Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia

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Research paper

Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia Caitlin Elizabeth Hughes a,∗ , Alison Ritter a , Nicholas Cowdery b a b

Drug Policy Modelling Program, National Drug and Alcohol Research Centre, UNSW, Australia Faculty of Law, UNSW, Australia

a r t i c l e

i n f o

Article history: Received 8 October 2013 Received in revised form 10 February 2014 Accepted 13 March 2014 Keywords: Drug Trafficking Law Policy process Australia

a b s t r a c t Background: Legal thresholds are used in many parts of the world to define the quantity of illicit drugs over which possession is deemed “trafficking” as opposed to “possession for personal use”. There is limited knowledge about why or how such laws were developed. In this study we analyse the policy processes underpinning the introduction and expansion of the drug trafficking legal threshold system in New South Wales (NSW), Australia. Methods: A critical legal and historical analysis was undertaken sourcing data from legislation, Parliamentary Hansard debates, government inquiries, police reports and research. A timeline of policy developments was constructed from 1970 until 2013 outlining key steps including threshold introduction (1970), expansion (1985), and wholesale revision (1988). We then critically analysed the drivers of each step and the roles played by formal policy actors, public opinion, research/data and the drug trafficking problem. Results: We find evidence that while justified as a necessary tool for effective law enforcement of drug trafficking, their introduction largely preceded overt police calls for reform or actual increases in drug trafficking. Moreover, while the expansion from one to four thresholds had the intent of differentiating small from large scale traffickers, the quantities employed were based on government assumptions which led to “manifest problems” and the revision in 1988 of over 100 different quantities. Despite the revisions, there has remained no further formal review and new quantities for “legal highs” continue to be added based on assumption and an uncertain evidence-base. Conclusion: The development of legal thresholds for drug trafficking in NSW has been arbitrary and messy. That the arbitrariness persists from 1970 until the present day makes it hard to conclude the thresholds have been well designed. Our narrative provides a platform for future policy reform. © 2014 Elsevier B.V. All rights reserved.

Introduction Legal thresholds are used in many parts of the world to determine whether possession of an illicit drug is deemed “trafficking” as opposed to “possession for personal use” based on the quantity of drug involved (Hughes, 2003, 2010a). For example, in New South Wales (NSW), the largest state in Australia, possession of 0.75 grams of MDMA or three grams of heroin, methamphetamine, cocaine or synthetic cannabinoid will amount to ‘deemed supply’ with a maximum penalty of 12 years imprisonment (Drug Misuse and Trafficking Act, NSW, 1985). In contrast, anyone possessing less than the specified quantities will face a maximum penalty of two

∗ Corresponding author. Tel.: +61 2 9385 0132; fax: +61 2 9385 0222. E-mail address: [email protected] (C.E. Hughes).

years imprisonment or a diversionary response (Hughes & Ritter, 2008). Given the import of such legal tools, it is perhaps surprising that there remains very limited knowledge about why or how such laws were developed (Harris, 2011). In this article we provide a detailed analysis of the introduction and expansion of the NSW drug trafficking legal threshold system. While used in many parts of the world including the United States, Canada, Australia, Spain, Portugal, Greece, Finland, Hungary, Mexico and Argentina (Harris, 2011; Hughes, 2003; Walsh, 2008), legal thresholds for drug offences have received little academic attention to date, and there has been no formal evaluation of their impact. The European Monitoring Centre for Drugs and Drug Addiction has conducted a comprehensive review of threshold designs, focusing specifically on European systems (updated in 2010) (Hughes, 2003, 2010a). This reveals considerable diversity in threshold use and application. Most nations employ at least

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Please cite this article in press as: Hughes, C. E., et al. Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.03.002

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one threshold, but some nations (such as France) explicitly avoid their use. The most common threshold is used to distinguish “trafficking” from “possession for personal use”, but others are used to distinguish other offence types, to determine the court of action, applicable sentence range or eligibility of offenders for noncriminal sanctions. Designs vary in terms of the number of drug types for which thresholds are specified (only cannabis, a select number of drugs, or all drugs), how the quantity of drug is specified (weights, units or dollars, or abstract terms such as “large” or “small”) and how the drug is measured (inclusive of inert material or not). A commonality to most European nations is that possession of the threshold quantity is only indicative of an offence (not presumptive), which necessitates that other indices of use and supply (such as the presence or absence of large sums of money) are considered in determining the offence (Hughes, 2003). This differs to NSW where it is presumptive (Drug Misuse and Trafficking Act, NSW, 1985). While thresholds can be employed for many reasons, there are two key rationales. The first rationale is to make it easier for the criminal justice system (police, prosecutors and the judiciary) to prosecute and sentence alleged drug offenders (Harris, 2011; Hughes, 2003; Walsh, 2008). For example, by providing simple benchmarks (such as, does the offender possess more or less than 20 grams of ecstasy?) quantity thresholds speed up decision making processes. In so doing they overcome some of the barriers to establishing criminal liability for drug offenders. In places such as NSW (where possession of the threshold quantity amounts to “deemed supply”), they further remove the need for police and courts to provide proof of actual trafficking or intent to traffick. The second rationale is to increase consistency in the prosecution and sentencing of drug offenders. It is argued that this will in turn lead to more effective use of criminal justice resources (particularly ensuring prison is used for traffickers, not users), and increase community satisfaction and deterrence of current and would-be traffickers (MCCOC, 1998; Sentencing Council, 2011). In spite of their widespread use, systematic evaluation of the impact of thresholds including their benefits and harms has yet to be undertaken. There remains scepticism about their worth. For example, opponents fear that they may unwittingly foster inappropriate or unjust sentencing, such as sanctioning users as traffickers (Sevigny, 2006; Walsh, 2008). In this regard evidence from a US study by Sevigny and Caulkins (2006) is important, as it showed that in 1997 11.9% of US federal and 15.6% of state inmates convicted of drug trafficking self-reported no trafficking involvement: instead at both the time of conviction and the year leading to the conviction they were a simple user/possessor. Our forthcoming work (Hughes, Ritter, Cowdery, & Phillips, 2014) similarly finds that Australian thresholds do not always differentiate users from traffickers. Most notably, in the state of NSW, users of heroin, methamphetamine and cocaine report consuming up to 2–3 times the threshold quantity for deemed supply and users of ecstasy report consuming up to 8.9 times the amount. It is also feared that quantity thresholds will lead to ineffective sanctioning of traffickers, particularly sanctioning mules or street level dealers more harshly than the financiers and leaders of drug trafficking networks (who frequently avoid possessing drugs) (Walsh, 2008). Finally, there are fears that if thresholds are set too low, they may actually fuel greater rates of imprisonment and hence increased demands on criminal justice resources (Zuffa, 2011). A particular concern is that the likelihood of such adverse outcomes will be greater if thresholds are poorly designed. While limited, the existing literature on threshold development processes suggests thresholds have had a largely ad hoc development. For example as concluded at an international meeting on thresholds: “How these figures were set . . . is not a calculation for which the workings are generally in the public domain nor, did

