful and problematic.The English
Court of Appeal in a joint judgment in R v Beckles10said that s. 34 had been justifiably described as a
notorious minefield.
Thecomplexity of the requirements to be satisfied before the adverse inference is drawn are
illustrated in the earlier case of R v Argent11at 32-33:
What then are the formal conditions to be met before the jury may draw suchan inference?
In our judgment there are six such conditions. The first is thatthere must be proceedings
against a person for an offence; that condition mustnecessarily be satisfied before section
34(2)(d) can bite and plainly it wassatisfied here. The second condition is that the alleged
failure must occurbefore a defendant is charged. ... The third condition is that the alleged
failuremust occur during questioning under caution by a constable. ... The fourth
condition is that the constable's questioning must be directed to trying todiscover whether or
by whom the alleged offence had been committed ... Thefifth condition is that the alleged
failure by the defendant must be to mentionany fact relied on in his defence in those
proceedings. That raises twoquestions of fact: first, is there some fact which the defendant
has relied on inhis defence; and second, did the defendant fail to mention it to the
constablewhen he was being questioned in accordance with the section? Being
questions of fact these questions are for the jury as the tribunal of fact toresolve. .. The sixth
condition is that the appellant failed to mention a factwhich in the circumstances existing at
the time the accused could reasonablyhave been expected to mention when so questioned.
The time referred to is thetime of questioning, and account must be taken of all the
relevantcircumstances existing at that time. The courts should not construe the
expression "in the circumstances" restrictively: matters such as time of day,the defendant's
age, experience, mental capacity, state of health, sobriety,tiredness,knowledge,
personalityandlegaladviceareall partoftherelevantcircumstances; and those are only
examples of things that may be relevant.
The proposed NSW legislation makes it a precondition of drawing an inference against the
10
11

[2005] 1WLR 2829

[1997] 2 Cr APP R 27

12

defendant that at the time of questioning he or she was allowed the opportunity toconsult a lawyer
about the effect of failing or refusing to mention afact later reliedupon by the defendant (clause 89A
(2) (b)). The proposal puts the defendant's lawyer (usually at this stage a solicitor) in adilemma. If the
lawyer tells the defendant that he or she runs the risk of an adverseinference being drawn from the
fact that he or she has exercised his or her right tosilence, that provides justification for such a
direction being given. However, if the lawyer simply tells the defendant to exercise his or her
common law right to silence, aproposed statutory pre-condition for the adverse inference is
withdrawn. It is not easy to know what approach NSW courts would take where a defendant is
advised by his lawyer to exercise his right to silence and follows this advice. There has been some
English judicial consideration of that question, too.
An important problem with the curtailment of the defendant's right to silence isthat there isno
requirement for the police to inform the defendant of the evidence available against him or her. For
example, it is standard practice in cases where the police know that the defendant's fingerprints
have been found at a particular location (forexample in a house-breaking) for a police officer to ask
the defendant if he orshe has ever been in the street or suburb where the fingerprint was located.
Thedefendant might well deny being in the street or suburb, having no idea of thesignificance the
prosecution might later attach to the answer. The fact that a defendant has had access to legal
advice does not really assist thedefendant. The defence lawyer, at the time when the defendant is
interviewed by thepolice, will normally have no more information about the evidence the police
have against the defendant than the defendant himself or herself. This will particularly be so when
the only contact the lawyer has with the defendant is by telephone. In remote areas of New South
Wales, where legal resources are scarce, access to lawyers by way of telephone will frequently be
the only access to legal advice available and this will disadvantage defendants in remote areas.
It is proposed by the government that there be atrial telephone advice line staffed by lawyers to
advise people of the implications of remaining silent. This may be contrasted with the English
scheme where government funded duty solicitors were established serving in police stations,
principally.
The NSW Bill specifically states that the adverse inference provision does not apply todefendants
who, at the time of questioning, are under 18 years old or who have acognitive impairment. This
provision is both welcome and necessary; but there are other vulnerable groups in the community
who are notprotected, such as people with a limited understanding of English.
The government's proposal represents a significant deviation from the gold standardof criminal
justice. The proposal is contrary to views expressed in the past by the NSW LRC. There is no
demonstrated need for the curtailment of the right tosilence. There is no evidence that the
proposed amendments will affect the rate atwhich accused persons plead guilty or are convicted.
The experience of the English legalsystem is that this proposal may lead to a notorious minefield.
It is strongly submitted by many reputable agencies of criminal justice that the government
should abandon this proposal, for which no relevant stakeholders (apart from thepolice) advocate.12

