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Thursday, 18 May 1972
Page: 1790

Senator WHEELDON (Western Australia) - I wish to speak rather briefly on this matter because I know that the time available for debate is limited. Those honourable senators who were members of the Senate Select Committee on Drug Trafficking and Drug Abuse, as I was, aleady have had the opportunity at least of influencing in some way what is contained in the report, and also of speaking on matters relating to drug trafficking and drug abuse during the proceedings of the Committee. However, I feel that in my own case I am obliged to say at least something because I was one of the senators who brought down a minority report. For that reason I think it would be improper for me not to give some outline of the reasons why 1 was impelled to come to the conclusions which I reached.

Drug trafficking and drug abuse is a very large problem because, as I think is well known, the nature of the drugs which are susceptible to abuse is very wide, ranging from those drugs which are available for medicinal purposes and which may be excessively taken, through to other drugs which are taken for the purpose of pleasure or for relief from the tensions of everyday life. Some of the drugs in each of these categories are acceptable to the law and to society generally, and others are unacceptable. Some drugs which apparently have a medicinal purpose are easily available although they are dangerous. Others which are equally dangerous and which do not fulfil the medicinal purpose which they are alleged by their makers to have, are not accepable to the law and to society. In the same way, there are drags which are available for pleasure, or at least for nontherapeutic purposes, which are acceptable to the law and to society. There are still others which would seem to be not more dangerous - perhaps in some instances they are less dangerous - which are subject to the scrutiny of the law and to penal sanctions and are generally condemned by society.

One of the outstanding features of human beings is that for as long as their history has been recorded they have sought relief from the tensions, strains and agonies of everyday living in various forms of drugs, lt is obvious that most human beings naturally find that life itself, even in the best circumstances, imposes strains, tensions, sorrows and hardships upon them and they look for various forms of relief from the exigencies of day to day living. This relief is not always sought in drugs. Various solutions are sought by people to distract their attention from everyday problems. I think it can be well said that there are people who turn to harmless activities such as listening to music, reading, taking up hobbies, engaging in sport and all sorts of other activities whose purpose is largely to distract them from the day to day problems they have if they are constantly facing their responsibilities and con stantly struggling to achieve some material success or, indeed, any other form of success.

But one of the more harmful remedies to which people have looked through many centuries to solve their problems has been the taking of various forms of drugs. Alcohol is one of those drugs. It has been resorted to by countless millions of people over the centuries. It has caused very great hardship and suffering to many people. I think that most people are well aware of the dangers of alcohol in the same way as I think most people are well aware of the dangers involved in the use of tobacco. Nonetheless, people are. prepared to take the risk of the disabilities and the physical and perhaps mental suffering which this practice may cause them because, it would seem, they do find that the. relief which they obtain from alcohol, irrespective of the aftermath, is worthwhile. This tends to distract them from their day to day problems of living. The old saying that the cheapest way out of Manchester is two penn'orth of gin is a proposition which I think still applies, and it does not apply only to 19th century Manchester when the people were living under all the exigencies of the industrial revolution such as poverty and bad housing. There are many people today living in the same economic and social situation, although it cannot be compared to the situation of those who lived in poverty in Manchester in the 19th century, who still want to drink, to give an example of one drug, for relief from the pain and suffering which they feel, for whatever reason, as they go through life.

The problem which I think society is faced with in dealing with those who have over indulged in drugs which are harmful to them and, in turn, to society - I am not referring to the abuse of therapeutic drugs - and in dealing with those who perhaps have not over indulged but have indulged only momentarily in those drugs which, of their very nature, can be seriously damaging, such as heroin, is that it has to come to a conclusion on where it should draw the line in dealing with them. At what stage should society say that the consumption of a drug is so harmful that it has to be prohibited, even though this action does deny certain freedoms to people to do what they want to do with their minds and their bodies? On the other hand, the other consideration which has to be taken into account - this is part of the same problem - is at what stage, society is entitled to say that as the drug is harmful it is entitled to take away this man's or that woman's freedom to indulge in it. In this regard I think one is faced with the problem of alcohol. Even though a 55-year old man who might consume a couple of beers or whiskies every day is shortening by 5 years his life expectancy or his ability to do useful work but at the same time is enjoying his life, can one say that he should not do it even though those extra 5 years of life will be more painful to him than if he were not to have the comfort which alcohol provides? These seem to me to be very real problems which have to be looked at by society.