some jurisdictions retain their workings out even in the private domain” (Harris, 2011, p. 8). Moreover, threshold developments from the UK (Walsh, 2008) and US (US Sentencing Commission, 1995, 2005, 2007) reinforce that processes appeared more driven by Government agendas and public concern than expert opinion. The most notorious example of this comes from the US 1986 Anti-Drug Abuse Act decision to introduce mandatory minimum sentences of 5 years imprisonment for possession of 500 grams of powder cocaine but only 5 grams of crack cocaine. Tracing the development has proved difficult as “Congress bypassed much of its usual deliberative legislative process” (US Sentencing Commission, 2005, p. 5). That said it is clear that media and public opinion played critical roles in inciting a response; that traditionally consulted experts, such as the US Sentencing Council, were excluded from the process; that the 100:1 distinction was based on Congress’s “assumptions” that crack was far more dangerous than powder cocaine; and that even when proved wrong the original assumption remained in law (US Sentencing Commission, 1995, 2005, 2007). Finally, Leader-Elliot’s (2012) examination of a 2010 proposal (not yet implemented) to change legal thresholds in the Australian Commonwealth Codes, including expanding the number of substances for which threshold quantities would be set (from 15 to 256) found that no justification was put forward, other than they originated from a “working party of unnamed ‘representatives from industry and relevant State and federal agencies”’ (2012, p. 265). Studies of other drug policy areas illustrate the potential benefits of critically analysing the policy process. For example it can help explain how issues rise onto the agenda, why particular responses are employed, the relative roles of factors including public opinion, research and stakeholders in the adopted policy response and future reform opportunities (see for example Houborg, 2013; Hughes, 2009; Lenton, 2004; Selin, Hakkarainen, Partanen, Tammi, & Tigerstedt, 2013; Uitermark & Cohen, 2004; Uitermark & Cohen, 2005). Such studies highlight how agenda setting opportunities often follow a confluence of events, including heightened media and public interest and perceived problems, but they also show that problem framing and stakeholder involvement is often critical to the policy response: including but not limited to the extent to which a policy is evidence-informed or not. The context for this case study of threshold policy development is one jurisdiction in Australia, namely NSW. In Australia, drug law and the responsibility for its enforcement is shared between the Commonwealth, and the eight States and Territories. However all jurisdictions prohibit the cultivation, manufacture and trafficking of specified drugs (such as heroin, methamphetamine, cocaine, ecstasy/MDMA and cannabis), as well as possession and personal use. Reflecting the seriousness with which drug trafficking is viewed, the statutory maximum penalty for drug trafficking offences is 21–25 years (Northern Territory, Queensland, Tasmania, Western Australia) or life imprisonment (Australian Capital Territory, New South Wales, South Australia, Victoria and Commonwealth). All legislators employ thresholds as key components of their drug laws, which means that the quantity of drug involved is a key determinant of the offence and penalty range that can be applied to convicted drug offenders (Hughes, 2010b). However, consistent with European examples, the designs vary. Most states employ three different thresholds. NSW stands out for being the only state to have employed five thresholds. It also has one of the lowest thresholds for MDMA: 2.6–4 times smaller than almost all other states. The study aimed to analyse the policy processes that led to this particular drug trafficking threshold system. It is important to emphasise that the purpose throughout was to analyse the policy processes, not their effectiveness or impact, the exception being when evidence on impacts was fed into the threshold development process.

