A legal challenge to Australian drug policy?

No written Constitution in the history of mankind has ever successfully restrained government. So long as men and women interpret the Constitution, they can make it mean whatever they want it to mean. And as this book by Robert Levy makes clear, expediency – not principle – usually wins the day. However, in the case of the American ‘War on Drugs’ the infraction is blatantly obvious, and has been well documented by scholars.

During Alcohol prohibition in the 1920s, the American government followed the proper constitutional procedure and amended the Constitution. This was the 18th amendment. As we all know, prohibition failed (there is academic consensus on this point) and created problems far worse than alcohol addiction. The modern-day War on Drugs in America has also failed, can never succeed, and is moreover being conducted illegally.

In Australia the legal situation is somewhat different. The federal government’s primary role is to carry out its customs power under section 51 of the Constitution, and it therefore controls the importation of drugs. The Feds can also legitimately exercise influence on the states in relation to drugs policy. I can’t see a way to get around this, given the Australian Constitution is written in a way that lends itself to a broad interpretation of the enumerated powers.

10 thoughts on “A legal challenge to Australian drug policy?

  1. Constitutions routinely restrain governments. However if you’re point is that the restrains are worn down with time and ultimately fail then I agree. They are at best an obstacle that slows the persistent impulse of tyrants and statists. I think that is why they say that the tree of liberty must occasionally be watered by the blood of patriots.

    I do think there are a number of things that can be done to improve the government limiting capacity of our democratic institutions. Sortition for the upper house. TABOR for taxation. Sunset clause requirements for legislation. A well selected bill of rights. Citizen initiated vetos for dumb laws. And state rights to cecede. Of course how these improvements are to be won is a tough question.

  2. We need more checks and balances and we need strong, workable ones.

    The way to attack drug laws would be piecemeal.

    1. The legality of specific law enforcement provisions.

    2. The legality of abridging what could be a legislative right, but granted under the external affairs power.

    However if a complimation of similar complaints was made against the whole system of narcotics laws in the one suit, then the system may get shook up.

    Then there is the argument that customs only ever intended to exclude what was excluded by colonial or British authorities at the time just before Federation. This is weak though and residual powers are weak, but the Commonwealth was never intended to be set up to use vertical fiscal imbalance etc to influence the internal policies of the Federated parties.

  3. why not just move up to Nimbin, since the police there have a relaxed attitude to drugs? (This points up a flaw in the argument, that Canberra is limited in what it can do by itself.)

  4. The first step is to remove federal government jurisdiction from the issue, either through a constitutional amendment (almost impossible) or by a voluntary transfer of powers from the Commonwealth to the states (equally impossible).

  5. Referral powers, external affairs, corporations power, Income Tax Case I, vertical fiscal imbalance basically have been a cocktail to euthenise Federation.

    We need radical legal challenges and constitutional change. The “ststus quo” mob are living in la la land.

  6. Looking to the constitution for a solution is an utter waste of time.

    Australia hates being a first mover, so the drug laws will only be reformed when other countries do it. That’s now a possibility, with Portugal already there and California’s “medical” use of marijuana.

    Mexico might also be influential given its demonstration of the ultimate futility of coercive methods. I doubt if there’s a way out of its problems apart from legalisation.

  7. Nimbin is a violent shithole, precisely because of the prohibition problem.

    Nimbin, about one hour drive from where I live, is a shithole because all the drug losers congregate around the place. Prohibition or no prohibition, for every drug made available there will be x percentage of people who can’t handle it. There is a very good site on drugs – Erowid – but I was recently informed that site was referred to that bloody internet filter.

    The price of marijuana has remained very stable over the last decade, circa 300-400 per oz for premium quality and supply is easy but the recent hits on the bikie trade have made a huge impact. Marijuana used to reflect the gold price. When was gold last 300 per oz? Typical street price for premo now is circa 400 per oz.

    An article on the weekend stated that cocaine now cheaper than footy tickets. I was advised circa 3 months ago that cocaine was selling on the Gold Coast for $40 per gram, which is way down on the 250-300 people used to pay several years ago. I doubted the $40 amount until I read that news item.

    Methamphetamine, a very dangerous drug, is all over the friggin place. Can’t even get ordinary old speed anymore and it wasn’t that dangerous.

    So what was that senate report, “The Winnable War on Drugs”, all about?

    Always remember this: the authorities, be they government or medical, only see those who can’t handle drugs. Their view is skewed because the vast majority of drug users are hidden from their view.

    If you want a different perspective on drug use google – alexander “rat park”. Very instructive re the linkage between childhood deprivation and addiction. Chronic poverty, especially where there is no hope of crawling out,nothing worthwhile to strive towards, strongly predisposes toward addiction. So if you’re wondering about rampant addiction in aboriginal communities … . Terrible, what have we done!

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