Recent reports into the criminalisation of drugs in Australia have all concluded that the criminal law is a counterproductive and harmful way to deal with the issue of drug use and addiction, and that prohibition has failed.
It is now time for the legal profession to add its voice to the community’s calls for reform.
Australia’s criminal law has developed over centuries, by legislation and through the courts as part of the common law. Out of this development came some basic concepts that all law students are taught early in their legal education: mens rea (guilty mind); actus reus (guilty act); the presumption of innocence; the right to silence; and the “golden thread” of the criminal law, that the prosecution bears the burden of proving guilt beyond a reasonable doubt.
Throughout history the common law has never developed criminal offences of drug possession or drug supply. Drug offences are mala prohibita (wrong because prohibited). That is, the drug laws have been created by parliaments over the past century or so. In this time, parliaments have severely eroded and ignored the basic concepts of criminal law that are deeply entrenched in the common law and that underlie legislation.
Due to the widespread popularity of illegal drugs and the fact that only a tiny proportion of drug transactions and drug use are caught by the authorities, parliaments around Australia and the world have continually created legal fictions and extended criminal liability to make it easier to prosecute drug offences.
Some of these legal fictions include: “deemed drug” provisions, where supplying a harmless substance (such as parsley or flour) will be considered supplying an illicit drug if you misrepresent it as such; “deemed supply” provisions, where if you are found to be in possession of a certain amount of drugs it is assumed you had it in your possession for the purpose of supplying it to other people; and “deemed possession”, so that if a drug is found in your house it is assumed you are the owner of it, unless you can convince a jury that you had no knowledge of its presence.
All of these creations fly in the face of traditional common law. They infringe the common law right to silence and the right to be presumed innocent until proven guilty. Instead, the onus falls on the defendant to prove innocence. They also erode the concept that the criminal law should only punish acts where a criminal act coincides with criminal intention.
The drug laws have eroded some of the most important protections the common law has given us. …
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[Hat tip: David Peterson]