Please cite this article in press as: Hughes, C. E., et al. Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.03.002

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Methods A critical legal and historical analysis was undertaken. Data were sourced from legislation, Parliamentary records (Hansard), government inquiries, police annual reports and research bodies. We used this to construct a timeline of the NSW threshold development from 1970 to 2013 including the growth in the number and type of legal thresholds, and the quantities employed for different drug types. We then critically examined why this issue came onto the agenda, why legal thresholds were seen as a solution, why the particular thresholds evolved, and the policy context in which these took place. To inform the latter we focused on four key aspects of the policy process, namely the roles of formal policy actors, public opinion, the drug trafficking problem and research/data that could inform threshold design. While we are cognisant that multiple factors can play a role in policy development, these are amongst the most highlighted by prominent public policy theories, including in Kingdon’s (2003) Multiple Streams approach and Sabatier’s (1988) Advocacy Coalition Framework. These are also the factors that have been identified as critical to much of existing drug policy developments. That said, it is important to recognise that there is overlap between these aspects – for example, the nature of the problem and how it comes to be defined and understood can often be driven by research. For the subsequent analysis we distinguish where possible between the development of legal thresholds and the quantities employed. This is important conceptually as there can be different drivers for the number of thresholds employed (0–5) and their purpose (e.g. to differentiate within or between offences or to distinguish where cases are heard), vis-à-vis the specific quantities (e.g. 2 or 3 grams) used in each legal threshold. Equally importantly, as the subsequent analysis will illustrate, we know much more about the former than the latter.

Results The introduction and expansion of the NSW legal threshold system The development of drug trafficking thresholds in NSW can be broadly grouped into four key points in time: 1970 (introduction); 1985 (expansion); 1988 (further expansion and wholesale revision); and 1989–2013 (incremental additions). Key steps in this process and the adopted quantities are outlined in Tables 1 and 2. The threshold laws have been adopted using a combination of Acts and Regulations: the former (used for 1970, 1985 and 1988 laws) were passed through parliament following multiple readings in the legislative assembly and legislative council; and the latter (used for the 1996 to 2013 laws) were passed by a Governor (with the advice of the Executive Council) alone. The first drug trafficking threshold was introduced in 1970 using a single threshold defined as “the prescribed quantity for supply.” Quantities commenced at 0.5 grams for MDMA and 2 grams for heroin (Poisons Amendment Act, NSW, 1970). The threshold was attached to a deeming provision such that carrying this or a greater quantity was presumptive of ‘intent to supply’ (unless the alleged offender proved otherwise) and was introduced along with the first specific offence for supply which meant any offender convicted of exceeding the threshold was liable to up to 10 years imprisonment (compared to two years for simple possession). The first legal threshold was justified as a means to overcome barriers in policing drug traffickers. In particular it was argued that the threshold would be set at a level “over which an addict is unlikely to possess” (NSW Legislative Assembly, 1970, August 20, p. 5342) and therefore “discriminat(e) between addicts and pedlars” (NSW Legislative Assembly, 1970, August 20, p. 5342). Equally

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importantly, it would eliminate the requirement to prove mens rea or actus reus for the offence of supply and thereby make it easier for police to charge and prosecute presumed traffickers: (This) has been made necessary by the difficulty of proving that a person who had a large quantity of this type of drug in his possession had it for his use or for supply or sale (NSW Legislative Assembly, 1970, August 20, p. 5347). At the present time, the police may apprehend known or suspected pedlars with drugs illegally in their possession, but they are unable to prove they are held for supply or sale and consequently can lay only a charge of illegal possession (NSW Legislative Assembly, 1970, August 20, p. 5341). The government recognised that the new measures expanded the boundaries around supply (from ‘actual supply’ to ‘deemed supply’) and challenged legal principles such as the presumption of innocence and the burden of proof (which traditionally rests on the prosecutor not the alleged offender), but they argued this was justified by the threat posed by traffickers. For example, as argued by the then Minister for Health Mr Jago: This is a drastic procedure, but the Government has not lightly introduced it. . . This provision will at first sight appear repugnant to fair-minded people who will assert that it is a denial of justice. . .. The problem of drug peddling is a desperate situation demanding desperate measures (NSW Legislative Assembly, 1970, August 20, p. 5341). In 1985 the single threshold was replaced with four distinct thresholds: small, traffickable, indictable and commercial (Drug Misuse and Trafficking Act, NSW, 1985). Explicit to the threshold expansion was the rationale that one single threshold was no longer sufficient as there were clear differences within and between drug trafficking offence severity. The introduction of four new thresholds was thus argued to offer a much more “comprehensive and integrated” response to drug trafficking, one that coupled with new amendments (including moving illicit drug offences from the Poisons Act into a new Drug Misuse and Trafficking Act (DMTA), new maximum penalties for drug trafficking of life imprisonment, enhanced asset confiscation powers and the first NSW Crime Commission (then the “State Drug Crime Commission”)) would significantly increase the capacity to deter, detect and sanction drug traffickers. In particular by introducing the notion of both traffickable and commercial thresholds, triggering maximum penalties of ten years versus life imprisonment respectively, it was argued that this would better differentiate the “ringleaders” or “Mr Bigs” of the drug trade from the small scale traffickers: By distinguishing between traffickable quantities and commercial quantities the new law will be able to effectively discriminate and punish the Mr Bigs of the heroin trade in a way that was not possible under the Poisons Act (NSW Legislative Council, 1985, October 22, p. 8090). Equally importantly, it was argued that introducing small and indictable thresholds, triggering the court of jurisdiction (whether heard summarily or on indictment), would reduce discretion and increase certainty over what penalties would be applied: There were those whom the police wished to charge indictably (sic) who found themselves in jeopardy of a substantial penalty, and those who the police decided, for reasons best known to themselves, would appear before a magistrate thus attracting half or sometimes a third of the penalties provided for