SERIOUS VIOLENT OFFENDERS

12

I have drawn from the NSW Bar Associations submission in this part of the paper. See
http://www.nswbar.asn.au/circulars/2012/sep/r2s.pdf

13

Recently the NSW Government announced that it would introduce legislation to implement a
recommendation of the SentencingCouncil Report "High Risk Violent Offenders" allowing for
continuing detention and/or extended supervision for such offenders.
The Government's announcement was confined to only one of theseven recommendations in the
Sentencing Council's Report.It is important to note that the Sentencing Council's recommendations
should be seen ascomprising a package of proposals to deal with the issue of violent offenders, so if
recommendation four of the Report is to be implemented,so should be the other recommendations.
The Report was a result of extensive research (including into regimes operating in other
jurisdictions) andconsultation, and the Council's position was that arange of measures be introduced
in orderto deal with the sentencing of high risk violent offenders (HRVOs) in a comprehensive
fashion.
The recommendations, in their entirety, were: 1
1

Any sentencing or post-custody management option should apply a two

stage process to defining high-risk violent offenders, defining them as
offenders who:
a) are convicted of a serious indictable offence that involves the use of,
attempted use of, or shows a propensity towards, serious
interpersonal violence; and
b) have been assessed as presenting a high risk of violent re-offending
in accordance with the most accurate risk-assessment tools
available at the time of assessment, in conjunction with an individual
case-by-case clinical assessment.
Recommendation 2
2
(a) Any SPCMO for HRVOs should:
- be subject to periodic review;
- be subject to review on application by the offender, at any
time, on the basis that as a result of a change in circumstances,
the offender is no longer a HRVO;
- form part of a broader management framework for HRVOs,
which includes targeted rehabilitation.
(b) Any legislation implementing a SPCMO should be subject to a
requirement that it be reviewed as soon as possible after 3 years of
operation.
Recommendation 3
3
(a)The Government should introduce legislation whereby State
Government agencies are required to:
- cooperate with other agencies to provide appropriate
services to HRVOs subject to community supervision orders;
and
- share information with other agencies to facilitate such
support;
and such a scheme should be extended to offenders managed under
theCrimes (Serious Sex Offenders) Act 2006 (NSW).
(b) As part of any new sentencing or post-custody management option
for high-risk violent offenders, an independent risk-management
body should be established, to facilitate and regulate best-practice in
relation to risk-assessment and risk-management.
14

Recommendation 4
4
The Government should introduce a continuing detention and extended
supervision scheme for high-risk violent offenders, subject to the
safeguards and support structures outlined in this Report.
5

(a) An independent review of VOTP should be conducted to assess

whether it effectively targets the diverse therapeutic needs of
HRVOs, and whether it is sufficiently accessible to those who may
benefit from it, and if not, how it should be reformed or what other
programs or resources should be introduced in order for the
therapeutic needs of HRVOs to be met.
(b) In-custody treatment programs for HRVOs should be expanded to
cater for all HRVOs, including women and offenders with mental or
cognitive impairments.

(c) BOCSAR should review and monitor the grant of parole to gauge
trends in relation to parole eligibility and post-release conduct of
serious violent offenders.
Recommendation 6
6
The Habitual Criminals Act 1957 (NSW) should be repealed.
Recommendation 7
7
(a) The Crimes (Sentencing Procedure) Act 1999 (NSW) should be
amended so as to make it clear that, subject to (d) below, the court
can, from the commencement of that amendment, impose a life
sentence for any offence that attracts life as a maximum sentence
and specify in respect of that sentence, a non-parole period.
(b) The exclusion of life sentences from the general requirement to set a
non-parole period under s 54 of the Crimes (Sentencing Procedure)
Act 1999 (NSW) should be removed.
(c) Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
should be amended so as to exclude life sentences from its reach.
(d) Provision should be made for the court in appropriate
circumstances, including where required by s 19B of the Crimes Act,
s 61 of the CSPA, or otherwise by law, to impose a whole of life
sentence, that is, a life sentence without the option of release on
parole.
(e) The offences for which a life sentence may be imposed should not be
expanded.
The institution of continuing detention and/or extended supervision for HRVOs is an extension of the
regime already in place for serious sexual offenders under the Crimes (Serious Sex Offenders Act
2006. That legislation was criticised by the UN Human Rights Committee as being contrary to the
ICCPR. The Australian Government has declined to act in compliance with the Committees report.
It would be irresponsible of the NSW government (in my view) to cherry-pick from the Sentencing
Councils recommendations without further detailed consultation and consideration.
15

