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IAN MALKIN[*]
[The trial of supervised injecting facilities is one of a number of strategies that should be employed to address the problems associated with street-based injection drug use in Australia. In this article, it is proposed that these facilities should be trialled in view of their success overseas in lowering the incidence of drug overdose, in preventing the transmission of blood-borne diseases and in reducing public nuisance. It is argued that Australia’s health-related human rights obligations under international law require the trial of supervised injecting facilities. Contrary to the arguments of some, the various drug-related treaties to which Australia is a party accommodate the establishment of supervised injecting facilities. The early success of a supervised injecting facility in New South Wales augurs well for the prospects of decreasing the incidence of overdose and blood-borne disease among street-based injecting drug-users by adopting an approach to drug policy that is based on principles of harm minimisation.]
CONTENTS
[D]rug users are citizens: they include our sons, daughters, brothers and sisters and, increasingly, our parents. They deserve humane responses; let us not wage war on them.[1]
The problem of injection drug use, and in particular the increasing number of deaths arising from street-based injecting, is often acknowledged as one of the greatest social issues confronting the Australian community. Street-based injecting drug-users face serious potential health risks, including risks of fatal overdoses, near-fatal overdoses and the contraction of blood-borne diseases — including HIV and hepatitis C — as a result of unsafe injecting. Australia has moral and legal obligations that require it to act courageously in response to the plight of street-based injecting drug-users, with a view to reducing the potential harm that they may suffer.
One of the strategies that has been suggested to address this problem in part is the establishment — initially by way of a trial — of supervised injecting facilities. This strategy has been employed in Switzerland, Germany and the Netherlands. Although a facility has been introduced in Kings Cross, Sydney, the State of Victoria and the Australian Capital Territory have failed — to date — in their attempts to institute such a measure. Vancouver, Canada, has demonstrated an interest in following the New South Wales lead.
Supervised injecting facilities may be described in the following manner.[2] They are places in which long-term users of injection drugs are able to inject using clean equipment and facilities under the supervision of medically trained personnel. The drugs are not provided by anyone at the facilities, but are brought there by the drug-users. The personnel do not help to administer the drugs, but assist users in avoiding the consequences of overdose and blood-borne diseases that may otherwise result from using unclean equipment and participating in unsafe practices. Supervised injecting facilities also help direct drug-users to treatment and rehabilitation programs, and can operate as a secondary health care unit. Personnel at the facilities provide free sterile equipment, including syringes, alcohol, swabs, water and tourniquets. The facilities are intended to reduce incidences of street-based injection drug use and to prevent the adverse consequences of that type of activity. They are not the same as ‘shooting galleries’, which are not legally or officially sanctioned and are often unsafe.
This article will demonstrate why changes in drug policy, including the introduction of supervised injecting facilities, must be initiated, with a view, always, to fulfilling harm reduction objectives and promoting good health and personal wellbeing. Part II of this article describes the epidemic proportions of Australia’s injection drug use problem, with a particular focus on street-based injecting. This is followed by a brief consideration of the kinds of approaches adopted in response to drug use, ranging from those that are prohibitionist in nature to those that are multifaceted. The nature of the calls for reform, as well as the arguments made against the introduction of supervised injecting facilities, are outlined in Part III.
It is acknowledged that trialling supervised injecting facilities is but one strategy that should be adopted to address a difficult problem. A variety of approaches must be attempted. As Eddie Micallef observes, ‘[t]he drug problem is one of the most complex issues facing society today. There is no simple or single answer to this issue. Illicit drug use affects all communities and every level of society.’[3] Because of the seriousness of the problems associated with street-based injection drug use, many of the bodies and authorities advocating reform seem prepared to desist from moralising, and are instead intent on focusing their efforts on strategic responses to these considerable health risks. The Alcohol and Other Drugs Council of Australia (‘ADCA’) has stated that:
It is clear that the current approaches to treating heroin dependence are not able to meet the needs of all people seeking treatment. There is an urgent need for increased funding for the prevention and treatment of heroin dependence. There is a need for more residential treatment places, greater access to methadone and better resourcing of counselling and aftercare services.
There is also an urgent need to examine innovative approaches to this issue, including diversion from the criminal justice system into treatment, the establishment of trials of medically supervised injecting facilities, and the trialling of alternative treatment options ... Governments should support peer-based programs that aim to educate drug users about safer injecting practices. These strategies also have the potential to reduce the spread of blood-borne viruses among injecting drug users.[4]
Unless governments are able to guarantee an environment free from the dangers of infection and overdose (and manifestly they cannot), then at the very least there is a plain moral duty to face up to those dangers by attempting to address them responsibly.[5] Part IV of this article argues that, in fact, this duty goes beyond being merely ethical in nature: it is also a legal duty. That is, if a principled response based on the desire to uphold harm minimisation principles and reduce health risks is not in and of itself sufficient to compel the enactment of appropriate reform measures, the possibility of Australia being found in violation of international human rights obligations may provide an incentive to introduce them.
Australia has health-related human rights obligations at international law that are derived from conventions. The non-fulfilment of any one of these provisions amounts to a clear violation of our international commitments. It is unreasonable to assert that, because there is a belief that illegal activity should not be encouraged, authorities can virtually ignore the problem of injection drug use by not adopting widely advocated risk minimisation measures. The trial of supervised injecting facilities is one strategy necessary to help reduce the risks associated with street-based injection. The refusal to introduce such an experiment amounts to an abdication of these human rights responsibilities.
Street-based injecting drug-users — many of whom are among the most marginalised and disadvantaged individuals in our community — are also among those most at risk of overdose and contraction of disease as a result of the political choices made by powerful voices in the community (for example, traders’ associations and certain politicians with inordinate power). These drug-users are entitled to more: international human rights law demands that they be granted the highest attainable standard of health care that Australia can offer. It will also be argued that the drug-related treaties to which Australia is a party do not hinder the trial of supervised injecting facilities: they do not prevent the establishment of measures that would fulfil health care protection, and in fact they make allowances for the introduction of such programs.
In addition to the argument that human rights law demands the trial of facilities, the fact that they have been successfully implemented in several European jurisdictions is noted in Part V, with brief descriptions of those schemes. This is followed by an account of recent initiatives in certain Australian jurisdictions in Part VI.
Legislation that prescribes the framework for introducing supervised injecting facilities must be enacted. The enactments must also amend the criminal law appropriately — providing exemptions to what would otherwise be considered illicit or unauthorised use or possession of drugs in the particular context of approved injecting facilities. Reliance on the benevolent discretion of the police or prosecutors — or judges if a matter were to go so far as to produce a charge — to circumvent what might otherwise be seen to be violations of the criminal law, would be inadequate. Dependence on ‘lenient’ interpretations of particular provisions would be too tenuous a basis on which reforms could be founded and criminal sanctions avoided. Rather, clear amendments to all relevant statutes that might otherwise make the provision and operation — as well as the use — of injecting facilities illegal must be legislated.
What is required is a strong vision for a safer community — and the strength and political will necessary to give effect to that vision. The reforms advocated in this article are responsible, reasonable and, most importantly, attainable. They have been established successfully in several European jurisdictions. Australian jurisdictions must follow suit. There is no time, nor excuse, for complacency.
Heroin use can have serious consequences for a user, many of which — such as the risks of fatal overdose, near-fatal overdose, HIV or hepatitis B or C infection — are well known. Lesser known risks include severe abscesses, septicaemia, collapsed lungs and infertility.[6]
Individual tales of ill health are multiplied many times over, with devastating effect. Australia is experiencing a drug problem of enormous proportions. Wayne Crawford writes that ‘[d]eath from opioid overdose has become not only a national epidemic but a national scandal and disgrace.’[7] The ADCA also uses the term ‘epidemic’ to describe the staggering number of overdoses and near-fatal overdoses.[8] It notes that, since 1996, there has been a ‘massive increase in opioid-related deaths in Australia’.[9] In 1998, 737 individuals died from overdoses, a 23 per cent rise on 1997;[10] the national figure for 1999 was 960 deaths.[11] The number of Australian ‘dependent heroin users’ in 1997–98 was estimated to be 74 000.[12] Other consequences of injection drug use, for example near-fatal overdoses and the spread of infectious diseases, are rife. UNAIDS supports this assessment of the problem’s seriousness and urgency, and recently commented on the rapid spread of HIV among injecting drug-users who commonly share unclean injection equipment.[13]
Victoria’s Drug Policy Expert Committee has outlined some of the reasons for the escalating problem of heroin use and overdose. These include an increase in the number, range and purity of drugs that are produced, sold and used on streets, a decline in the price of drugs, and the fact that people using drugs are beginning to do so at an earlier age.[14] It has become apparent that the problem is not one exclusively facing urban communities. Of late, the growing heroin trade in rural areas and the effects of that trade have been noted.[15] Further, the particular problem of heroin use among indigenous communities has been the subject of increasing concern, with Aboriginal leaders calling for additional health funding to address these and related matters.[16] Drug strategies must address the Australian community’s wide-ranging cultural and linguistic needs and acknowledge the diverse communities affected by injection drug use.[17]
Over the last few years, it has become clear that injection drug use affects the whole community. It is not just a working class problem or a problem of the chronically unemployed. Further, one need not be dependent in order to risk suffering the ill-effects of heroin use.[18] However, despite the fact that injection drug use is a widespread problem, the increasing prevalence of street-based injecting is primarily an experience of the unemployed, itinerants, the dispossessed and the poor: recent evidence suggests that more than half of those who inject on the streets are homeless.[19] Additionally, of great concern is the fact that street-based use is prevalent among young heroin-users; by comparison, older users can more readily purchase and use in private.[20]