Please cite this article in press as: Hughes, C. E., et al. Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.03.002

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Table 1 Threshold quantities (selected) for drug trafficking in NSW, as amended in 1970, 1985, 1988 and 2011, by threshold and drug. Year/drug 1970 Heroin (g) Cocaine (g) Amphetamine (g) Methamphetamine (g) MDMA (g) Cannabis leaf (g) Cannabis resin (g) Cannabis plant (plants) 1985 Heroin (g) Cocaine (g) Amphetamine (g) Methamphetamine (g) MDMA (g) Cannabis leaf (g) Cannabis resin (g) Cannabis plant (plants) 1988 Heroin (g) Cocaine (g) Amphetamine (g) Methamphetamine (g) MDMA (g) Cannabis leaf (g) Cannabis resin (g) Cannabis plant (indoor) Cannabis plant (outdoor) 2011 Tetrahydrocannabinol and alkyl homologues (synthetic cannabinoids) (g)

the indictable offence under the Poisons Act. The proposed amendment forever puts to end that particular problem (NSW Legislative Council, 1985, November 28, p. 11126). However, little explanation was provided for the new small, indictable and commercial quantities: other than that they were based on (ratios of) the existing ‘prescribed quantity for supply’. For example, the ‘prescribed quantity for supply’ was re-labelled the traffickable quantity, the small quantity was ten times less and the commercial quantity was 500 or 1000 times greater (no explanation was provided for how or why these ratios were decided upon). Three years later in 1988 all existing threshold quantities were changed: revising quantities for over 100 different substances (Drug Misuse and Trafficking (Amendment) Act, NSW, 1988). Small, traffickable and indictable threshold quantities were increased (e.g. the heroin traffickable quantity moved from 2 grams to 3 grams) and commercial threshold quantities were reduced and a fifth set of threshold quantities introduced above this: large commercial. The revision occurred for two reasons: recognition that the quantities themselves were critical to the effectiveness of drug trafficking thresholds and that there had been “manifest problems posed by the incorrect levels” in the 1985 law (NSW Legislative Assembly, 1988, September 14, p. 1281). As noted by the then Attorney General, Mr Dowd: These quantities have implications for the use of police, court and corrective services resources, for crime prevention and for sentencing. It is crucial, then, that these quantity levels are correct. . .. On all the information now available to the Government, it is clear that an amendment to the quantity levels is required . . .. The simple fact is that the current small, trafficable and indictable quantity levels are wrongly set. They are based on incorrect assumptions about drug use. They do not effectively target the levels at which greater penalties are deserving. They

Traffickable

Small

Indictable

Commercial

Large commercial

2 2 2 2 0.5 200 200 – 2 2 2 2 0.5 200 20 –

0.2 0.2 0.2 0.2 0.05 25 2 5

3 3 3 3 0.75 300 30 – –

1 1 1 1 0.25 30 5 5 5

3

1

4 4 4 4 1 750 40 20 5 5 5 5 1.25 1000 90 50 50 5

1000 2000 2000 2000 500 100,000 10,000 1000 250 250 250 250 125 25,000 2500 50 250

1000 1000 1000 1000 500 100,000 10,000 200 1000

500

2000

do not assist the police enough in their efforts against the drug trafficker (NSW Legislative Assembly, 1988, May 25, p. 547). This conclusion followed a stated yet unpublished review of the Act which brought together research from the NSW Bureau of Crime Statistics and Research (BOCSAR) on patterns of drug consumption, trends in court sentencing and police expert opinion on the efficacy of the new law. The review highlighted two key flaws. First, the review showed that many quantities were too low. For example, there were many more minor drug offences being prosecuted in the higher courts and research documenting patterns of drug use showed drug users could consume more than the levels set in the 1985 legislation. Second, the review showed that the commercial quantities were too high, as few of the “Mr Bigs” carried the quantities that would trigger a commercial sanction. That said, this was not the only change undertaken in 1988, as alongside the revisions, legislators also reduced the commercial quantity for amphetamine and methamphetamine (from 2 kg to 1 kg). This was justified “to reflect the Government’s concern at their high rate of usage” (NSW Legislative Assembly, 1988, September 14, p. 1282). Interestingly, the commercial quantity for cocaine was similarly reduced. Since the 1988 revision new substances have continued to be added to the NSW threshold system such as GHB/fantasy in 1996 (Drug Misuse and Trafficking Amendment (Fantasy) Regulation, NSW, 1996), 4-MTA/flatliner in 1999 (Drug Misuse and Trafficking Amendment (Flatliner) Regulation, NSW, 1999) and ketamine in 2003 (Drug Misuse and Trafficking Amendment (Prohibited Drug) Regulation, NSW, 2003). As noted above, this has been increasingly undertaken via regulation, without justification or discussion in parliament. Equally importantly, threshold quantities have been added for an expanding array of ‘legal highs’, drugs that mimic the effects and/or chemical structure of illicit psychoactive drugs such as cannabis and ecstasy, often with the goal of circumventing traditional legal restrictions on production, sale and use by changing

Please cite this article in press as: Hughes, C. E., et al. Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.03.002

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Table 2 Timeline of key threshold events in NSW and Commonwealth, 1966–2013. Year