Tolerance has to be shown to the people who take drugs, whatever the drugs may be, because however dangerous the taking of drugs may be to society, however advisable it may be in certain instances to impose penal provisions on those who provide or use drugs, all of us must recognise that the person who commits an offence against the law by taking a drug, by doing something to himself, even if this means in the long run some damage to society which has to look after him, is in a different category from the person who engages in violent assaults or thefts or engages in deliberate actions whose purpose is to inflict harm on other people. Even though the consequences to society in the long run may not be different, clearly the intention of the alcoholic is different from the intention of the burglar, murderer, garotter or thug. Even though it may turn out in the long run that the actions of the alcoholic are just as costly to society, clearly a distinction must be drawn in the approach to this person.

Senator Byrne - Could not a better parallel be drawn with someone who commits manslaughter?

Senator WHEELDON - But even then manslaughter does imply within itself that action of some sort is taken against another person, even though inadvertently, whereas the drinking of the alcohol which makes a person an alcoholic is, in itself, a private action in which no other party is involved and no other party need necessarily be involved. One can only assume that in time excessive prevalence of alcoholism will cause some cost to society. In approaching this matter I tried to select criteria which I felt should be applied in order to try to reach conclusions about what ought to be done about the particular drug marihuana which has obtained some notoriety in this country in recent years. I have reached the following general conclusions and have tried to apply the following principles in reaching the recommendation which I made in my minority report.

First, I believe that society should intervene by way of the law only in those matters which are the direct concern of society. I do not believe that if one can establish that an action is in itself a purely private action there should be any interference, whatsoever by the State. For example, if it can be established that somebody spent a lot of time listening to what could be regarded by an objective aesthetic judge of music - if there is such a person - as poor music, or somebody spent his time reading bad novels, I do not think that the, State ought to intervene and direct him not to listen to this musical rubbish or not to read that literary rubbish. I do not believe that he should be directed to listen to better music or to read better books. I believe that this principle can be intended to deal with a drug and that before the State should intervene by legislative action and the imposition of penal provisions it needs to establish that the taking of the drug is of some concern to society. But if the taking of the drug does not harm the person who is taking it in such a way that he is likely either to engage in actions which are damaging to society or in actions which will damage himself so that he will impose a burden on society which will have to look after him, I do not believe that the State should intervene in such a case.

Secondly - and this is part of the first proposition - I believe that before any activity is made unlawful a judgment has to be made whether the activity, insofar as it would be engaged in by a reasonable person, would bring about harm; that is to say, I do not believe that the. possession of axes or scissors ought to be made illegal just because somebody may put an axe or a pair of scissors to unreasonable use by attacking somebody else. I do not believe that the possession of motor cars ought to be made unlawful just because, some person may drive a motor vehicle negligently and kill other people, or because someone may deliberately drive a motor car into something or some person. All sorts of materials are in existence all around us which, if used in a manner not in accordance with their reasonable use by a reasonable person, can be harmful. If they are not used reasonably by a reasonable person they can cause harm.

I believe that the same criterion has to be applied to drugs. I do not propose to argue whether it is a fact, but if, for example, it can be established that the reasonable marihuana user is nol suffering any dire effects which impose a burden on society, it is not reasonable to say that marihuana should be illegal because somebody who smokes marihuana constantly for 3 weeks will be in such a state that he can cause a danger to society. I do not believe that this is a reasonable argument to put forward because, if a person is in such a condition that he will make such unreasonable use of a drug, this person could be just as likely to make unreasonable use of an axe and hit somebody on the head with it.