DRUG LAW REFORM

You may have heard this year of a group named Australia21 (www.australia21.org.au), a think-tank
and lobby group based in Canberra and run by senior veterans of government, business and the
professions. In April it published its first report from a roundtable discussion held in January 2012:
The Promotion of Illicit Drugs is Killing and Criminalising our Children and we are Letting it Happen.
In September, after a second roundtable, it published: Alternatives to Prohibition Illicit Drugs:
how we can stop killing and criminalising young Australians.
The reports show convincingly that prohibition of drugs has failed and that there are better policies
we can adopt for greater benefits for society generally. [I should disclose that I took part in both of
the roundtable discussions.] I shall return to Australia21s second report and to some of its specific
recommendations.
CRIMINAL LAW
I am a criminal lawyer. I have practised in the criminal law, one way or another, for nearly 45 years in
several jurisdictions for the prosecution, for the defence, for persons caught up in the criminal
process in various ways. The criminal law is a bit like an undertaker. It comes along after the
unpleasant event, tidies up as best it can in ways that are generally acceptable to the community
and moves on. It does not have the capacity and should not be expected to solve social problems,
much less health problems. It is in many respects a blunt instrument applied to offenders. While we
do try to make it more effective, you cannot make a blunt instrument sharper just by making it
heavier so, for example, talk of increasing penalties to deter offences is, for the most part, just
whistling in the wind.
The propositions that lie behind the discussion of this subject are these.
-

There have always been, are and forever will be drugs substances that alter the mood and
the mind when ingested (and have physical effects, as well).
There have always been, are and forever will be persons wanting to consume drugs. The
reasons for that are multifarious. Some take drugs to relax, some to heighten their
excitement; some take them to escape, some to engage with their peers; some take them to
aid in contented reflection, some to rave. Some deliberately choose to consume, some are
sucked or drift into it. Many become addicted.
With demand and supply, there is a market.
The market for some drugs (and their consumption) is unlawful.
Persons involved in the market therefore run a risk of official detection, prosecution and
punishment.
They choose to run that risk because, in the case of suppliers, they are able to reap high
profits from their market activity (a kilo of heroin costs $1,000 in Bangkok and sells for
$300,000 in Sydney); conversely, they compensate for the risk by charging high markups.
Consumers run the risk of involvement in the market because their desire for drugs cannot
be satisfied by other means.

16

Consumers are often unable to meet the high prices charged from their own resources, so
they come looking for yours and mine. Secondary crime is created.
Consumers are also at risk of official sanction, so they consume in secret. Those conditions
encourage the use of unhygienic methods in unhygienic circumstances. Disease and death
can eventuate.
Consumers in this unregulated market are also not the beneficiaries of market and product
controls they literally do not know what they are consuming.
In the meantime, successful suppliers can sometimes pay law enforcers to turn a blind eye
to their activities. Corruption breeds from high profits.

These propositions seem to me to be unarguable. They underpin an illegal market that creates
harm additional to the harm already possible in drug consumption additional harms of disease,
death, secondary crime and official corruption. And criminals continue to profit hugely from this
illicit market and to diversify into other criminal conduct without restraint. We have created the
conditions for criminals to flourish by the laws that we have made and then we spend vast
amounts of public resources attempting to stop them. Would it not be better to prevent most of
this from happening in the first place? The only way we can do that is to take over the market
ourselves: legislate, regulate, control and tax the process and guide it in directions that will
substantially reduce the overall harm presently being caused, even if it cannot eliminate it
entirely. That means taking the criminal law out of personal drug possession and use.
In The Quest for Justice (Scribe, 2010) Dr Ken Crispin, former barrister, Director of Public
Prosecutions of the ACT, Judge and law reformer, wrote of our present drug laws:
It is a fundamental principle of our democratic societies that the rights of individuals should
generally be respected. Those who seek to have their fellow citizens arrested, stigmatised as
criminals, and even sent to prison should plainly bear the onus of establishing that the
infringement of their rights and the harm that will be caused to them is justified by the need
to protect others or by some other consideration of overriding importance. Similarly, those
who wish to withhold effective treatment or public-health measures from people in obvious
danger should be obliged to justify such an approach. In blindly adhering to our present
policies, we are trampling on peoples rights, endangering lives, and causing untold misery
and hardship. This is making the problem worse rather than better. It is also morally
unsustainable.
DRUG LAWS
Drugs may be divided into three broad categories for present purposes: licit, illicit and medicinal (or
therapeutic). Most drugs have specific controls on their production and consumption (caffeine being
an exception, falling under ordinary food laws). The controls vary greatly and not necessarily in
logical patterns. We continue to have problems in relation to all categories of drugs; but why is it
thought that if prohibition will not work for alcohol or for nicotine it will work for less harmful
drugs like cannabis and ecstasy? The approaches we have to drugs are neither consistent, nor
rational. We do have some success with the drugs we treat openly we have no success with those
we seek to suppress completely.