The most widely discussed consequences of the specific problems associated with injecting drugs on the streets are the regularly reported fatal heroin overdoses and near-fatal overdoses. Injecting on the streets usually involves scenarios of quick use near the location of a drug deal, frequently in a lane or in public toilets. As a result, ‘[t]he health risks to users commonly associated with injecting are increased substantially by street use.’[21] Not only is the sharing of drugs a regular feature of street use, but so too is the sharing of equipment, resulting in serious health consequences.[22] A recent survey of street-based injectors revealed that 47 per cent of respondents had shared syringes because of the cost or non-availability of these instruments, or because they feared police apprehension.[23]
Because the focus of public and media attention has been on the increasing number of overdoses on Australian streets, and to a lesser extent on the contraction of HIV or hepatitis B or C by users, the other types of harm which can result from unsafe injecting on the streets are less widely and commonly acknowledged. These include street violence:
I have seen big blokes stand over younger, more fragile addicts, demanding they hand over their hit. These exchanges — filled with nervous cries of ‘I haven’t got anything’ or ‘I’m clean’ and pervaded by a sense of imminent violence — have sometimes involved young kids being forced to drop their pants to prove they are not hiding caps of heroin. I have seen punches thrown and heard the sickening sound of contact made ...[24]
Apart from the statistical evidence, on a more personal level the consequences of long-term use have been described by one drug-user as follows:
The effect it has on your life is that it just completely blackens out your soul and your spirit and your sense of being in touch with the world around you. I mean, you remain conscious of that but it’s only when you do give up for a while that you really realise how blacked out you’ve been because it blocks out your memory as well. You lose your emotional attachment to things. Then there’s the money aspect of it. People say you burn a lot of bridges when you use.[25]
Other sources of harm include the risks to individuals who might, for example, suffer needle stick injuries from discarded syringes. Moreover, injection drug use on the streets results in nuisance to businesses, which are subjected to the increasing visibility of the drug trade and associated anti-social behaviour, including opportunistic crime.[26]
A marginalized community (in this case injection drug users) is experiencing an epidemic of death and disease resulting not from anything inherent in the drugs that they use, but more from the ineffective and dysfunctional methods that characterize our attempts to control illegal drugs and drug users. ... There is a struggle for power and control over the issue between law enforcement and public health.[27]
Various measures have been instituted to address some of the problems associated with injection drug use. Many of these are largely based on a prohibitionist model with little, or ‘zero’, tolerance for use and possession. Australian drug laws have reflected this essentially abstentionist approach, of which criminalisation of the possession (as well as the trafficking) of prohibited drugs is a central feature; this approach is said principally to be the product of American pressure, adopted internationally (with some important exceptions).[28]
The history of drug prohibition in Australia and elsewhere is shrouded in ignorance, bigotry, racial prejudice and false assumptions. ... But we were also willingly subservient to more aggressive players on the international stage, committed to establishing global control of narcotics. ... Commonwealth and State legislatures displayed a willingness to establish drug control policies in response to overwhelming pressure. For example, the Commonwealth was under considerable international pressure in the 1950s because Australia consumed relatively large quantities of heroin per head of population. This resulted in the total prohibition of heroin in 1953. The rather hurried copying of legislation in the States occurred without questioning whether or not it was good for Australia. There was little investigation of the ramifications of these new policies. Consistently, Australian drug policies have been reactive responses rather than products of political vision, leadership or sound scientific scholarship.[29]
Diane Riley and Thomas Kerr outline several negative consequences that flow from pursuing strictly abstentionist policies: they encourage users to inject quickly, out of fear of police apprehension;[30] an underground market for drugs is produced, with associated crime and corruption;[31] and street-based drug-users often use unclean equipment, increasing the risk of contracting infections.[32] Riley argues that a zero-tolerance model creates a culture of marginalised and stigmatised people who are difficult to reach with educational messages about safe practices or treatment.[33] This is the product of a ‘drug war’ mentality and abstinence-based morality, and the fact that ‘AIDS and other drug-related harms are sometimes viewed as just deserts’ [sic].[34] The abstentionist mind-set undermines community caring by fostering ‘public attitudes that are vehemently anti-drug, and the view that drug-users do not care about their own lives.’[35]
Put simply, abstention alone, as a public health strategy, is not a success.[36] Alex Wodak and Ron Owens note that ‘[p]rohibition is increasingly regarded as flawed in principle and a resounding failure in practice.’[37]
[I]ncreasing the health, social, legal and economic costs of drug use in order to minimise the number of people who use drugs, the very basis of prohibition, produces more net harm to individuals and society than accepting the inevitability of some drug use ... Authorities around the world are increasingly recognising that most problems associated with illegal drugs are caused by prohibition rather than being the inevitable result of their pharmacological properties.[38]
Recognising that strictly prohibitionist policies are ineffectual in stopping drug use, and can have deleterious consequences, a policy of ‘harm minimisation’ has been recommended. According to Riley, the philosophy underlying harm reduction is the desire to reduce the negative consequences associated with drug use; it tolerates (but does not condone) drug use, and accepts that abstinence is not realistic for some users.[39] Drug use is accepted as a fact of life, and attention is devoted to trying to diminish the harmful consequences of drug use on the user and the community.[40] Under the ‘harm reduction’ philosophy, ‘[d]rug dependence is perceived as a public health problem’.[41] So too, the risk of the spread of disease itself is regarded as a public health issue.[42] UNAIDS observes that if comprehensive, wide-ranging harm reduction programs are implemented to combat the spread of HIV among injecting drug-users — including education, promotion of condom use, treatment and needle exchanges — infections can be contained at a low level.[43] It emphasises that this is particularly the case ‘in the many countries where drug injection is a major driving force for the spread of HIV’.[44]
‘One of the main barriers to the adoption of non-prohibitionist policies is idealism. Adopting harm reduction means accepting that some harm is inevitable.’[45] It is an admission that a zero-tolerance approach based on abstention has failed. Harm reduction might be characterised as an acknowledgment that the police cannot eliminate illicit drug use and, in particular, the problems associated with street-based injecting. Indeed, ‘[c]riticism of prohibition increasingly comes not only from health professionals but also law enforcement officials.’[46]
The Victorian Drug Policy Expert Committee notes that ‘drug dependence is a complex condition that needs prolonged and repeated treatment, like any chronic health problem or condition. Most people accept the need for a health response.’[47]
This non-judgmental approach is not new to Australia. Australia has effectively followed a harm minimisation path in the context of drug policy since 1985, with a view to containing the spread of HIV.[48] Part of our success in fighting HIV/AIDS in this country came from governments in the 1980s being prepared to show real leadership and support bold measures, such as needle and syringe programs and explicit community-based education.[49]
The Canadian HIV/AIDS Legal Network notes a similar development in Canada:
[T]he transmission of HIV ... caused a fundamental re-evaluation of the services and programs provided to drug-dependent persons. ... [C]omplete withdrawal from drugs is not a goal that is attainable for many drug users. ... [H]arm reduction, based on a public health model ... was the result of two factors: the spread of HIV to injection drug users, and the belief that existing strategies to combat drug use exacerbated rather than ameliorated the problem.
Harm-reduction strategies seek to reduce the likelihood that drug users will contract or spread HIV, hepatitis, and other infections, overdose on drugs of unknown potency or purity, or otherwise harm themselves or other members of the public ... and stress short-term, achievable, pragmatic objectives rather than long-term idealistic goals.[50]
Most of the calls for change in drug policy embrace a multifaceted, integrated approach[51] — a ‘systematic menu of options and treatments in each locality, rural and metropolitan, recognising the particular needs of special groups such as indigenous Australians’.[52] In his speech to the NSW Drug Summit 1999, Justice Wood advocated the trial of licensed injecting facilities:
The danger we face is a search for a single, simplistic solution, whether by unremitting and unthinking law enforcement or through a magic bullet of a substitute or antidote for an opiate addiction. There is no magic bullet. Law enforcement, no matter how determined and how well resourced, can never prevent the supply, let alone the demand, for these substances. There is no means of inoculating people against the life, circumstances and social events that lead to the cycle of substance abuse and criminality.[53]
The Victoria Drug Policy Expert Committee referred to the National Drug Strategic Framework 1998–99 to 2002–03, whereby all Australian governments agreed to the following goals: supply reduction, demand reduction, and a range of harm reduction strategies designed to reduce drug-related harm to individuals and communities.[54] The Alcohol and Other Drugs Council of Australia concurs:
The national approach should ensure that a broad range of interventions are put in place, including prevention and education programs, support for peer-based education programs on safer injecting practices, fully funded needle exchange programs, fully funded methadone programs, the availability of alternative pharmacotherapies including naltrexone and buprenorphine and support for residential rehabilitation and treatment programs.[55]
The Victorian Drug Policy Expert Committee also highlighted the need to provide education, training and research.[56] Melbourne’s Mayors’ Drug Statement agreed, suggesting ‘the need for a coordinated and diverse response to ... drug related issues ... [whereby] drug use [should] be viewed as a health and social issue, ... [and] that there [be] a commitment to harm reduction’.[57] In order to give effect to this multifaceted approach, diverse segments of the community must be involved,[58] and drug-users themselves must play a significant role in any attempts to formulate appropriate responses.[59]
It is time that we embraced the drug-using community as a part of the solution rather than always treating them as part of [the] problem. ... [W]e need the active participation and wisdom in this process of people who continue to use drugs. That is what has worked in HIV. ... We would like to send messages like, ‘Your life matters to us. We would like you to be part of the solution.’[60]
The main objective of supervised injecting facilities, which is unambiguously based on a harm reduction principle,[61] is to allow injecting drug-users to inject in a safe, hygienic, controlled environment.[62] Such facilities can potentially save lives by enabling immediate responses to overdoses and decreasing the level of blood-borne disease transmission by providing sterile injecting equipment and education about safe injection practices. They can facilitate necessary health care, and give clients information and advice about referrals and counselling.[63] They can reduce public nuisance.