The next criterion which I think has to be applied, if one has established that there needs to bc some potential for harm to society in the use of a drug before its use is prohibited, concerns the imposition of a responsibility on those who wish to prohibit any particular activity to establish that there is at least a reasonable chance that: the use of this substance - or engaging in that activity - is harmful. 1 do not believe that the responsibility should be imposed on those who believe in freedom to establish that the freedom which they are advocating is nol harmful and never can be harmful in any circumstances. In fact, it would be impossible to justify in this sense practically any substance which we now use. Nobody can establish that butter in all circumstances is harmless or that strawberry jam in all. circumstances is harmless. Any one of these substances in particular circumstances can be harmful if it is used in a special way - at a particular temperalure - or injected into the veins or arteries by a hypodermic needle.

I submit that the onus is on those people who wish to prohibit an article to establish that it is dangerous. The onus should not be on those people who say that the activity should be allowed. The onus should not be on them to establish that the practice is not harmful. Turning to marihuana, I am afraid that I am not convinced by the argument that it has still not been proved that it is harmless. I do not believe that it ever could be proved that it is harmless any more than it could be proved that salt or sugar is harmless. All these things can be harmless but what I say about marihuana is that sufficient evidence exists at present as a result of inquiries which have taken place throughout the whole world to show that marihuana has not been proved to be dangerous and any suspected dangers are of such a nature that they are considerably less than the dangers of other commonly used drugs.

In referring to inquiries 1 have in mind particularly the most recent inquiry by the presidential commission in the United States which has recently published its report. Similar reports have been brought down in Canada, Great Britain, the Netherlands and other countries. All of the systematic reports which have been made on the subject contain the conclusion that marihuana has not been proved to be dangerous and have recommended that either the drug should be made legal or at least the penalties ought to be substantially reduced. Whatever the question may be as to the action to be taken, I do not think anybody would dispute that the findings of responsibly constituted bodies throughout the world - and most recently the presidential commission in the United States - have been to the effect that there is no harm in marihuana.

Senator Cavanagh - lt did not. recommend legalisation, did it?

Senator WHEELDON - Yes, the last inquiry did. If the honourable senator reads the presidential commission's report he will find that it clearly recommends legalisation. I certainly do not wish to put words into the mouths of my colleagues on the Committee but I think that all of them, including those who were certainly not prepared to go as far as I wished to go in my minority report, were of the view that marihuana was at least not as dangerous as a number of other drugs. The report of the Committee contains at least the recognition that marihuana falls into a different category from drugs such as heroin, opium, and cocaine.

Senator Marriott - It suggested that there ought to be a change in classification.

Senator WHEELDON - There is a recommendation for a change in classification, and also a recommendation regarding the penalties to be imposed on minors found in possession of marihuana.

Sitting suspended from 12.45 to 2.15 p.m.

Senator WHEELDON - Before the sitting was suspended for lunch I was enumerating some of the principles which I believe should be applied in coming to a conclusion whether a particular drug, in this case marihuana, ought to be prohibited by law. The first principle which I believe should be considered is this: Before such a law shall be justified it shall be necessary to establish that it is a proper interest of the State to regulate such activities. The second is that if it can be established that it is a proper interest of the State, and if it is believed that the use of this drug may be harmful to society, then the onus is upon those who wish to prohibit the drug to justify its prohibition, rather than for the onus to be upon those who say that it should not be unlawful to prove that the use of this drug is never harmful in any circumstances and that there is no possibility of its use being harmful.

The third proposition which I believe ought to be considered is whether in fact the law is enforceable. Nothing can be more damaging to the fabric of a democratic society, of a properly conducted State, than to have laws which are openly defied, laws which a very substantial section of the community believe should not be applied and which in fact are nol applied. I think it is well known, for example, that in the United States of America the prohibition of alcohol from 1919 to 1933, under the Volstead Act, led to a very great increase in crime in that country, not only crime which directly resulted from the inclusion of the possession of alcohol within the framework of the criminal law but also a number of other crimes which arose indirectly. Criminals used the illegality of alcohol to terrorise people who were engaged in the illegal traffic in alcohol. Because of its illegality, people trafficking in it were unable to obtain the protection of the law.

