David Heilpern
It was very exciting for a nano-second.
By lunchtime on December 2, 2020 word on the street and online was that the Berejiklian government had bitten the bullet and was about to make a ‘big announcement’ on drug law reform in the wake of the Ice Inquiry.
The state government had hand-picked their Ice Inquiry Commissioner and given him free rein in the expectation he would tow the party line.
Much to the government’s discomfort, Dan Howard SC not only recommended pill testing at festivals, but also the decriminalisation of personal possession of all illicit drugs.
To add to the pressure, Coroner Harriet Graham completed an exhaustive inquiry into drug deaths at festivals, which pointed in the same direction.
This was despite the submissions of the all-powerful police commissioner on both counts.
The Howard and Graham positions were entirely logical and predictable
The Howard and Graham positions were entirely logical and predictable – that’s what happens when you look at the evidence and listen to the experts.
Sadly, December 3 was a classic lesson in right-wing reactionary zeal.
The police minister broke cabinet solidarity and huffed and puffed against any liberalisation of drug laws.
The leader of the National Party frothed at the mouth about sending the wrong message and not going soft on drugs.
The police commissioner is supposedly apolitical, and is meant to apply the laws dished up by parliament, not run commentary on drug law reform.
The police will always go about upholding those laws and we definitely don’t condone or allow any scope for people to take, or carry or supply illicit drugs
However, Mick Fuller had his deputy commissioner say that, ‘No amount of drug use is acceptable… as it stands right now the laws are very plain and very simple. The police will always go about upholding those laws and we definitely don’t condone or allow any scope for people to take, or carry or supply illicit drugs’.
Fuller’s deputy commissioner left the door open to the diversion from court of some young people.
The Daily Telegraph ran a front-page cover story naming and shaming the promoters of reform in cabinet with the screamingly funny pun headline You Bunch of Dopes.
As always, the Murdoch press, smitten in its symbiotic relationship with the police, runs with the South Park line: ‘Don’t do drugs, all drugs are bad’.
It turns out that the mooted reform itself was pathetically minimalist.
Essentially, it involved extending the cannabis cautioning system to all drugs, with the ability to issue warnings, drug education notices and fines before a fourth offence landed the luckless punter in court.
The whole scheme would be tarnished because the police decide with unfettered discretion who gets to use it
Naturally, the whole scheme would be tarnished because the police decide with unfettered discretion who gets to use it.
And those with a prior criminal record would not be eligible. Which in combination means, inevitably, that First Nations people would be arrested when others would be diverted.
Further, as with cannabis cautioning, that discretion would be liberally applied in wealthy areas, but not so much everywhere else.
Even that wet-lettuce proposal might have been successful had the ALP supported the idea.
But true to form on drug law reform, NSW Labour leader Jodie McKay and the front bench said absolutely nothing.
I’m not yet convinced that what I see on the front page of the Tele is the right way forward
Instead, they let loose that voice of reason, ex-premier Senator Kristina Keneally: ‘I’m not yet convinced that what I see on the front page of the Tele is the right way forward.
I am highly concerned about the decriminalisation of drugs in countries overseas, and the message it sends to young people, particularly on developing brains, and the use of drugs like marijuana on an adolescent brain. So, I would strongly urge the cabinet to slow down and listen to some experts’.
Listen to some experts – like KK and the police commissioner, I guess?
And so here we are.
While the motherland of prohibition, the USA – and countries like Portugal and Canada – show all the benefits of decriminalisation and legalisation, here in Australasia we are stuck in the dark ages.
In Victoria and New Zealand it will soon be legal to kill sick people, but not to smoke a joint
In Victoria and New Zealand it will soon be legal to kill sick people, but not to smoke a joint. That is just the way NSW senior police like it.
Strip search and traumatise children, have them die at festivals because there is no pill-checking, administer 200,000 useless drug driving tests annually, put tens of thousands before the courts on possession charges, criminalise medicinal use of cannabis without prescription, and all at the cost of policing real crime like child sexual assault and domestic violence.
That is just the way the alcohol lobby and the pharmaceutical political donors want it too – no competition is great for business.
Presumably that is also fine with the NSW ALP shadow cabinet – aptly named because they appear so afraid of their own shadows when it comes to contradicting Rupert or the police.
When I first started in practice, I represented homosexuals, abortionists, prostitutes and SP bookmakers, all now decriminalised
When I first started in practice, I represented homosexuals, abortionists, prostitutes and SP bookmakers, all now decriminalised. The sky has not fallen in.
I’ll bet a run to the lighthouse that the only change by March will be the minimalist inclusion of some other drugs in the cannabis cautioning model – and then only for young people.
That is the limit of acceptability set by the police. All because we wouldn’t want to send ‘the wrong message’. Which is?
The Echo presents recently retired magistrate David Heilpern as one of the monthly columnists who will replace the irreplaceable Mungo MacCallum.
David is the author of several law-related books, journal articles and reported judgments.
He was the youngest magistrate in Australia, when appointed in 1998.
For four decades The Echo has printed the stories some people loved, some people hated, and some pretended not to read. If you want us to keep telling the truth, the real truth, not the sugar-coated version. We’ll need your support to keep the presses rolling. 