For these reasons, several expert committees’ reports recommend that facilities be trialled. Their recommendations conclude, in rather similar terms, that something innovative must be done. For example, the Alcohol and Other Drugs Council of Australia recommends that ‘a research trial be conducted in every Australian State and Territory to evaluate the effectiveness of medically supervised injecting places’.[64]
The demand for introducing this measure comes from a wide array of sources: academics, researchers, medical practitioners, community groups, segments of the media and professional bodies. These include the Victorian Drug Policy Expert Committee, the Victorian Premier’s Drug Advisory Council and the Alcohol and Other Drugs Council of Australia;[65] Commissioner Wood, in the Final Report of the Royal Commission into the New South Wales Police Service;[66] the City of Port Phillip;[67] members of the public living in the Cities of Port Phillip and Melbourne;[68] the Mayor of the City of Yarra;[69] the Victorian AIDS Council and People Living with HIV/AIDS Victoria;[70] The Age newspaper in Melbourne;[71] some clerics;[72] the former chief of the Victorian Police Drug Squad;[73] health and welfare services;[74] the Law Institute of Victoria[75] and Law Council of Australia;[76] and the President of the Royal Australasian College of Physicians and Dean of the Faculty of Medicine, Dentistry and Health Sciences at the University of Melbourne.[77]
In July 2000, ‘[n]ine prominent Australians ... published a letter calling on Victorians to endorse the State Government’s controversial plan for supervised injecting rooms.’[78] It stated:
The proposed trial of supervised injecting facilities is another worthwhile attempt to improve community safety and save lives. We believe there is a very good chance that this will be the outcome. These facilities should allow drug users to access treatment, rehabilitation and other support services. ... Alone, they won’t stop drug use. That is not the aim. But they will probably reduce risks to everyone. Importantly, they will very likely reduce the heroin death toll. We believe this is an objective worth pursuing and an important message to send. It reflects our common desire for the best and safest community for ourselves and our children.[79]
And parents call for reform:
Tony Trimingham’s son, Damien, 23, died of a heroin overdose three years ago. It was a lonely ending in a disused hospital’s stairwell not far from Kings Cross in Sydney. The needle was still in Damien’s arm when he was found. ‘We’ve already got injecting facilities’, said Mr Trimingham [who later formed the Family Drug Support program] with a tiny trace of irony. ‘They’re just not safe — or supervised.’ ... And his parental perspective, honed as it is by tragedy, tells him that supervised injecting rooms must be tried.[80]
Street-based injecting drug-users also call for reform: Ross, a 30 year-old, who has used heroin for 14 years, and Karen, a fellow user aged 29, ‘said they would use an injecting room. They now use lanes because there is no alternative. “It would clean up the dirty needles you see everywhere and make it safer for everyone,” said Karen.’[81]
More generally, survey evidence demonstrates that injecting drug-users like Karen and Ross ‘overwhelmingly support the establishment of supervised injecting rooms’.[82] In Melbourne, 96 per cent of 215 street addicts surveyed favoured establishing facilities near where they bought and used their heroin; 89 per cent would use the facilities rather than inject in the street.[83] ‘Gender, lifetime non-fatal overdose episodes and frequency of heroin use were all significantly related to a person’s willingness to use [supervised injecting rooms].’[84]
It should, however, be noted that a recent study indicates that some injecting drug-users ‘would never set foot’ in a supervised injecting facility.[85] This in itself should not be reason enough to reject trialling a facility, given that there are a large number of individuals who state that they would use them and receive the benefits associated with their introduction. The fact that some street-based injecting drug-users would not use facilities merely highlights the necessity for a multifaceted approach to drug use problems, and the need to recognise that facilities are not intended to be a comprehensive response to these issues. They embrace a self-contained, limited answer to a complex problem, potentially of assistance to a defined population group.
There has, of course, been vocal opposition to the establishment of facilities. Perhaps the most persuasive body to recommend against their introduction was the New South Wales Joint Select Committee into Safe Injecting Rooms.[86] It did so on the basis of safety concerns associated with administering and operating the facilities, and the impact that they may have on the local community in terms of increased drug-dealing, heightened crime risks, attitudes to drugs, and resource allocation.[87] Four of the Committee’s 11 members dissented, stating that a scientifically rigorous trial should be conducted as part of an integrated public health and safety approach to injection drug use.[88]
The Australian Commonwealth government has been particularly vocal in its opposition to the introduction of a facility, and has instead promoted a platform based on prohibition, law enforcement, treatment, education, and heart-to-heart conversations conducted in traditional family settings. An anti-drugs publicity blitz, costing $27.5 million, has seen eight million pamphlets distributed to all Australian households: ‘I believe that the best drug prevention programme in the world is a responsible parent sitting down with their children and talking with them about drugs.’[89] Justice Sally Brown of the Family Court criticises this approach as counterproductive, narrow in focus and ‘firmly middle class’:[90] ‘the rhetoric of a ‘‘war on drugs’’ was unhelpful because it encouraged inaccurate stereotypes and ignored the complex reasons for abuse and drug abuse.’[91] Justice Brown continues: ‘most people who died from heroin overdose, ... were long-term users, not dabblers, and drug abuse was linked to mental disturbance, in turn linked to poverty, family breakdown and disconnection from services.’[92]
‘Jimmy’, a 23 year-old who began using heroin when he was 14, is one of a large number of individuals who wait outside Kings Cross’ Kirketon Road Centre (methadone, counselling and coffee are available at the Centre, located near Sydney’s recently introduced injecting facility):
These are the desperate people, the often homeless drug users, the hard-core addicts who will be the core clients of the injecting centre. John Howard’s anti-drugs campaign — featuring the booklet sent to every household to educate parents about children and drugs — will not touch them. They usually come from fractured families anyway and the campaign is aimed at prevention rather than cure.[93]
There have been suggestions that the establishment of supervised injecting facilities sends the ‘wrong message’ to the community as it reflects an attitude that injection drug use is acceptable and has official support. It is argued that this will contribute to increased use.[94] This view is based on the contention that an abstinence approach has in fact contained drug use, and that a relaxation of prohibition — in any way — would yield unacceptable results, such as more widespread use.[95] As an expression of this rationale, the Vatican decreed that no Catholic organisation anywhere in the world should take part in the trial of supervised injecting facilities, as doing so — despite good intentions — would amount to ‘cooperation in the grave evil of drug abuse’.[96] Prime Minister John Howard, advocating a response to the drugs problem based on ‘education, crime prevention, law enforcement and rehabilitation’, states: ‘the reason why I’m against heroin injecting rooms and heroin trials is ... they imply an acceptance of something that can have that devastating result’.[97] On keeping young people alive, Prime Minister Howard argues: ‘One way is to communicate to people from the very beginning the folly, the stupidity and the tragedy of starting drug-taking in the first place. That would be far more effective in keeping people alive than heroin injecting rooms.’[98]
This approach is naive and unrealistic. Strict prohibition does not meet its objective: ‘it is fanciful to think that drug addicts can be prevented from obtaining and using prohibited drugs’.[99] In fact, the feared increase in drug use is ‘unfounded and contrary to existing evidence.’[100] In cities with supervised injecting facilities, there is evidence that the total number of drug-users has decreased.[101]
Arguments recommending the introduction of facilities should not be interpreted as coextensive with a view that drug use is desirable. Those advocating the trial of facilities deny that it would send a message condoning drug use. Rather, this reform is a limited, self-contained, responsible harm reduction policy that realistically responds to immediate health risks and dangers that can, at least in some circumstances, be minimised. With respect to the actual content of the messages communicated by the trial of facilities, they need not necessarily be characterised as negative: if facilities are established discretely and sensitively, ‘adverse messages can be avoided and the message itself can be positive and constructive’.[102] For example, the genuine advantages of establishing supervised injecting facilities to health care can be highlighted.
One commentator pointedly asks, ‘[w]hat message does it send to have 1000 mainly young Australians dying in the back alleys of the nation because there is nobody there to help them stay alive long enough to try to get clean of drugs?’[103] Similarly, Simon Castles reflects:
[W]hat about the message we send to young Australians if we don’t try injecting rooms? The message that says the lives of friends and brothers and sisters are expendable. The message that says society doesn’t care much for the weak, lonely and depressed. The message that says it’s better in life to stick with programs that are obviously failing than even to try alternatives.[104]
Needle and syringe exchange programs are widely cited harm reduction measures that represent tangible, sensitive, successful responses to serious public health risks. They are particularly relevant to the discussion of supervised injecting facilities, as they underscore society’s tolerance for non-prohibitionist policies. They provide concrete evidence refuting arguments that harm reduction policies convey the ‘wrong message’. These programs provide injecting drug-users with free sterile injecting equipment (often in conjunction with education measures) to reduce the risk of them contracting blood-borne diseases such as HIV and hepatitis B and C. Exchange programs are ‘to many people, the epitome of the harm reduction approach’.[105] They have been widely accepted as a significant measure through which the spread of serious diseases can be contained, even though they were initially controversial.[106] Wodak and Owens note that the Australian experience in responding to the AIDS epidemic provides a viable model:
Political differences were sorted out in private so that policies emerged which saved many lives, many preventable cases of AIDS and ultimately, many hundreds of millions of dollars. We could only benefit from following similar models for drug policy reform.[107]
Exchange programs have been part of the Australian harm reduction landscape for over a decade, and have ‘resulted in Australia having one of the lowest HIV/AIDS infection rates in the world’.[108] HIV/AIDS prevalence among injecting drug-users is far lower in cities with exchanges than in cities without such schemes.[109] Aside from their direct impact in reducing harm to drug-users by providing sterile equipment, exchanges facilitate users’ access to counselling and relevant referrals.[110] The Canadian HIV/AIDS Legal Network notes that with exposure to drug education — which is more readily attainable by means of establishing exchanges — injecting drug-users are likely to adopt less dangerous behaviour.[111]
Exchanges are but one of many strategies that should be implemented to respond to complex drug use issues. One other related but significantly different strategy is the trial of supervised injecting facilities. Facilities can be characterised as a natural, small step beyond what has already been implemented — and accepted — with the introduction of syringe and needle exchanges. The existence of exchanges is an acknowledgment of the fact of illegal drug use. Ultimately, it is illogical to have measures that offend criminal law norms but are nevertheless tolerated (in the case of needle exchanges) as opposed to measures that could be — but are not — implemented by legislation (in the case of injecting facilities).