Event

1966

Poisons Act 1966 regulated sale and use of restricted substances (inc heroin), poisons and drugs of addiction (inc cannabis, amphetamine, cocaine)

NSW

Commonwealth (Cth)

National Standing Control Committee on Drugs of Dependence argued for specific/severe sanctions for traffickers and introduction of deemed supply laws

1969

1970

Poisons Amendment Act 1970 introduced first threshold quantities for supply; a deeming provision for anyone carrying this quantity or greater; and first specific penalties for “supply” (max of 10 yrs prison) Cth Senate Select Committee on Drug Trafficking and Drug Abuse suggested increasing penalties for drug trafficking

1971

1975 1976

NSW Joint Parliamentary Committee on Drugs (1975–1978)

1977

Royal Commission into Drug Trafficking (1977–1979)

1979 1981

Poisons Amendment Act 1979 increased financial penalties for trafficking Poisons Amendment Act 1981 increased powers to seize assets of traffickers and sanction those supplying inert substances State Crime Commission Act and Crimes (Confiscation of Assets) Act increased asset seizure powers and established NSW Crime Commission (November) Drug Misuse and Trafficking Act, 1985 introduced a single criminal code for drug offences; 4 thresholds for trafficking; and max penalty of life imprisonment for trafficking in commercial quantities (December) Drug Misuse and Trafficking (Amendment) Act and Drug Misuse and Trafficking (Further Amendment) Act introduced a fifth threshold for large commercial quantities and revised all existing traffickable, small, indictable and commercial threshold quantities (June and December) Royal Commission into the New South Wales Police Service (Wood Royal Commission) (1995–1997) Drug Misuse and Trafficking Amendment (Ongoing Dealing) Act introduced a new offence to respond to a ‘loophole’ in the quantity system, namely ‘ongoing dealing’ involving small (i.e. less than traffickable) quantities

1985

1988

1995 1998

1996 1999 2003 2011 2013

Meeting of Cth and State Ministers led to agreement that existing penalties were inadequate for large-scale trafficking Royal Commission of Inquiry into Drugs (1977–1980) called for a clearer distinction between trafficking and use Royal Commission of Inquiry into Drug Trafficking (1981–1983) National Summit on Drugs (April) First National Campaign Against Drug Abuse launched (April)

Model Criminal Code Officers’ Committee report on Serious Drug Offences proposed harmonisation of drug thresholds across the states: (1) three levels of liability, and (2) identical quantities

Drug Misuse and Trafficking Amendment (Fantasy) Regulation 1996 added threshold quantities for GHB or “Fantasy” Drug Misuse and Trafficking Amendment (Flatliner) Regulation added threshold quantities for 4-MTA or “flatliner” Drug Misuse and Trafficking Amendment (Prohibited Drug) Regulation 2003 added threshold quantities for ketamine Drug Misuse and Trafficking Amendment (Prohibited Drugs) Regulation 2011 added threshold quantities for 7 synthetic cannabinoids Drug Misuse and Trafficking Amendment (Prohibited Substances) Regulation 2013 added threshold quantities for NBOMe and other “legal highs”

as little as one molecule (Griffiths, Evans-Brown, & Sedefov, 2013; Winstock & Ramsey, 2010). Of particular importance with this class of drugs has been that the products often have no history of human consumption and no public health data on their rates of use, patterns of use, effects or harms. Threshold quantities for seven ‘synthetic cannabinoids’ were introduced in June 2011 (Drug Misuse and Trafficking Amendment (Prohibited Drug) Regulation, NSW, 2011) and for 45 other ‘legal highs’ in September 2013 (Drug Misuse and Trafficking Amendment (Prohibited Substances) Regulation (NSW), 2013). The first set, for synthetic cannabinoids, used threshold quantities that were equivalent with THC (3 grams), 100 times smaller than for natural cannabis (Drug Misuse and Trafficking Amendment (Prohibited Drug) Regulation, NSW, 2011). The NSW Department of Attorney-General and Justice (DAGJ) has since stated this was due to the absence of research which could indicate what specific quantities to use and a perception that pure THC may be a better benchmark than natural cannabis: Due to the inconsistency in the composition of commercially available synthetic cannabinoids and the limited research

available in relation to them, DAGJ was advised it was not possible to set quantities which reflected their potency. Consequently, the quantities for synthetic cannabinoids were set at the same quantities for THC (cited in NSW Parliament Legislative Assembly Legal Affairs Committee, 2013, p. 25). Roles played by policy actors, public opinion, the problem and research/data Role of formal policy actors The dominant policy actors involved in this process have been elected officials: namely the NSW Government. They framed the policy debate in highly emotive terms, with extensive references to pedlars, the perniciousness of drug trafficking and the evils of drugs and ‘drug use’. In this context their policy response became one of firm, strident and often outright punitive action that openly declared ‘war’ on drug use and trafficking: The abuse of drugs presents today one of the rapidly increasing menaces in our society. Lying at the core of the drug abuse problem is the pedlar. The pedlar is insidious and unscrupulous;

Please cite this article in press as: Hughes, C. E., et al. Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.03.002