17

Cannabis use is widespread in Australia. Presently in Australia more than twice as much is spent on
cannabis as is spent on table wine. I am told by tertiary students that around two thirds of young
people attending pop concerts, raves and so on will have popped ecstasy or other pills.
There is not time here to review the history of drug laws nationally or internationally or the history
of the so-called war on drugs declared by President Richard Nixon of the USA on 17 June 1971, as a
cynical political diversion during his re-election campaign.
Experience has confirmed what we always suspected that drugs will always be with us and that
rather than try to eliminate them (a futile exercise a drug-free Australia being about as
achievable as a road accident free Australia) we must learn how to live with them and minimise
the harm that many of them can undoubtedly cause.
What has been the effect of prohibition and the continuing war on drugs? Have the banned drugs
gone away? Have we benefited from the billions of dollars spent on trying to eradicate them? How
do people feel about being engaged in the war? Does anyone spare a thought for the human rights
of the victims of this war (and I do not mean just the criminal merchants)?
As a political stunt, declaring a war is an effective move. Any war a war against a nation, against an
abstract noun such as terror or against botanical and chemical substances such as drugs. Three
consequences follow: first it grabs the publics attention (something important and serious is
obviously happening this is war); secondly, it enables resources to be redirected into the fight
(even if it means that worthier pursuits will suffer); and thirdly, it enables principles to be
compromised in the name of fighting the war.
We have certainly had a war in those terms those who argue that we have not really been trying
are deluded. The goals of this war in the Australian theatre have been said to be threefold: supply
reduction, demand reduction and harm reduction. But in 2002-03, for instance (a year studied
intensely by researchers), of the $1.3 billion spent proactively on drug related services, 56% went to
supply reduction (law enforcement and drug interdiction), 23% to demand reduction (almost all to
school-based drug education programs), 17% to treatment and only 4% to harm reduction (being
needle and syringe programs). The proportions have been broadly similar over the years in other
countries such as the UK, Canada, Sweden and The Netherlands. It is clear where the spending
priorities lie.
But there are limitations on what can be won in this war even by such large expenditure. We receive
about 2 million shipping containers in Australia each year and most of the imported drugs come in
this way; but we can search only about 4,000.
In the law enforcement area principles of criminal justice have been compromised: for example, the
onus of proof has been reversed in cases of possession of certain threshold quantities. Human
rights principles have also been compromised in the criminalisation of drug users and addicts and
their denial of treatment and support in dealing with the medical condition from which they suffer.
There is but one medically supervised injecting centre in Australia, at Kings Cross in Sydney and it has
done fantastic work for 11 years without a death on their watch but users have to bring their own
drugs. They must first commit offences before being entitled to use the public facility which may
save their life.
18

What has been the result of this war? We know from many studies and surveys by reputable
agencies that in the last four decades, internationally and in Australia:
-

the production of drugs has increased;

drug consumption has increased (there are now about 16 million injecting drug users
worldwide, 3 million of them with HIV/AIDS);
the number of types of drugs available has increased (in the EU alone there were 49 new
drugs banned last year, 41 in 2010 and 24 in 2009);
their purity has increased;
drugs have become easier to obtain; and
the price has decreased (for example, between 1980 and 2003 the price of heroin and
cocaine fell by 80% - but there is still sufficient markup to make dealing profitable and
dealers diversify, for example into amphetamines).