The establishment of needle exchanges necessitated a shift in attitude from abstention to harm minimisation: that battle has already been waged and won. Therefore, the furore and outrage from some segments of the community with respect to the prospect of introducing supervised injecting facilities is not entirely comprehensible. Facilities could sit comfortably alongside what already exists as another means of addressing a specific, self-contained, targeted problem: they are simply one more important strategy designed to combat some of the harmful effects of injection drug use.[112]
While facilities and exchanges may sometimes serve broadly similar harm minimisation objectives, this is not necessarily the case. They are different, and are both necessary — as independent measures — to address different types of harm experienced by specific target population groups. Needle and syringe exchanges are primarily concerned with reducing the possibility of contraction of HIV, hepatitis B and C, and other blood-borne diseases (with opportunities to refer clients to treatment, health care and educational services). By way of contrast, injecting facilities not only provide users with sterile equipment (like exchanges), but give them the opportunity to avoid fatal overdoses and near-fatal overdoses, as the injecting is supervised; they also provide other sterile injecting paraphernalia which, if unclean, allow for the spread of blood-borne diseases.[113] Importantly, ‘in contrast to needle exchange outlets where clients generally visit briefly, safe injecting facilities allow for a more prolonged interaction between health-care staff and clients.’[114]
Put simply, with needle exchanges, an injecting drug-user is told, ‘go ahead — society knows what you are doing — but go away and do it’. And this is done with the full knowledge that in other respects that person may be acting unsafely, on the street, subject (for example) to potential violence, and perhaps creating risks for others in the neighbourhood and affecting its ‘amenity’. With supervised injecting facilities, what seems to be most objectionable to some is the ‘official involvement’ in the actual use of the drug — the supervision or oversight. The measure is thus characterised as one that sanctions illegal behaviour in a more intimate or ‘hands-on’ manner than is the case with needle exchanges. But, in reality, this is not substantially different from providing the needle to do what we know the person will in fact be doing — injecting an illegal substance. The significant, positive difference between the measures is the fact that the facilities provide a safer place to inject. Yet facilities themselves are considered by some to be dangerous. It seems odd to have gone so far as to establish exchanges, but to stop short of providing this additional potentially effective harm reduction strategy. The ‘anomalous nature’[115] of this situation is noted in the Final Report of the Royal Commission into the New South Wales Police Service (written prior to the New South Wales trial of injecting facilities):
At present, publicly funded programs operate to provide syringes and needles to injecting drug users with the clear understanding they will be used to administer prohibited drugs. In these circumstances, to shrink from the provision of safe, sanitary premises where users can safely inject is somewhat short-sighted.[116]
Dr van Beek states:
In one sense what we do (at the moment) is quite immoral because we give drug addicts needles to inject, then they go off and do it. ... Sure, they won’t die of AIDS one day in the future. But they might die of a drug overdose, right here and now. Surely we should try to save some of them.[117]
Those resisting the establishment of facilities assert that there is little clear evidence from jurisdictions where they have been introduced that demonstrates their success. In fact, no overdose deaths have been recorded in European facilities, and the numbers of overdose deaths in communities with facilities have declined.[118] One of the most persuasive reasons in support of the introduction of facilities lies in the simple but significant fact that the trained staff are in a position in which they can prevent overdoses — staff can contact ambulance services and can themselves provide immediate medical assistance. It has been argued that there is ‘compelling evidence from the European experience that ... sites reduce both health risks and risks to the community of substance misuse.’[119] More particularly, as one street-based injecting drug-user asserts, ‘[i]t wouldn’t be in anyone’s face ... You wouldn’t get stood over by someone threatening to bash you for your hit, and it would help save lives.’[120]
Even if there were a deficiency of ‘hard’ empirical evidence specifically demonstrating the effectiveness of facilities, logic dictates and experience suggests that there will be some drug-users who would take advantage of the existence of facilities rather than inject on the street, and who would thereby be in a position to be assisted by professional staff should the need arise. It is difficult to determine the degree of success in preventing harm with absolute precision, since it involves proving what might have happened had circumstances been different. Nevertheless, there is little doubt that at least one life could be saved. And the fact of saving one life itself warrants a trial.
Those opposing the introduction of facilities also contend that they are too narrowly targeted to be effective. They suggest that facilities will not have any impact upon those situations where the greatest harm arising from injection drug use occurs — overdoses at home. Proponents of trials do not dispute the fact that a great deal of drug injecting takes place at home, and concede, as well, that there is a segment of the population of street-based injecting drug-users that would not use supervised injecting facilities if they were provided.[121] However, once again these arguments are not sufficient in themselves to justify the rejection of trials. The fact that these facilities would not reach all users simply means that other initiatives must be taken or enhanced. Supervised injecting facilities are not meant to be a panacea, but are a strategic response intended to address the needs of a specific group: they are not intended to address all harms connected with injection drug use or even the more limited street-based injecting problem.[122]
Street-based injecting drug-users are often rushed — injecting quickly because of their fear of police detection[123] and subsequent arrest, or because of anxieties associated with other users’ behaviour. Not surprisingly, there is a heightened risk that appropriate safe injection procedures will not be followed: for example, needles or equipment may be shared or clean water may not be used.[124] Therefore, one of the primary benefits associated with facilities is that some individuals will venture into the premises for the immediate purpose of using the clean equipment provided by the staff in a relatively relaxed, non-threatening environment.[125]
The second related benefit is that the clients of facilities will have made contact with professional staff who can, at the minimum, direct them to appropriate health and welfare agencies, as dictated by the needs of particular cases.[126] The German experience shows that hundreds of clients yearly can be referred directly from facilities to drug treatment, detoxification and abstinence-based programs and methadone schemes.[127] Swiss studies disclose similar results, whereby facility users are directed to harm reduction programs, including those where methadone is available.[128]
One of the most frequently cited objections to the introduction of facilities is that they will attract drug-users and traffickers from outside the area — the ‘honey pot’ hypothesis.[129] Traders, primarily, use this reasoning to justify their opposition to the establishment of facilities in their neighbourhoods. For example, the Fitzroy Street Traders Association ‘categorically reject[s] the establishment of the injecting facilities being located in St Kilda only (and not the other proposed areas)’.[130] Commenting on the ill-fated Victorian initiative,[131] the Association continued:
[T]he small number of facilities currently proposed could result in a massive compounding of the drug problems within the vicinity of these areas. ... [D]rug users and more particularly, drug dealers, will increasingly be attracted to these few facilities. This will result in a further loss of amenity and trade and a probable increase in crime and community trauma.[132]
Those advocating the introduction of facilities contend that the ‘honey pot’ fears are unfounded, as facilities would have the opposite effect: they are intended to respond to the street-based injection drug-using cohort that already ‘frequents the local street drug market.’[133] The location chosen for setting up a facility is usually a well-known, highly concentrated injection drug use and trafficking area. There is evidence to support the view that this population is not particularly mobile — street-based injecting drug-users do not generally travel from one part of the city to another to inject: ‘addicts will travel only a short distance between the point of purchase and the use of drugs.’[134] However, if there is some validity in these concerns, one way of reducing the possibility of a concentrated drug-using population in one vicinity is to establish several facilities in a number of communities, as was suggested under the failed Victorian proposal.
Anxieties regarding the potential ‘honey pot’ consequences can be addressed by registering drug-users who are permitted to enter the facility, so that it can only be used by local users. Further, the police presence in the area could be maintained, as a disincentive to traffickers. It is likely that this would serve to dissuade individuals from outside the area from flocking to it, as feared. It has also been suggested that the facility should be established discreetly, and that its presence not be widely publicised.[135] In fact, some of these suggestions, presumably made so that the establishment and presence of facilities is more palatable to the local community, seem rather odd in that they may, to a degree, defeat the facilities’ objectives. They seem to impose barriers to reaching some local users who would otherwise be desirable clients, as part of the targeted groups.[136]
The disadvantage with this option ... is that it excludes just those users who are most at risk, ie, young new users. ... The fact is ... many ... frequenters of the street injecting hotspots in Melbourne are itinerant and ... homeless [— not local residents. However,] other than residence status it is hard to know what ... evidence of being a ‘local user’ there might be.[137]
One reason for the fear that the concentration of injecting drugs-users would increase with the introduction of facilities is related to the concern that the neighbourhood’s amenity would be negatively affected. If injecting facilities are to be implemented successfully, local communities and nearby businesses must be convinced that the presence of facilities would reduce already existing problems of amenity and in fact benefit the local area. Logically, many of the nuisances associated with street-based injection drug use would be diminished by diverting some (if not all) of that street-based use into government-sanctioned premises.
Facilities will in fact reduce nuisance and visibility problems: crime, violence, loitering, drug-dealing and property damage could be diminished.[138] Many needles would be disposed of safely rather than discarded on the streets.[139] European studies support this contention, with Frankfurt police reporting declines in street robbery, car break-ins, heroin trafficking and related offences after the introduction of injecting facilities.[140]
Eventually, members of the public and traders will come to appreciate and recognise the advantages associated with establishing facilities, when compared with their current experiences. As Clover Moore, a Member of the Legislative Assembly of New South Wales, states, ‘[m]y constituents despair at rising levels of drug-related street crime, dealing, overdosing and contaminated syringe disposal in their streets, on their doorsteps and in their children’s playgrounds.’[141] Supervised injecting facilities have the potential to alleviate these problems.
If government-sanctioned premises are not established, some street-based injection drug use may move off the streets — but into so-called ‘shooting galleries’, a dangerous, unhygienic alternative that promotes behaviour with serious health care consequences. Facilities need to be ‘officially regulated ... in circumstances where it is inevitable that one will be set up anyway, but illegally and officially unmonitored’.[142] Street-based injecting drug-users should be able to inject in a stress-free, hygienic environment with low-risk conditions, as opposed to illegal, profit-based shooting galleries, which are not concerned with users’ health and safety.[143] Legal approval is critical to the ability of supervised injecting facilities to provide health care benefits and enhance harm reduction.
In the course of debating the introduction of a trial in New South Wales, members of the opposition (and the International Narcotics Control Board) disparagingly referred to injecting facilities as ‘shooting galleries’. This use of terminology was condemned by the government. As John Della Bosca stated, ‘shooting galleries’ are places ‘where drugs are illegally injected, where no safeguards are in place, where no treatment is offered and where no concern is shown for the welfare of users.’[144]
Some businesses currently find themselves the locale of choice — or necessity — for some injectors. For example, the management of the George Cinemas in the City of Port Phillip in Melbourne notes that its ‘toilets are presently regarded by injecting drug-users as ‘‘the’’ safe injecting room in the local area as [they] are safe, well lit, have fresh running water and offer privacy’.[145]
Adding to the stress of injecting in that type of environment, the criminal law could be invoked against those using the de facto facilities and against those managing and running them. Even though the police and judicial authorities could exercise their discretion leniently when responding to such violations, this would be unlikely to induce much confidence in any of the participants, thereby adding to the riskiness of the behaviour.