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without him there is no organised drug abuse problem (NSW Legislative Assembly, 1970, August 20, p. 5340). In this country today there can be no more pernicious or more despicable activity than drug peddling (NSW Legislative Council, 1985, October 22, p. 8209). Under the Government’s new programme-let the drug entrepreneurs beware. If they now supply drugs: they will be hunted down with sophisticated weaponry; when caught they will be vigorously prosecuted. . .. when sentenced they will face the most severe penalties that the Courts can impose (NSW Legislative Assembly, 1985, November 26, p. 10617). The Government’s programme amounts to a full scale war on illegal drugs unmatched anywhere in Australia (NSW Legislative Council, 1985, November 28, p. 8087). A notable feature of the parliamentary debates (and something that differentiated it from many others) was a strong political consensus between both the Government of the day and the Opposition; with both equally keen to implement new responses towards drug trafficking and drug use more generally. In this context the specific policy proposal was almost secondary. Accordingly there was minimal critical attention to the legislative tools themselves. For example, there was no discussion of whether the legal tools or deemed supply provisions were necessary, nor the optimal design for the NSW context, or alternate measures that could have been employed. For example, in the 1970 introduction of a reverse onus of proof (requiring the alleged offender to prove the absence of intent to supply: as opposed to requiring police to prove the presence of intent to supply) the then Health Minister noted: Only once during the debate was any reference made to the reverse onus of proof. . .. I am delighted that this dramatic departure from the usual procedure has been widely accepted because of the importance of taking punitive action (NSW Legislative Assembly, 1970, August 20, p. 5498). The 1988 discussion was thus highly significant as it was the first and only acknowledgement within parliament that the quantities do affect the outcomes from employing thresholds (including their capacity for adverse effects). However, even in spite of such discussion and the subsequent revision of over 100 substances, there were no reviews built into the new threshold laws and to our knowledge no reviews have since been undertaken. The emphasis has thus remained on providing a response, rather than a well-designed or necessarily effective response. In principle another pertinent stakeholder in the policy developments is law enforcement, with government citing the need to empower law enforcement in the fight against drug trafficking as the rationale for introducing legal thresholds. Yet NSW Police Annual Reports at the time make clear they were not protagonists for reform. Evidence of this is that they still saw the drug problem as small and not serious. For example, NSW Police had yet to label drugs a ‘serious crime’ in their annual reports (New South Wales Police Department, 1971). This was in spite of such a label being applied to offences involving break and enter, larceny and forgery. They also stated they were responding effectively to drugs/drug trafficking (New South Wales Police Department, 1969, 1970, 1971). Indeed, while not contesting the need for thresholds one government member, involved in the 1970 parliamentary debates supported this assessment, stating that the NSW drug squad was “as efficient as any in the world” (NSW Legislative Assembly, 1970, September 1, p. 5445). Police also seemed poorly engaged in the subsequent threshold expansion. For example, in the lead up to the 1985 reforms NSW Police noted some increased concern about drug trafficking, but police numbers and powers had already increased substantially: a

factor that was unacknowledged in the policy process. Moreover, subsequent to the adoption of both the 1985 and 2011 reforms NSW Police became highly critical of the laws. Rather than praising the 2011 legal response to synthetic cannabinoids the law was criticised for being “nonsensical” from a police perspective as the new threshold quantities were “out of step” with the drug they were designed to mimic (for example, the traffickable quantity was 100 times smaller for synthetic cannabinoids than cannabis) (cited in NSW Parliament Legislative Assembly Legal Affairs Committee, 2013, p. 25). Even more problematically, the new laws gave powers that were not readily enforceable by police. This was because of a host of issues that had yet to be sorted out regarding synthetic cannabinoids, including the fact that only 7 out of 200 known synthetic cannabinoids had been banned meaning that it would be impossible for police to definitively know if something was banned or not (NSW Parliament Legislative Assembly Legal Affairs Committee, 2013). As a consequence police were actively advised to not enforce the 2011 law (cited in NSW Parliament Legislative Assembly Legal Affairs Committee, 2013, p. 15). The main area where police seem to have played a role was in rectifying problems in the threshold system. For example, a key cited driver of the 1988 review was that “operational police experts have had the opportunity of assessing the impact of the current drug quantity levels on law enforcement” and that they had “expressed concern” (NSW Legislative Assembly, 1988, May 25, p. 548). Police had formed the view that the law had had a deleterious impact upon their policing. For example, it was taking up a disproportionate amount of their time prosecuting relatively minor drug offenders. The final group involved in the process were other Australian governments. The first drug trafficking thresholds followed a recommendation of the newly established Australian National Standing Control Committee on Drugs of Dependence and a subsequent agreement by Commonwealth and State Ministers on Drug Abuse to introduce separate offences for drug traffickers (attached to severe penalties) and legal presumptions that ‘possession of specified quantities or more of prohibited drugs should be prima facie evidence of trafficking’ (National Standing Control Committee on Drugs of Dependence, 1969, p. 1). The Commonwealth determinations clearly played a role in bringing the issue to the fore, and offering a proposed (but not tested policy response). That said, not all states ended up implementing all of the agreement. Moreover, NSW quickly became the leader and instigator of threshold reforms, as exemplified by being the only state to employ four then five thresholds. Finally in 1985 and 2013 NSW offered its legislative response as a model for other jurisdictions to follow suit. Role of public opinion The adoption and then expansion of drug trafficking thresholds occurred in an era of rising concern over drug use and abuse, trafficking and organised crime within NSW and Australia more broadly. A clear indication of this was the rise in major government committees and inquiries from 1969 onwards. As shown in Table 2 there were numerous special Inquiries and Parliamentary Committees established throughout this period to address drug (ab)use, drug trafficking and organised crime. Public opinion surveys on drugs only became available from the mid-1980s but as noted by the former Commonwealth Minister for Health Neal Blewett (1988, p. 195) “in tandem with these inquiries, and indeed partly stimulated by them, community concern about the drug problem and the demand for increased government action grew steadily between 1970 and 1984.” Indeed, in a 1986 public opinion survey conducted by the Australian Institute of Criminology heroin trafficking was rated second only to murder (Wilson, Walker, & Mukherjee, 1986, p. 3). This increased political attention to the issue of drugs and their desire to implement new responses that could target drugs/drug