And all the time the adverse consequences disease, death, crime, corruption, prison populations
and government expenditure have all been increasing. Around 400 people still die in Australia each
year from injecting drugs.
CHANGE
This continuing disaster has not gone unheeded by ordinary citizens and some far-sighted leaders.
Increasingly there has been agitation for a change of policies and it is becoming stronger with each
day. In the recent US elections nine more States and localities have voted to legalise cannabis. In
Central and South America past and present rulers call for market mechanisms for the trade that is
tearing their countries apart on the route between producers in South America and consumers in
the US. For example, in Mexico in the last 10 years there have been about 60,000 deaths in the turf
wars between drug cartels, fighting over distribution lines through their country.
Respected lobby groups have become well established and even publish blueprints for how a regime
of legislation, regulation and control of drugs would work. They are freely and publicly available and
make compelling reading. Transform Drug Policy Foundation (www.tdpf.org.uk) is one in the UK,
along with the Beckley Foundation (www.beckleyfoundation.org) and the International Drug Policy
Consortium (www.idpc.net). The Global Commission on Drug Policy
(www.globalcommissionondrugs.org) is another which in its report in June 2011 stated as general
propositions: End the criminalization, marginalization and stigmatization of people who use drugs
but who do no harm to others and Encourage experimentation by governments with models of
legal regulation of drugs to undermine the power of organized crime and safeguard the health and
security of their citizens. There is not time now to take you through the reports and programs of
such bodies, but I encourage you to explore the websites for yourselves. You will find internationally
known and respected persons heading calls everywhere for change.
Australia21 has already been mentioned. It is time that our politicians heeded the call to review
policies but they will not do so until the demand from the electors for change is strong and clear.
Effective change will need to be incremental, planned, monitored and reviewed and adapted as
required. It will require broad community support. It probably requires different drugs to be dealt

19

with differently, just as we do already with alcohol, tobacco and medicinal drugs. There is no easy
one size fits all answer, but the second Australia21 report provides some leads.
That report emphasises the need for broad community consultation in the development of
alternatives to the policy of prohibition that we presently have. That is partly the reason I am
including this subject in this lecture. You should read the report (www.australia21.org.au). It
recommends that an Australian Drug Summit be held in 2013 and Federal politicians on both sides
have indicated support in principle for that idea. The report also recommends engagement with the
Council of Australian Governments (COAG), the Australia and New Zealand Policing Advisory Agency
(ANZPAA), the Australian Parliamentary Group on Drug Law Reform, the Police Commissioners
Conference and police unions, church leaders, business leaders and international law experts.
In the meantime, however, while greater consultation occurs, there are some specific reform
options suggested.
-

To reduce demand for drugs we should ensure that the content and manner of education to
prevent drug use is consistent with research findings. At present we spend all of that
allocation, in effect, telling school children to just say no. That is obviously not effective.
A proportion of the funds allocated to law enforcement against drug users should be
redirected to systematic, objective and effective efforts to improve knowledge and
understanding about drug use and problems in the community.
Support for high risk populations (eg indigenous groups, the homeless, the mentally ill)
should be strengthened.
Criminal sanctions for personal use and possession of drugs and drug-using paraphernalia
should be removed.
Non-custodial dispositions for drug offences should be increased.
Programs diverting drug offenders from the criminal justice system into treatment and
education should be increased to reduce further damage especially to vulnerable young
people.
Funding for health and social interventions with drug users should be increased to the levels
seen at present for criminal law enforcement.
More drug treatment services are needed and the range of treatments broadened, making
them easier to access and less expensive.
Establish heroin assisted treatment for people with severe heroin dependence who have not
benefited from other treatments. [And consideration could also be given to its prescription
for the relief of intractable pain.]
Ensure that treatment programs in prison are at least equal to those in the community.

Specifically in relation to cannabis the Report makes a number of recommendations.

-

It should be controlled through taxation and regulation.

Hard to get but easy to lose licences should be issued for cultivation, wholesale and retail
supply.
Cannabis should be sold in plain packages with warning labels, help-seeking and other
consumer information.
Proof of age should be required for purchase (as with alcohol).

20

There should be a ban on advertising and donations to political parties from companies and
individuals engaged in the cannabis trade.
Part of cannabis tax revenue should be sequestered to fund alcohol and drug prevention and
treatment.
Establish and evaluate a limited and regulated medicinal cannabis system (as presently exists
in 17 of the United States and Washington DC and in Canada, The Netherlands, Israel and
five other European states).
Adopt national guidelines on less harmful consumption (as happens now with alcohol
guidelines from the National Health and Medical Research Council, NHMRC).