The cost-effectiveness of implementing injecting facilities might provide the motivation necessary for their introduction.[146] Aside from the obvious human toll and tragedy and cost, there is an economic aspect to harm that can be prevented or minimised — as is the case with containing the spread of HIV by introducing needle exchanges. It is beyond dispute that it is less costly to provide exchange facilities (or clean equipment at a supervised injecting facility) than to treat someone with a long-term preventable disease. Substantial health care savings would be realised if fewer individuals needed treatment for chronic illnesses such as HIV or septicaemia or endocarditis.[147] Similarly, with the establishment of supervised injecting facilities, fewer funds would be spent on emergency services (in cases of fatal overdose or near-fatal overdose).[148] Law enforcement costs also could be reduced, with resources diverted to prevention and health care treatment services.[149]
If cost-effectiveness remains unconvincing as a rationale for introducing facilities, perhaps it is more persuasive to view this measure in moral terms. Admittedly, this is a difficult issue — difficult because ‘morality’ is a matter on which minds invariably differ. Nevertheless, it cannot be ignored in any discussion of harm reduction measures of this nature, because one’s values have an inescapable and inevitable effect on any attempt at ‘rational’ analysis. The Joint Select Committee of NSW noted that societal values and personal experiences — constructing individual attitudes — were often fundamental to arguments about the pros and cons associated with the establishment of supervised injecting facilities: ‘It is important to recognise that values and value systems inevitably enter the debate and bear on our personal choices of favoured solutions’.[150]
On the one hand is the view that any drug use is necessarily, inherently wrong and immoral. This belief seems to underlie the philosophy of Fred Nile, a Member of the Legislative Council for New South Wales, who is typical of the most ardent opponents to injecting facilities. He is firmly of the opinion that harm minimisation itself is wrong — a dangerous slippery slope, with no sensible or logical endpoint. With respect to the then proposed NSW trial, he stated:
Obviously if this Summit endorses legal shooting galleries they would eventually be in every town, in every suburb and, dare I say, in every ... high school and university and, perhaps, even in Macquarie Street. They would have to be as accessible as the drug dealer. ... [This will lead to a heroin trial.] As with the needle exchange program, that will be used to help lull public opinion into accepting the proposition that the Government becomes, in fact, the drug pusher.[151]
By way of contrast, others argue that drug use per se is not so undesirable that continued attempts to criminalise and punish that use should be pursued in every conceivable context, regardless of the cost of doing so.
Drug use is not inherently evil ... [Prohibition] ... must be justified on some grounds other than the mere whim of authority; some objectively sound and acceptable evidence is required that convincingly demonstrates the validity of criminalizing activities relating to certain drugs but not others [such as alcohol or tobacco].[152]
The assertions of Professor David Roy and the Canadian HIV/AIDS Legal Network are as relevant to the Australian landscape (and the limited issue of responding to street-based drug injecting) as they are to Canadian circumstances:
It is ethically wrong to continue criminalizing approaches to the control of drug use when these strategies: fail to achieve the goals for which they were designed; create evils equal to or greater than those they purport to prevent; intensify the marginalization of vulnerable people; and stimulate the rise to power of socially destructive and violent empires.
It is ethically wrong to continue to tolerate complacently the tragic gap that exists between what can and should be done in terms of comprehensive care for drug users and what is actually being done to meet these persons’ basic needs.
It is ethically wrong to continue policies and programs that so unilaterally and utopically insist on abstinence from drug use that they ignore the more immediately commanding urgency of reducing the suffering of drug users and assuring their survival, their health, and their growth into liberty and dignity. ... It is imperative that persons who use drugs be recognized as possessing the same dignity, with all the ethical consequences of this ethical fact, as of all other human beings.[153]
Yates v Jones[154] is of interest with respect to the hazards of moralising at the expense of reaching just results. In that case, a young woman became addicted to heroin as a result of events factually connected to a tortfeasor’s conduct. Kirby P dissented, cautioning the New South Wales Court of Appeal not to judge the plaintiff’s claim on the basis of ‘preconceived notions of judicial or community morality.’[155] His comments are a useful reminder to judges, political leaders, business people and academics that there is a need to be sensitive to the realities of many Australians’ everyday lives. He notes, refreshingly and realistically:
Drugs — legal and illegal — are a fact of modern Australian society. Illegal narcotic drugs, as the daily experience of criminal courts demonstrate [sic], are a pervasive feature of the lives of significant numbers of our society, particularly the young and vulnerable.[156]
While it is no doubt true that personal values play an important role in determining individualised responses to the problem of street-based injection drug use, moralising about the evils of drug use should not be permitted to hijack the debate when determining an appropriate community response. Rather, the findings of experts in the field — doctors, scientists, researchers and social workers — and the experience of other states should be given paramount consideration, as must fundamental health care objectives.[157]
[T]his is about being open and honest, and working constructively towards a common goal. It is about being a caring society that treats marginalised populations with dignity and respect and, at the same time, makes the community feel safe and secure. To do that we need to balance public health and public order approaches: not too much of one or the other, but a balance.[158]
Failed policies of abstention have produced debilitating consequences for the dignity of street-based injecting drug-users. When we know that those policies are ineffectual and positively harmful — and that attainable and achievable reform strategies can be effected — how can we as a society refuse to introduce such measures? ‘[M]aintaining the status quo ... is in fact a retrograde step and an admission of failure.’[159] The problem of street-based injection drug use requires an ethical response grounded in caring and social contract, which does not blame users and is not premised on fault. What is needed is a recognition that the reasons for, and problems associated with, drug use are complex;[160] so too are the required responses. What is required is an acknowledgment that, in moral terms, keeping drug-users alive outweighs the ‘moral evil’ of drug use.[161] Policy-makers must approach the problem realistically and humanely, implementing what might be perceived as a radical vision.
Based on scientific and medical research and evidence, it is clear that (i) a serious problem of street-based injection drug use exists and (ii) it can potentially be prevented in certain circumstances. Something can be done about the problem. Moreover, the law demands that these strategies be trialled in Australian jurisdictions. The following section comprises two parts. First, it is argued that international law demands the implementation of this trial — as part of the international legal obligation to provide Australians with the highest standard of health care possible. Not to do so amounts to a breach of this obligation. Second, international law does not prevent the trial of supervised injecting facilities. In fact, those treaties relevant to drugs expressly permit scientific and medical experimentation.
Australia is party to a number of human rights treaties imposing obligations that arguably require the provision of supervised injecting facilities. The refusal to introduce these facilities may amount to an infringement of our obligations under these instruments. The relevant human rights treaties include the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) and the International Covenant on Civil and Political Rights (‘ICCPR’).[162] The fact that these two major categories of rights ‘are interrelated, interdependent, and indivisible constitutes one of the fundamental underpinnings of the international consensus on human rights norms.’[163] Aside from these covenants, the UN Charter considers social rights, rights of an humanitarian character and human rights.[164] Article 55 of the Charter specifically states that ‘the United Nations shall promote: ... solutions of international economic, social, health, and related problems’. The Universal Declaration on Human Rights states that ‘everyone has the right to a standard of living adequate for health and well-being, including medical care and necessary social services’.[165] As Audrey Chapman notes, ‘[h]ealth issues are central to human well-being and dignity and, thus, are central to human rights.’[166] Steven Jamar agrees:
Because ... [the right to health] is a human right, and not just a moral claim, a state is legally bound to do more than nothing to bring it to fruition; this obligation inheres in the term ‘right’ and is found in the general approach of requiring State Parties to the various conventions to ‘take steps’ to effectuate the right.[167]
In its Preamble, the ICESCR speaks of the ‘inherent dignity ... of the human person’ and of how that person’s economic, social and cultural rights should be promoted. Article 12 of the ICESCR imposes positive obligations on parties:
1 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2 The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: ... (c) the prevention, treatment and control of epidemic, endemic ... and other diseases; (d) the creation of conditions which would assure to all medical services and medical attention in the event of sickness.[168]
All persons have the right to the enjoyment of the highest attainable — that is, possible — standard of health, dependent, of course, on a state’s particular economic circumstances. The notion of what is ‘attainable’, coupled with the obligation on states to ‘progressive realization’ of the right to health suggests that what is required by the ICESCR is neither an unachievable ideal, nor a bare minimum, but a realistic standard that is suited to a particular nation’s state of economic development and capacity.[169] Clearly, regard must be had to states’ available resources in deciding whether or not the article’s requirements have been fulfilled.
Not surprisingly, given the breadth of its scope, the ICESCR does not specifically discuss the particular public health concerns associated with drug use, such as dependence, overdose, and the spread of HIV and other blood-borne diseases. While article 12(1) defines the right to health, article 12(2) ‘enumerates illustrative, non-exhaustive examples of States parties’ obligations.’[170] The Economic and Social Council’s General Comment 14 notes that ‘the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.’[171] This at least partially addresses some of the concerns that health — as a right — is ambiguous, reflecting ‘cultural, social, and economic circumstances, as well as individual and medical perceptions of what is normal, habitual, and attainable.’[172] General Comment 14 further states that article 12(2)(c) necessitates the following:
[T]he establishment of prevention and education programmes for behaviour-related health concerns such as sexually transmitted diseases, in particular HIV/AIDS ... and the promotion of social determinants of good health, such as ... education.[173]
General Comment 14 notes that states cannot provide protection against every possible cause of human ill health, including unhealthy or dangerous lifestyles.[174] Violations of the obligation to protect include ‘the failure to discourage production, marketing and consumption of tobacco, narcotics and other harmful substances.’[175] While some might argue that the introduction of supervised injecting facilities is contrary to this obligation, it must be emphasised that these facilities are not intended to encourage drug use — and in fact are only accessible by persons who already use drugs. They are meant to reduce health risks, in situations where drug use would in any event take place, under dangerous conditions. Indeed, they are intended to help give effect to other core responsibilities associated with the right to health: ‘adopting measures to ... control, treat, and prevent the transmission of major epidemic and endemic diseases, including ... AIDS’.[176] Further, it would be disingenuous to suggest that providing injecting facilities (which can reduce the spread of disease and act as gateways to treatment, rehabilitation and education) is in breach of the obligation to protect, while the consumption of tobacco and alcohol is tolerated.[177]
Certainly, one cannot claim that the state is in breach of its human rights obligations by not controlling all drug use behaviour. Rather, the obligation to provide the highest possible level of health care concerns the state’s duty to attain standards by which it can — bearing in mind its resources — ameliorate or prevent some of the serious health consequences of injection drug use, such as the spread of disease. Moreover, with the changing nature of the health problems facing the international community, and in particular with the advent of the spread of HIV/AIDS, there is an increasing need to recognise that the right to health should be viewed as ‘an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health ... and access to health-related education and information’.[178]
The only way to provide some street-based users with access to immediate health care, education and information is to introduce injecting facilities. The establishment of needle and syringe exchanges, while a welcome measure, is not sufficient to meet these objectives, as exchanges may not be utilised by all of the target population groups that injecting facilities hope to reach. The provision of facilities therefore falls squarely within the terms of article 12. Having said that, it is of course important to note that a state has a margin of appreciation — or discretion — with respect to its determination of those measures that best meet its needs.[179] It could be argued that Australia, with a heroin problem of epidemic proportions, should be measured against similarly situated, relatively wealthy jurisdictions (such as Switzerland, the Netherlands and Germany) which have endeavoured to tackle the problem by means of introducing novel harm minimisation measures, including injecting facilities. The provision of clean injecting equipment in an hygienic environment and the use of trained health personnel to prevent the adverse effects of overdose are clear examples of the kinds of measures that would fulfil this obligation by reducing the spread of preventable diseases and the high incidence of drug overdose. This initiative has the capacity to direct users to treatment and education programs. Ultimately, if a relatively wealthy, developed state like Australia does not implement all feasible measures which could conceivably reduce harm, it is in violation of these obligations under the ICESCR.