Please cite this article in press as: Hughes, C. E., et al. Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.03.002

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Fig. 1. Number of recorded drug offences (incidents) in NSW from 1971 to 1987/88a , by type (supply versus use/possess). a = Drug offences were not systemically recorded until 1971. Data on use/possess unavailable for 1986/87 and 1987/88.

trafficking. For example, the 1970 parliamentary debates noted how the evils associated with drugs were “only too painfully aware to anyone who reads the daily newspapers” and how “anything the Government can do – compelled perhaps by public opinion – will be of ultimate benefit” (NSW Legislative Assembly, 1970, September 2, p. 5490). By 1985, it was further argued that the government was “stirred into action” by “the reality of public opinion” (NSW Legislative Assembly, 1985, October 15, p. 7833). Role of the drug trafficking problem While there are inherent challenges in discerning the ‘true rate’ of drug trafficking, the available data on police arrests and the conclusions from the Royal Commission into Drug Trafficking in NSW (1979) which undertook a three year examination of drug use and trafficking shows the introduction of thresholds largely preceded actual drug trafficking increases in NSW. For example, as shown in Fig. 1 thresholds were introduced at a time when drug trafficking offences were rare with increased offences occurring years later: in the early to mid-1980s (New South Wales Police Department, 1984, 1985). Even then it is important to note that at least some of the latter increase is likely to be attributable to a reporting increase, rather than a real increase in offending following a significant increase in the number of police officers assigned to drug detection work (see for example New South Wales Bureau of Crime Statistics and Research, 1987; New South Wales Police Department, 1985). The Royal Commission further showed that in 1970 the thresholds were introduced in spite of the main drug market (cannabis) being so limited that it was easily catered for by wild cannabis supplies. It is thus unsurprising that as outlined earlier there were little overt signs of law enforcement calling for legal thresholds in 1970 or earlier: for reasons being that drug crime and drug trafficking in particular had yet to become a serious problem in the state (New South Wales Police Department, 1971). This illustrates a clear disjuncture between the ‘problem’ and the policy response. Role of research and data in informing threshold design Research and data has similarly had a limited role in threshold development; particularly in decisions over how many thresholds to set, for what drugs or the specific quantities employed. In part this appears attributable to the introduction of thresholds prior to research into patterns of use and/or trafficking within NSW or

Australia that could have informed their design: such as the number of grams that is reasonable for a user to possess for their personal use. For example, the first studies into drug use and trafficking from the New South Wales Bureau for Crime Statistics and Research (BOCSAR) were not conducted until 1985 and 1986, and even then they focused exclusively on heroin. Indeed, at this time the decision to enact thresholds in the absence of research could have been justified by the NSW Government in terms of the precautionary principle: the principle that a perceived serious and imminent problem may warrant or justify a response in the absence of definitive evidence (Calman & Smith, 2001). That said this provides a poor explanation for the haphazard way that research and data were used when it was available. It is clear that some available research was ignored. For example, in spite of there being little documented use of stimulants in 1970, the 1970 law simultaneously introduced thresholds for heroin, cannabis, methamphetamine, cocaine and ecstasy. Moreover, preceding the 1985 expansion the NSW Royal Commission into Drug Trafficking (1979, p. 343) found no evidence of Mr Bigs operating within the NSW drug trafficking arena and actively disputed the notion of Mr Bigs that were “frequently reported by sections of the media.” While other aspects of the inquiry were noted in the 1985 parliamentary debates, the absence of Mr Bigs was ignored, cementing the notion of drug traffickers operating in rigid hierarchies and the necessity of an increasingly tiered threshold system. The pinnacle role for research and data in the NSW threshold development was clearly at the time of the 1988 revision: through in particular the new BOCSAR studies into drug use and court data. For example, by revealing that 15.7% consumed more than 1 gram each day (Dobinson & Ward, 1987) and that total weekly consumption of heroin ranged from 1 to 35 grams (Dobinson & Ward, 1985) the BOCSAR studies called into question the assumption that 2 grams was sufficient grounds to assume trafficking intent: Recent studies by the New South Wales Bureau of Crime Statistics and Research have established more detailed drug user profiles so that now we can measure the propriety of the Act’s initial assumptions about drug use. . .. On current information, an addict will use, on average, between a half a gram and 1.5 grams a day. . .. What is required is a change in the trafficable quantity that properly reflects the likelihood that someone in

