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Alternative Law Journal |
LACHLAN HARRIS[*] examines proposed amendments to Victorian legislation which will have the effect of criminalising a health problem.
The Victorian Government tabled legislation on 8 May 2003 that proposes to use police powers to reduce the inhalation of volatile substances by Victorians. The legislation will amend the Drugs, Poisons and Controlled Substances (Volatile Substances) Act 1981 (Vic) (the Drugs Act), so as to grant police the power to use reasonable force to search, apprehend, detain, and transport young people who are reasonably suspected of inhaling volatile substances or having the intention to do so. This proposed response to the problem of the inhalation of volatile substances has been criticised by an unlikely coalition of stake holders, including drug and alcohol workers, youth and Indigenous advocates and the Victoria Police, all of whom believe this policy is criminalising a health problem.
Chroming is the Victorian colloquial term for the inhalation of volatile substances such as spray paint, glue and other legal chemical products. Chroming is a controversial issue in Victoria, and has already claimed one ministerial scalp. It is a serious problem for at-risk youth in Victoria, especially those who have already had contact with the juvenile justice system and in particular, juvenile detention centres. Margaret Stuart, the Director of the Victorian Aboriginal Youth Support Program, an advocacy program for Indigenous youth caught up in the juvenile justice system, believes that chroming is 'our single biggest challenge'. The Drug Information Clearinghouse reports that long-term health problems associated with chroming include 'sudden sniffing death, caused by total heart failure, permanent brain damage and blindness'.
Chroming presents a unique challenge to legislators concerned with the adverse health effects of the inhalation of volatile substances because the substances themselves are not only widely available, they are also legal. Despite these challenges the Victorian Government amended the Drugs Act in order to 'protect the health and welfare of children who abuse volatile substances or are at risk of abusing them and to prevent young people from causing themselves further harm', according to Victorian Attorney General Rob Hulls.
According to Section 1 of the Bill tabled on 8 May 2003, the Drugs Act is to be amended to:
enable members of the police force (a) to search persons without warrant in certain circumstances for the purpose of seizing volatile substances or items used to inhale volatile substances; and (b) to apprehend and detain persons under 18 years of age to protect them and others from the effects of inhaling volatile substances.
Section 60L(3)(a) of the amended Drugs Act declares that young people who are detained under this legislation are 'not under arrest in relation to any alleged offences'. Participants at a chroming conference held by the Victorian Department of Human Services on 24 April 2003 were told that the granting of power to the police to use reasonable force to apprehend and detain young people suspected of chroming, or having the intent to chrome, under s.60D(c) of the amended Act was not an arrest power because it was the exercise of a 'civil detention power'. Civil detention powers were well received in the context of year 2000 amendments to the Intoxicated Persons Act 1979 (NSW). However, in that situation the civil detention powers represented a divestment of powers away from the police. The opposite is true under the amended Drugs Act, with the Victoria Police powers being substantially increased by these amendments. Thus the 'lesser of two evils' argument that convinced many people in the NSW context holds no water south of the border. Rather than winding back the police response to the problem of the inhalation of volatile substances, this legislation has the first shot at using the thin blue line to address a health issue. Experience shows that once a police-based strategy is initiated, it becomes politically very difficult to pursue a less heavy handed path. This is primarily due to a fear of popular allegations of 'going soft on crime and soft on criminals'.
Victorian Health Minister, Bronwyn Pike, the lead Minister for this piece of legislation, reinforced this distinction in a Media Release on 23 April 2003 where she stated: 'the Bracks Government would follow the committee's [The Victorian Drugs and Crime Prevention Committee] recommendation not to criminalise the practice of chroming as it was likely to be counterproductive'.
However, several key stake holders involved in the development and implementation of this policy of apprehending and detaining young people suspected of inhaling or having the intention to inhale volatile substances are extremely concerned with this choice of policy direction. Most surprisingly the Victoria Police have gone on public record to air concerns about the policy vector this legislation sets. Inspector Steven James, Manager of the Victorian Police Drug and Alcohol Strategy Unit was recently questioned as to why civil detention powers were not arrest powers, and consequently why this legislation is not criminalising chroming. He replied: 'the Victoria Police has flagged their concern about the criminalisation of what is basically a health issue'.
In an unusual rejection of police power investment by the police themselves, the Inspector went on to comment that: 'chroming is an issue for health, it is something that they should be equipped to deal with; we shouldn't be using the long arm of the law'.
David Murray from the Victorian Youth Substance Abuse Service is also very concerned about the impact the legislation will have. He believes that this legislation represents a 'law and order approach to a health problem' and is a 'pointless exercise of power and will be counterproductive'. Chroming is generally regarded as a consequence of other child welfare related matters such as physical or sexual assault, neglect, mental health issues, and other factors that push young people towards abusing volatile substances. According to David Murray 'none of these issues have been seriously addressed by this policy so far'. Even more concerning for many youth workers and advocates, especially those working with young Indigenous Australians, is the well-known potential for more serious charges to arise from the increased interaction between police and young people suspected of chroming that would occur as a result of the introduction of this legislation. David Murray believes it is inevitable that young people detained under the amended Drugs Act will eventually begin 'reacting negatively to any attempted detention and this could lead to other charges such as resisting arrest, abusive language and so on'.
Rob Hull claimed in his statement of 23 April 2003 that 'It is not the intention of the new laws to bring children into contact with the criminal justice system'. However, as long as the Victorian Government continues to insist on using police powers to deal with what is widely acknowledged as a health problem it is inevitable that the practical reality of the use of those powers will contradict any benign legislative intent. As long as the paradigm of using the police to cart away people affected by volatile substances is the central narrative of the Victorian Government's policy platform regarding chroming, then, regardless of intent, the inevitable outcome is the criminalisation of a health problem.
[*] Lachlan Harris is editor of the Australian Indigenous Law Reporter and is legal correspondent/or the Koori Mail. email: ailr@unsw.edu.au
© 2003 Lachlan Harris
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2003/43.html