A similar argument may be made with respect to article 6 of the ICCPR: ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall arbitrarily be deprived of his life.’ International human rights treaties protect the right to life, liberty and security of the person. This peremptory norm of international law — jus cogens — should be given a liberal rather than a restrictive interpretation, because of the fundamental nature of the subject matter. According to the United Nations Human Rights Committee, states must adopt positive, proactive measures to protect human life, including those that can help reduce the spread of epidemics.[180] The ways in which this right can be protected and promoted in this context, in which potentially fatal diseases and overdoses can be prevented, are clear: instituting any and all affordable harm reduction measures.
Sophia Gruskin comments that ‘all the international human rights mechanisms responsible for monitoring government action have expressed their commitment to exploring the implications of HIV/AIDS for governmental obligations’.[181] However, she also notes ‘a tremendous gap between rhetoric and practice.’[182] In the specific context of care for persons infected with HIV, the Canadian HIV/AIDS Legal Network writes that the ICCPR, the ICESCR and the Universal Declaration on Human Rights can be interpreted as requiring parties ‘to ensure access to appropriate medical care unless they can justify otherwise.’[183] By analogy, the same could be said with respect to the provision of supervised injecting facilities in the face of the calamity of street-based injection drug use. The conventions can be read as embracing health care issues related to drug use — the obligation to provide all persons in the community with the highest attainable standard of health is clearly infringed when deliberate policies thwart the establishment of these potentially life-saving, disease-preventing measures. By focusing on the seriousness of the dangers associated with street-based injection drug use — that is, the immediacy and urgency of the problem — it can be argued that the obligation to establish injecting facilities meets even the most core, fundamental description of the right to health: ‘The right to health imposes a duty on a state to intervene or to act, to the extent of its available resources, to reduce or address serious threats to the health of individuals or the population.’[184]
Unfortunately, recourse to international law to change domestic policies can be difficult. The (First) Optional Protocol to the International Covenant on Civil and Political Rights[185] allows individuals to complain directly to the United Nations Human Rights Committee about human rights abuses, although admittedly it can be a rather cumbersome route. Under the ICESCR, no such right of individual petition exists; unfortunately, a rather inadequately regulated and poorly resourced state-reporting mechanism is utilised to enforce the instrument’s requirements.[186] Indicting this enforcement mechanism, Audrey Chapman comments: ‘few states parties take their responsibilities seriously enough to attempt to comply with the standards of the Covenant in a deliberate and carefully structured way.’[187] Further, states have been known to refuse to give effect to their obligations, even when international tribunals or courts have determined that they should act in a certain manner to fulfil those responsibilities.[188] Nevertheless, the reporting mechanisms do, at the very least, have political value and moral force. Gruskin writes, again in the context of HIV/AIDS and human rights:
Governments are responsible for making every effort to put policies and programs into place that can reduce the impact of HIV/AIDS. Recognizing human rights in the design, implementation, and evaluation of health policy can help point the way toward more effective action.[189]
It could be argued that treaties such as the ICESCR, which embrace specific human rights obligations, are contrary to drug-related treaties that primarily relate to criminal laws.[190] In the context of supervised injecting facilities, it might be asserted that these drug-related conventions should have greater force than human rights treaties — which are of a more general nature. However, no such hierarchy of international instruments exists. In fact, it seems reasonable to suggest that, if such a hierarchy were to be recognised, the preservation and protection of human rights would be of paramount importance. Moreover, as will be noted below, even the restrictive drug-related treaties are based on objectives of rehabilitation, treatment and improved health, and concede the need to give effect to these goals. Additionally, in the context of the serious harm suffered by street-based injecting drug-users, addressing their health care needs is certainly as important as criminalising consensual behaviour (such as drug use),[191] and these drug-related treaties accommodate this fact.
Traditional international legal arguments concerning supervised injecting facilities focus on Australia’s drug treaty (rather than human rights) obligations: that is, they consider what the specific drug-related treaties to which Australia is a party require and permit.[192] Specifically, these arguments address the question of whether or not international obligations thwart domestic attempts to amend drug laws, with a view to introducing supervised injecting facilities. As the Victorian Premier’s Drug Advisory Council noted, ‘[a]ny changes to existing legislation and/or penalties will need to take account of obligations entered into by the Australian Government under international treaties’.[193]
There are three relevant drug-related treaties to which Australia is a party, as well as a protocol amending the first of those instruments.[194] The 1961 Single Convention on Narcotic Drugs was ratified by Australia in 1967. It defines certain drugs covered by the instrument (such as heroin and cocaine), details the ways in which trade and use of these drugs should remain illegal, and rationalises and replaces pre-existing drug-related conventions. The 1972 Protocol Amending the Single Convention on Narcotic Drugs places greater emphasis on treatment, education and rehabilitation for ‘abusers’ who commit minor offences, as an alternative or adjunct to prison.[195] The 1971 Convention on Psychotropic Substances adds synthetic hallucinogens, stimulants and sedatives to a list of banned drugs, and provides different guidelines to distinguish medical use of drugs from other purposes.[196] The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was ratified by Australia in 1992. It sets out obligations with respect to detecting and prosecuting drug trafficking, as well as standards relevant to the purchase and possession of illegal drugs.[197]
In relation to drug policy generally, and not just those policies concerning supervised injecting facilities, the Report of the Premier’s Drug Advisory Council states:
The impact of these conventions on legislation and policy are [sic] the subject of continuing debate in Australia and internationally. While there is clear international desire that all the specified substances remain controlled and that their use be diminished or contained, regimes for managing their use and the treatment of users vary widely.
In Australia and several other countries, there is concern about the impact of the treaties on policy flexibility ... [T]he obligations arising from the treaties are capable of varying interpretations.[198]
It should first be noted that none of the conventions specifically refers to supervised injecting facilities (similarly, they do not refer to other types of harm reduction measures, such as methadone programs, syringe exchanges or heroin maintenance or prescription heroin trials). Therefore, the basic characteristics of supervised injecting facilities, their objectives and how they operate must be borne in mind when determining whether they are covered by the international instruments — as either prohibited or in fact permitted within the terms of those documents.[199] In the context of facilities, the only relevant and plausible potential infringements of these conventions involve the consumption or use of drugs or possession of drugs for personal use; articles concerning cultivation, manufacture, sale and trafficking are irrelevant.[200]
Despite the treaties’ generally prohibitive tenor, several articles can in fact be interpreted as having harm reduction objectives, requiring states to implement particular policies that are not concerned with criminal penalty.[201] Importantly, article 38(1) of the Single Convention, entitled ‘Measures against the Abuse of Drugs’, states:
The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall co-ordinate their efforts to these ends.[202]
Interestingly — and perhaps fortunately — the conventions do not spell out how this treatment and rehabilitation is to be accomplished and do not indicate what measures ought to be taken to effectively meet these objectives. States have discretion as to how they give effect to these obligations, which are cast in flexible and vague terms.[203] For example, the provisions do not precisely define ‘practicable measures’ that states may take as alternatives to or in addition to the prosecution and punishment of addicts who commit criminal offences.[204]
It could be argued that supervised injecting facilities are in fact anti-rehabilitative in nature, because they will maintain users’ dependence. However, there is no evidence that this is so. Indeed, there is no evidence to sustain the argument that the presence of facilities results in an increase in drug use. As was noted earlier, overseas experience suggests that drugs that would otherwise be used on the streets, unsafely, are used hygienically and with a lessened fear of overdose and contraction of disease in supervised injecting facilities. Significantly, the facilities provide an opportunity for health workers to reach out to an otherwise inaccessible population of users, with a view to directing them to treatment. In any event, as Cottier and Sychold of the Swiss Institute of Comparative Law emphasise, the question of whether or not the presence of facilities fosters rehabilitation is not in itself a legal one: it is factual and best determined by the experts in the field — social workers, doctors and scientists.[205]
Further, the vagueness of the conventions’ articles requires parties to look to state practice to help determine how to interpret the provisions.[206] However, in global terms, state practice is undeniably inconsistent. On the one hand, Switzerland, Germany and the Netherlands have established supervised injecting facilities (along with, most recently, Luxembourg, Spain and New South Wales, Australia), whereas states such as the United States have not done so. It might be argued that this simply lends support to the contention that the response to the problem of street-based injection drug use should be left to the discretion of states, which can, on their own terms, assess the best way of serving their communities.
The conventions themselves concede a degree of latitude to a state’s ‘prevailing conditions’, ‘constitutional limitations’ and ‘legal system and domestic law’.[207] In fact, these important provisions arguably allow for the continuation of trials, should they prove successful, as permanent strategies — with eventual treatment and rehabilitation opportunities the optimal outcome.