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possession of a quantity of prohibited drug is a supplier (NSW Legislative Assembly, 1988, May 25, p. 547). The court data moreover definitively demonstrated an unintended consequence from the 1985 threshold quantities: namely a 20% increase in minor drug offences being prosecuted in the higher courts. That said, in spite of the proven worth of such data in supporting or refuting assumptions underpinning threshold quantities and documenting the presence or absence of unintended impacts of the adopted quantities, in years since research and data has again had a minimal role. Discussion Drug trafficking thresholds have long been used, contested and fought over. Yet, the policy processes underpinning their development have been rarely examined. Although we cannot be definitive, it appears that while justified as a necessary tool for effective law enforcement of drug trafficking, the introduction of legal thresholds for drug trafficking in NSW largely preceded overt police calls for reform or actual trafficking increases. They instead appeared to be much more influenced by apparent public concern about drug use and Government desire to enact a response. Moreover, while their expansion from one to four thresholds had the stated intent of differentiating small scale and large scale traffickers, the quantities employed were based on government assumptions. This ultimately led to “manifest problems” and their wholesale revision. Equally importantly, even following this revision and the simultaneous acknowledgement of the importance of the actual thresholds amounts, there has remained to our knowledge no subsequent review process of NSW legal thresholds, or expanded avenues for transparent or expert input. Instead, new threshold quantities for ‘legal highs’ continue to be added based on assumptions and uncertain evidence. It is important to re-emphasise that this has been a study of the policy processes, not the impacts. That said, it adds to our existing research, by showing that some of the identified problems with the NSW drug trafficking threshold system (including threshold quantities that are low relative to many typical patterns of drug use) (Hughes et al., 2014) may be attributable to the ad-hoc nature of the threshold development process. Critical analysis of legal developments is always complex, particularly when it spans 41 years. As such there are a number of limitations with this analysis. The first is that the analysis was restricted to publicly available documents, data and research. Other data sources such as the perspectives of policy makers involved in the processes, may well have filled some gaps or provided different accounts. That said, the ability to fill gaps from the first laws in 1970 is likely to be particularly small. Second, the study focused on some aspects of the policy processes, but left unexamined other potentially important aspects, including the role of ideology and the settings in which policy processes occur. Third, as a qualitative analysis of a policy process, this is by necessity an account; and others may well have derived a different story. This analysis has revealed some important insights into threshold laws. First, it indicates noted conflicts in the policy process underpinning threshold development. For example thresholds were argued as essential for law enforcement/criminal justice, yet such stakeholders had limited involvement in the process. Equally importantly, while argued to provide a very well designed tool (a “comprehensive” and “considered” tool), thresholds were and continue to be devised in an absence of clear data and in a non-transparent manner. Second, there are some clear similarities and noted differences to the US Anti-Drug Abuse Act threshold developments involving crack cocaine and powder cocaine.

Both processes were shaped by sometimes erroneous assumptions, rising public concern and the framing of the debate in emotive terms, all of which curtailed legislative deliberations (US Sentencing Commission, 2005). One noted and unexpected difference is that the NSW process has appeared more willing to recognise problems in the threshold system and to change or add new laws through wholesale revision and/or closure of “loopholes” e.g. ongoing supply. There is no doubt that the 1988 revision in particular has had important implications, even if only by reducing the number of users within NSW who would have been placed in positions of exceeding the legal thresholds (Hughes et al., 2014). Nonetheless, why the NSW Government failed to build a subsequent review into the reform process remains puzzling, and makes it difficult to conclude that thresholds in either the NSW or US context were well designed. Extending this analysis to threshold developments in other countries and contexts is clearly warranted: to see whether these are isolated instances of arbitrary threshold designs, or as feared by many opponents, they are indicative of the norm. The analysis also raises some implications and quandaries about policy processes more generally. First, while evidence-informed policy is much sought after there are many instances where complete knowledge is not possible or where the risks from failing to enact a response may be high. Both are specific and known dilemmas in devising current policies on ‘legal highs’ (see for example Griffiths et al., 2013). It is clear ‘good sense’ can prevail in the absence of evidence: and that doing so may lead to effective outcomes or avert worse outcomes. But it also clear that acting in the absence of evidence can create new problems, or increase as in this case some of the very problems that the policy sought to avoid. This raises the question of the extent to which policy development should proceed in the absence of evidence, and how risks could be averted. At least from the current case study it is hard to not conclude that the decision to employ and expand a highly technical response created a high risk of error, which could have been mitigated through a less expansive system and more use of evaluation and/or expert input. Second, this illustrates the clear need to better understand the role that researchers and advocates can play to foster evidence-informed (and consultative) processes. One interesting observation from the current case was that the law enforcement sector was systematically excluded from the policy process and that this occurred in spite of the reforms being largely justified on their behalf. This raises the question of whether by working with this sector researchers and advocates would have the opportunity to both revisit the thresholds and insert greater use of research into the policy process. In conclusion, by examining the case study of New South Wales it has become apparent that there has been a high level of arbitrariness in the design of NSW legal thresholds. That this has persisted from introduction until the present day largely reinforces the fears that thresholds have been either unnecessary and/or ill-designed. Our narrative therefore provides an essential platform for future policy consideration and reform of the NSW threshold system and for arguing for increased attention to threshold systems more generally.

Funding This study was conducted at the Drug Policy Modelling Program (DPMP), which is located at the National Drug and Alcohol Research Centre (NDARC). DPMP is funded by the Colonial Foundation Trust. NDARC is supported by funding from the Australian Government. Professor Alison Ritter is a recipient of a National Health and Medical Research Council Fellowship.

Please cite this article in press as: Hughes, C. E., et al. Legislating thresholds for drug trafficking: A policy development case study from New South Wales, Australia. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.03.002

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