There are many criminologists who hold that this is the present situation resulting from the prohibition of marihuana; that there are people engaging in the illegal traffic in marihuana who, with that illegal traffic in marihuana as a base, are extending their illegal operations into other fields, and that the very illegal traffic in itself produces various other crimes. This has been particularly evident in parts of the United States.

I think it may be said also - evidence to this effect was given to the Committee - that the fact that marihuana at present is only obtainable illegally and that the sort of persons who are engaging in the illegal traffic in marihuana are the sort of people who, in many instances, also engage in illegal traffic in other drugs, leads people who are using marihuana to come into contact with other dangerous drugs. In fact many people first acquire their association with the pushers of heroin and the opiates because they have come into contact with these people as vendors of marihuana.

One of the other consequences of making illegal an activity which a great many people regard as not being harmful - I admit that if in fact it is harmful this is a consequence which has to be faced, and if there is some doubt about its being harmful it certainly is something which has to be considered - is that those people are not impressed by the present arguments about the illegality of marihuana. They feel that society, the State, is acting foolishly in prohibiting marihuana. As a consequence they come to the conclusion, perhaps illogically, that the arguments leading to the prohibition of other drugs are just as foolish as the arguments relating to marihuana. They see the prohibition of marihuana, a drug which appears not only to them but also to the members of the American Presidential Commission, for example, not to be harmful, as a basis for believing that the law makers are poor judges of what is harmful and what is not harmful. Therefore they believe them to be equally poor judges when it comes to heroin and the opiates. The consequence of all this is that not only does the prohibition of marihuana not stop a great many of these people from taking it, but in effect it acts as some sort of encouragement to them to take other drugs.

The fourth criterion which I believe should be applied in a matter such as this - perhaps it is the most important criterion and an essential one in judging the efficacy and desirability of any law - is the question of whether the social cost of (he prohibition of some action may not be greater than the harm which results, or could result, from allowing the activity to remain lawful. As an instance of this, 1 certainly believe that the use of alcohol is harmful to society. I do not think anybody could deny that the use of alcohol is undesirable and that it has caused considerable suffering, hardship and cost to individuals and to the community generally. I believe it has been shown in other countries - and it soon would be shown in this country - that if this activity, which is desired by so many people, were to be prohibited by law and penal sanctions were to be imposed on those who trafficked in alcohol or possessed alcohol, the consequent disruption of society, the consequent inconvenience, to put it at its mildest, imposed on those people who make moderate use of alcohol would be greater than the existing cost of alcohol being made available legally.

It must also be said about this question that part of the social cost of the prohibition of marihuana may be seen in the fact that prohibition is not effective. It was shown clearly in the United States that despite the most draconic laws imposed, by the Marihuana Tax Act of 1936 and other subsequent measures, the use of marihuana has increased steadily. There are some 25 million people who have made use of it in the United States despite its illegality. lt has been said that if it had been known at the time tobacco and alcohol were first used that they were just as dangerous as marihuana these things would have been prohibited also and that this would have been a good thing. 1 have heard this said, in fact, by the Minister for Customs and Excise (Mr Chipp). 1 do not believe that an examination of the history of alcohol and tobacco would justify this. lt may be remembered that very early in the 17th century, shortly after the intro duction of tobacco in England in 1604, King James 1 wrote his tract 'Counterblast to Tobacco'. Penal provisions were imposed for the use of tobacco not only in England but also elsewhere, and they failed. They created a disrespect for the law which meant that certain people were selectively prosecuted while others were not as the widespread use of tobacco became part of the culture of western countries.

In conclusion 1 wish to say only this: J believe that the function of the state is to guarantee liberties to the citizen and not to take his freedoms away from him. Before any freedom is taken away from any person it must be shown very clearly that there are overwhelming considerations relating to the interests of the society or the interests of the state which justify the deprivation of that freedom. I do not believe that this has been established in the case of marihuana. I do believe that limitations should be imposed on trafficking in and possession of marihuana, as I indicated in the minority report I presented. I believe that we will be acting in the best interests of our society if ultimately - 1 believe this will happen in any case sooner or later - we legalise the use of this drug, because in my view the cost of prohibiting it is much greater than any potential cost of allowing people to be free to make use of it.

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