Aside from the positive obligations to assist drug-users with treatment, the conventions also require states to criminalise many aspects of drug use. However, concessions exist which would arguably embrace trials of facilities. The Single Convention states: ‘The parties shall take such legislative and administrative measures as may be necessary ... subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the ... use and possession of drugs’.[208] There are no additional provisions that more fully define ‘medical and scientific purposes’. Indeed, this definition has not been interpreted conclusively.[209] It can reasonably be argued that the Australian initiatives come within the scope of the term: they are trials, intended to be gateways to rehabilitation; they incorporate record-keeping measures and are to be evaluated — independently — after a finite period of time. These elements indicate that injecting facilities do not infringe Australia’s international treaty obligations. Even if they become permanent fixtures in accordance with Australia’s ‘prevailing conditions’, they would continue to be subject to evaluation: in that sense, they would remain an ‘experiment’.
The Single Convention does not elsewhere specifically refer to — or prohibit — use or consumption of drugs. However, article 33 provides that ‘the Parties shall not permit the possession of drugs except under legal authority’. It can be argued that, as long as laws relevant to possession are enacted, there is leeway with respect to what those laws can provide. ‘Legal authority’ could, in fact, allow for possession in certain circumstances — as long as doing so is still in compliance with the other objects and purposes of the convention. As the Swiss Institute of Comparative Law notes: ‘We are thus left with the question of whether legalisation of the simple possession of drugs for the purpose of personal consumption in an environment of socio-medical care would contradict the object and purpose of the Convention.’[210] The provision of heroin is said to be part of a ‘controlled availability trial’ to reduce harm where it serves a medical or scientific purpose.[211] A similar characterisation may be made with respect to supervised injecting facilities, with their potential role as a gateway to education and rehabilitation — thereby repudiating allegations of treaty violations.
The objects and purposes of the Single Convention may be discerned from its Preamble, which notes, among other matters, the parties’ concern with the health and welfare of mankind, their conviction that addiction to narcotic drugs constitutes a serious evil for the individual, and the duty of states to prevent and combat this evil. The treaty’s travaux préparatoires also may be used to interpret its objects and purposes.[212] The provision of facilities can be seen to fulfil health and welfare objectives, reducing dependence on drugs — after suitable treatment.
The essential aim of articles 33 and 36 involves a battle against illicit drug trafficking. Article 36(1)(a) of the Single Convention states:
Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, ... possession, ... offering for sale, distribution, ... transport, importation ... contrary to the provisions of this Convention ... shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment ...
However, Cottier and Sychold comment:
[N]one of the operative provisions ... place restrictions on how individual States choose to combat the evil of addiction, within a medicalised environment, at the national level. The Convention’s general prohibition of possession of drugs should accordingly be understood as referring to possession for one of the purposes specifically outlawed by the Convention, such as exportation, distribution or sale. Possession for the purpose of personal consumption only is excluded.[213]
It might be argued, however, that because of the statements regarding the evils of drug use, and because personal possession is connected to traffic in illegal drugs, possession in itself is sufficiently serious that it must be eliminated at all costs. The persuasiveness of this contention is questionable in the context of trials of supervised injecting facilities, in which drug use and possession may only take place in an ‘environment of socio-medical care and only by persons who are already addicted and would therefore consume drugs in any environment’.[214]
Under the 1971 Convention, Schedule I drugs (for example, LSD and mescaline) are treated differently from Schedules II, III and IV drugs (for example, amphetamines) in the context of personal use. Article 7, paragraph (a) obliges states ‘to prohibit all use [of Schedule I drugs] except for scientific and very limited medical purposes by duly authorized persons, in medical or scientific establishments which are directly under the control of their Governments or specifically approved by them’. Once again, there must be a factual determination as to whether or not the facilities meet this narrowly prescribed provision. Could they be characterised as intended for ‘very limited medical purposes’? Although it is not beyond doubt, it is reasonable to argue that this is so. The standards relevant to Schedule II, III and IV drugs are less onerous than those applied to Schedule I drugs: parties have the discretion to take such measures as they consider appropriate to restrict possession and use of Schedule II, III and IV drugs for scientific and medical purposes.[215]
The 1988 Convention establishes a comprehensive regime to criminalise, prosecute and punish behaviour associated with trafficking in drugs, with an obligation that penalties be severe and that officials’ discretionary powers lean towards prosecution.[216] Possession for personal consumption is treated as distinct from more serious offences, such as manufacture, sale and trafficking. States’ obligations with respect to the different types of serious behaviour are far stricter than those relating to the less serious conduct of possession for consumption: the latter obligations give parties a much greater degree of discretion in determining how they may respond.
However, article 7 arguably does pose a hurdle (which can be overcome) to those advocating the introduction of facilities: while possession of controlled drugs for personal consumption should be criminalised, the 1988 Convention — like the Single Convention — does not require use as such to be made a punishable offence. Further, it stipulates that states may individually decide how this should be addressed. Most importantly, perhaps, article 3(2) includes a safeguard clause, which states that ‘[s]ubject to its constitutional principles and the basic concepts of its legal system’ a state shall adopt such measures ‘as may be necessary’ to establish a criminal offence under its domestic law.[217] Therefore, uniform measures and responses are not required with respect to punishing, prosecuting and criminalising the possession of narcotics (or psychotropic substances) for personal use, as states have the discretion to determine the policies that they wish to adopt (although they must address this issue).[218]
It could be argued that the trial of facilities can be accommodated within this proviso’s terms, by noting that Australia’s legal system incorporates the principle de minimis non curat lex, a longstanding common law concept. In this context, the simple possession of drugs in a facility for personal use is of minimal significance when compared with the kinds of conduct that are of fundamental concern — such as trafficking. The mischief that is addressed in the treaty must be borne in mind when the treaty is interpreted and applied. This is especially so when a state like Australia is facing a serious public health crisis, addressed in part by some responsible law-makers who intend ultimately to divert the visitors of injecting facilities from drug use to rehabilitation. Furthermore, in technical terms, the actual possession of drugs in injecting facilities is for a very short period of time — until the drugs are used — and personal use itself does not have to be made a punishable offence. Once outside the facility, possession becomes a criminal offence, which can still be enforced by local law enforcement agencies.
Finally, it is again worth highlighting the fact that the 1961 Convention and the 1988 Convention essentially are directed at ‘trafficking’, as neither of them requires that possession for personal consumption per se be prosecuted: ‘The conventions do not take an exclusively prohibitionist approach to illegal drugs, but contain provisions allowing signatories to adopt harm-reduction measures.’[219] That is, possession for the purposes of consumption in injecting facilities (where, for example, trafficking, sale and distribution of drugs are prohibited) may be tolerated.
The Australian initiatives, like those already in place in several states, fall within the relevant international instruments’ margins of appreciation — as scientific or medical tests, or as means by which social reintegration, rehabilitation or treatment might (eventually) take place.[220] Cottier and Sychold state:
The ... conventions do not provide any guidance on the essential question of whether or not public injection rooms are in fact conducive to the rehabilitation and social reintegration of drug addicts in the short term and to the reduction of human suffering and the elimination of financial incentives for illicit traffic in the long term. The actual practice of States ... could provide some guidance, if it is substantially uniform. If not, it must be concluded that States ... retain the freedom to make their own policy choices ... States ... are not obliged ... to prosecute and punish the possession and consumption of drugs (other than those psychotropic substances which are listed in Schedule I to the 1971 Convention) by addicts in [facilities]. This conclusion is subject only to the caveat that activities which counteract the object and purpose of the conventions must not be tolerated, but that is simply to restate the question of the underlying socio-medical utility of public injection rooms.[221]
At the NSW Joint Select Committee, Dr Manderson noted the fact that the conventions could be interpreted with a view to providing leeway for the introduction of supervised injecting facilities:
[T]here is certainly pressure from some sources, particularly the United States, for them to be interpreted in a certain way, but interpretation is a question of State parties and the practices of State parties. ... [T]he kind of limited harm reduction measures that we are talking about ... fall within the acceptable boundaries of State discretion within the terms of those conventions. ... [T]hat has been even more the case over the last ten years, where the movement towards some of these ... principles has been taking place in a number of countries ... including Australia. I think there is a pretty good State practice as to a broad interpretation of what those requirements are, although there may be some countries in the world that think they have ownership of the meaning of those conventions, they do not.[222]
Compliance with the conventions is assessed by the International Narcotics Control Board (‘INCB’). The INCB is ‘the independent and quasi-judicial control organ for the implementation of the United Nations drug control conventions ... [and] is independent of Governments as well as the United Nations’.[223] Among other responsibilities, the INCB is meant to assist states in their attempts to adhere to the conventions’ requirements.[224] It does not have power to interpret or adjudicate the conventions in any binding way, as that is a matter of state practice. Rather, it may only make recommendations: ‘So when they make their statements it is their opinion and unenforceable at international and national law.’[225]
The INCB comments on ways in which states have complied with their obligations and whether the treaties have been applied as effectively as possible, and ‘identifies where weaknesses in the national and international control systems exist and contributes to correcting the situation’.[226] The INCB ‘tries to identify and predict dangerous trends and suggests necessary measures to be taken.’[227] It can recommend changes to drug control regimes and maintains ongoing discussions with governments in attempts to further the conventions’ objectives.[228] In fact, if the INCB determines that the treaties’ aims are seriously undermined within a particular state, it has the right to propose that consultations be opened with the government concerned, calling for explanations from that government in relation to the situation. The INCB can also call upon the government concerned to adopt remedial measures; if, in the INCB’s view, the situation continues to be serious, without likely resolution or remedy, the matter can ultimately be brought to the attention of the United Nations General Assembly (after the Economic and Social Council and Commission on Narcotic Drugs have had an opportunity to resolve the problem).[229]
Chris Ward notes that the INCB is well known for its views opposing the establishment of supervised injecting facilities.[230] The INCB’s Annual Report in 1999 states that any government that sets up supervised injecting rooms ‘to facilitate the abuse of drugs ... also facilitates illicit drug trafficking’.[231] The report notes states’ obligations to combat trafficking and criminalise possession and purchase for personal consumption — albeit subject to the basic concepts of their legal systems and constitutional principles.[232]
While maintaining that the establishment of facilities is in breach of these treaty requirements, the INCB acknowledges the seriousness of the problems associated with drug use — such as the spread of blood-borne diseases — and ‘encourages Governments to provide a wide range of facilities for the treatment of drug abuse’.[233] However, it nevertheless ‘urges the Government of Australia not to permit the establishment and operation of drug injection rooms, or so-called “shooting galleries”.’[234] The Annual Report in 2000 notes that ‘[t]he international drug control treaties were established many decades ago precisely to eliminate places, such as opium dens, where drugs could be abused with impunity.’[235]
Comparing supervised injecting facilities with dangerous, illegal opium dens and shooting galleries undermines any serious attempts by the INCB to convince states to desist from introducing well thought out, publicly debated reform measures, which have been or are advocated by bodies as diverse as scientists and law enforcement officials.[236] Those states introducing supervised injecting facilities (or considering doing so) are all too aware of the true nature of the continuing public health risk that they face if facilities are not trialled, and will not be convinced to do otherwise by the use of hyperbole and inappropriate, misguided analogies.