For injecting drug users the report recommends:

-

The establishment of medically supervised injecting centres within major drug markets,
starting with the major cities.
Increase the availability of sterile injecting equipment.
Deregulate injecting equipment sales.
Ensure that prisoners have the same protection from infections as do people in the
community.

It is also recommended that business and the community do their bit, especially by encouraging
major employers to hire more people attempting to overcome drug and alcohol dependence.
And lest you think this might become an irresponsible licence for increased general drug use, the
Report recommends that there be a commitment to rigorously evaluating reforms, especially to
estimate the nature and extent of benefits and harm of the new policy (including unintended
adverse consequences) while attempting to maximise benefits and minimise costs.
There is one other proposal put forward in the Australia21 Report that must be mentioned. It comes
from Emeritus Professor David Penington AC, former Professor and Dean of Medicine and then Vice
Chancellor of the University of Melbourne, who headed the AIDS Task Force 1983-87 and various
drug councils and committees thereafter. He proposed:
-

Decriminalisation for possession and use of cannabis and ecstasy for people aged 16 and
over who are willing to be recorded on a national confidential users register, who will then
have access and permission to purchase them from an approved government supplier
(probably a pharmacist) in regulated quantities with careful record keeping. There would be
full cost recovery of production and distribution, including a dispensing fee, in the price to
clients. Use of cannabis for medical purposes would also be covered by the system, with
pharmacists giving advice and able to refer clients to counselling or treatment, all as a
recognised health service.

These recommendations and proposals have not come from a bunch of potheads or the loony left.
You can see in the Report the names of the participants in the roundtable discussions and in drafting
the document itself. I suggest these are very responsible options, directed towards reducing the
harm and expense of dealing with a fact of life the use of drugs in the community. I strongly
suspect that John Marsden would have approved of the direction this debate is now heading and
probably would have done his best to accelerate it.
21

The recommendations are not exhaustive or conclusive they are a starting point for serious
discussion about effective reform. They cover a range of initiatives that would work best in
combination. Clearly, as in Portugal which has successfully had limited drug decriminalisation for the
last 12 years, there will still be a role for the criminal law, but it will be less and confined to dealing
with serious criminality. Just as there is contraband or bootleg nicotine and alcohol in Australia, so
there will still be those criminal risk takers who persist in trying to profit outside the law. But with
profits harder to make because of the regulated market run by the government in competition, they
will be fewer than at present and their influence much less. Criminal law enforcement requirements
will be much reduced and the scope for corruption severely limited. Secondary crime will also
reduce, because drugs for those who need them will be cheaper.
In the meantime, the stigma that presently prevents drug users from openly seeking assistance and
support and increases the risks associated with their habits will be lifted. Not for everyone, I concede
but we have no chance with anyone if we persist with complete prohibition.
In the first steps of a reform process, the lessons of other countries should be studied. A model for
decriminalisation of quantities of drugs consistent with personal use is to be found in Portugal. In
Switzerland heroin prescription for addicts has been operating for over a decade. In 1990 there were
850 new heroin users in that country in 2002 only 150; and there have been substantial measured
reductions in secondary crime, in HIV/AIDS infections and in overdoses.
Some of you may be drug users. Some of you may know drug users. Some of you may know people
who, unknown to you, are drug users. You never know when it might start with someone you know,
how it might begin or what pressures may operate to bring it about. Dont you want that person to
have proper health and social support without being driven underground by the fear of criminal
prosecution and risking disease and death?
It is time we stopped treating drug use as a criminal law issue and started addressing it as the health
and social issue it really is. To do that we all need to know more about the problem. We need to
change the language of the debate to avoid blaming the victims. Let us forget about war against
plants and chemicals. We need to empower our elected representatives to be rational and positive,
basing policy on evidence. We need to transfer resources into areas where they can do more good
by providing attractive and affordable interventions that are easy to access and safe to use. Only by
bringing this problem into the light can we encourage those who need it to seek assistance and
make headway against abuse and the benefits to all of us can be enormous.13

13

This section is an adaptation of the William Merrylees Memorial Lecture 2012, delivered for Charles Sturt
University in Wagga Wagga on 24 October 2012

22