Australian proposals to trial supervised injecting facilities have been controversial, resulting in highly charged political debate.[237] One specific point of contention between the Prime Minister and the three State and Territory leaders who supported their introduction concerns their legality at international law.[238] Not surprisingly, the INCB’s opinion was seized upon by the Commonwealth government in its criticism of the initiatives of the States and the ACT. The treaties and the INCB’s views also have been the subject of debate in State and Territory parliaments. In the Second Reading Speech to the Drug Summit Legislative Response Bill 1999 (NSW), the NSW Special Minister of State argued that the Single Convention permitted the possession and use of illicit drugs for medical and scientific purposes, including controlled clinical trials.[239] He further noted that the treaty provides leeway in which signatories may depart from blanket prohibitions where it is appropriate to do so, in the interests of protecting public health and welfare and having regard to the prevailing conditions in the relevant country.[240] The Minister emphasised that the NSW Bill fitted precisely within this framework, as it proposed a limited, scientifically evaluated trial, in which medical supervision is present, and — as its ultimate aim was to assist individuals in overcoming their addictions — that the model adopted is a ‘gateway to treatment’.[241] The NSW government said that in its view the treaties permit ‘scope for reform and for harm minimisation measures’.[242] The Bill’s proponents stated that ‘[t]here is no doubt that the establishment of medically supervised injecting rooms should be accompanied by rigorous, systematic monitoring and evaluation’ and that ‘such an approach is embedded in the Drug Summit communique’[243] which was issued by the NSW government in 1999. Noting the ‘prevailing conditions’ discretion available to states to give effect to the conventions, the NSW government maintained that facilities are permissible where evaluation and monitoring demonstrate that they are beneficial to public health and welfare; it drew an analogy with needle exchange programs, which were also said to comply with international law commitments.[244]
By way of contrast, opposition members in the NSW Parliament cited Athol Moffitt’s criticism of the proposed trial. Moffitt, a former President of the NSW Court of Appeal, had argued that the Bill’s provisions clearly breached international obligations.[245] The INCB’s comments were also used to refute the validity of the trial at international law.[246] One government member stated that the treaty issues are ‘arguable from either point of view, but I would think that it is clear enough that these conventions are not inflexible; they contain a range of possibilities in relation to public health and harm minimisation measures.’[247]
The failed Victorian scheme also appears to have been drafted with a view to recognising Australia’s treaty obligations and ensuring compliance with these international responsibilities.[248] For example, it detailed the ways in which the trial would be independently evaluated, including publication of records of the number of visits to the facility, the regularity of the visits, the incidence of overdose and the prevalence of blood-borne diseases.[249] In accordance with international requirements, the facilities’ staff were to provide information and counselling about the risks of injecting, and provide links to other service and treatment providers; the Minister of Health was to conduct the trial in conjunction with the Department of Human Services, with the Department appointing a senior clinician to supervise it medically.[250]
Following an invitation by Prime Minister John Howard, the INCB sent a mission to Australia in April 2000.[251] In its Annual Report in 2000, the INCB stated that those Australian jurisdictions wishing to initiate facilities ‘unfortunately challenge the policy of the federal Government and choose to support policies that run counter to the treaty obligations.’[252] Bill Stronach, Chief Executive of the Australian Drug Offensive, notes that when the INCB criticises facilities because they will not help reduce ‘drug abuse and trafficking’ it ignores the facilities’ objectives: to help save the lives of those who inject in public places and to provide them with access to treatment and support services, as well as to provide the community with a safer environment and a reduction in the risks associated with used needles.[253]
Significantly, the INCB’s mission
opted out of the Australian drugs debate by not ruling on whether proposed supervised injecting room trials would breach international drug control treaties ... [and] expressed concern about a trial of injecting rooms ... but made no judgment on Australia’s international obligations.[254]
It is again worth noting that the INCB does not in fact have the power to make rulings. Despite the Prime Minister’s reliance on these treaty obligations as a basis for objecting to the introduction of trials, the NSW and ACT Health Ministers stated that the United Nations body had in fact stopped short of accusing Australia of breaching international law and that this paved the way for
the trials to be continued without fear of accusations of treaty violations.[255] In their meeting with the INCB,
[i]t is believed that NSW, Victoria and the ACT all argued that the medically supervised injecting room projects fell within the sections of the conventions that allow strictly controlled ‘medical or clinical trials’ of new drug treatments or reforms.[256]
However, in its most recent report, issued in February 2001, the INCB again criticised these Australian initiatives.[257] In doing so, it chastised harm reduction as a ‘goal in itself ... adopted at the expense of a strong commitment to reduce both the supply of and demand for illicit drugs’.[258]
Finally, it is perhaps worth noting that in theory (if not in reality), a state could take the rather drastic measure of denouncing its treaty obligations: for example, it might want to do so if it believed that the treaties constrained it to such a degree that it could not pursue harm reduction policies seen to be in the best interests of its population — perhaps as a result of a negative appraisal by the INCB. That is, if these provisions are deemed to be inordinately restrictive on the state’s policy-makers, and are therefore deemed undesirable, the state could refute these obligations — as permitted by the conventions themselves as well as by the Vienna Convention on the Law of Treaties.[259] Of course, the political ramifications of such a move — for example, the response of the United States, in trade terms — could be devastating, and should not be understated.
Moffitt, Malouf and Thompson argue:
A fairly common device [used by anti-prohibitionists] is to blame the United States for imposing the conventions on the world and then to assert that the United States cannot dictate what is best for Australia. This does not negate the obligation. Australia, as a mature and independent-minded nation, signed the Conventions involving international co-operation and — after delays, consideration and consulting the states — ratified them.[260]
This seems to be a rather naive non-assessment of the Realpolitik at play in ratifying these treaties. It does not engage with inequality of bargaining power issues and the degrees to which state sovereignty is often present merely in form rather than in substance (the substantive equality among states being rather illusory). Further, the authors quoted downplay the overwhelming significance of health issues (in the present context highlighted by the urgent need to trial supervised injecting facilities, which are arguably permitted by the scientific and medical experimentation articles).[261]
It is rather implausible to think that Australia would refute its longstanding drug-related treaty obligations. Realistically, denunciation seems unlikely for several reasons, including the serious trade-related consequences that could ensue, as well as the fact that the present Australian federal government is at odds with the State and Territory governments that support the introduction of facilities. In any event, it should again be emphasised that these drug-related treaties themselves permit the establishment of facilities.
Injecting facilities can be established. This is demonstrated by their successful implementation as pragmatic, practical responses and effective harm reduction strategies[262] in several Swiss, German and Dutch cities.[263] As Kate Dolan and her co-authors note, they have been instituted in places where high-level public drug scenes existed with typically associated harmful consequences, such as deteriorating health conditions and increasing public nuisances.[264] This is of particular significance to Australia, where similar drug use problems exist, with few concrete responses in place. Australia is in a position to learn from the positive European experience.
Government-authorised injecting facilities have been operating in Switzerland on a relatively widespread basis since the mid 1980s, with funding provided by the government and non-governmental organisations.[265] The advent of the HIV/AIDS crisis as a result of unsafe injection drug use was instrumental to creating the momentum and motivation necessary for the establishment of a number of facilities in Berne, Basel and Zurich.[266] The process leading to the introduction of government-sanctioned centres was evolutionary, taking place over many years, from a period when there was a degree of tolerance of the so-called ‘open drug scene’[267] to one in which the government responded to pressures to close down that scene. This approach failed, and government-sanctioned facilities were subsequently established from 1986.[268] The objectives are not dissimilar to those advocated in other developed states, such as Australia and Canada: combating increased fatal overdoses, near-fatal overdoses, the spread of blood-borne diseases, and public nuisance.[269]
Germany has 13 supervised injecting facilities, with additional facilities in the offing.[270] Ward notes that they are funded at least partially by local authorities and are operated by non-government organisations with regard given to police and community interests.[271] As was the case in Switzerland, there has been a change in approach to the drug problem in Germany, with ‘growing emphasis on the social and health aspects of drug dependency ... [and] adoption of the principle of treatment and rehabilitation instead of punishment’.[272] The facilities now receive official government approval.[273]
Operating under semi-legal status since 1994, the city-funded rooms were finally legitimized by the German parliament in February [2000]. That move has appalled German conservatives and prompted an outcry from the United Nations, which contends that policy behind the rooms clashes with international treaties on combating the drug trade.[274]
The process leading to their establishment involved an acknowledgment of the failure of prohibitionist policies, an escalation in health risks, and an increase in public nuisance; they were eventually established after consultation with police, residents, local government and businesses.[275] In Frankfurt, the community called for the introduction of facilities, following a process of education and discussion.[276]
Similar to Switzerland, the establishment of these facilities has been a pragmatic attempt to minimize the impact of large open drug scenes in which public injecting, homelessness and a high prevalence of blood-borne viral infections were evident. They also represent to many a logical extension of acceptance-orientated drug services and humane drug policy.[277]
Although Dutch facilities have existed for many years, they have only recently received government support, reflecting a change in approach to drug policy.[278] Presently, there are 16 official centres in nine Dutch cities.[279] Dolan and her co-authors note that they are founded on principles of tolerance rather than abstinence and were developed to meet the needs of youth with ‘psychosocial problems’.[280] Like those facilities in other jurisdictions, the nature of the services offered has evolved over time.[281] And, as is the case elsewhere, the motivation for establishing centres was the need to reduce public nuisance and the health dangers typically associated with street-based injecting.[282]
Generally, a Swiss facility includes a café, counselling room, medical care clinic and injecting rooms, which are described as having a ‘sterile ambience’.[283] The injecting rooms are small and contain stainless steel tables where clients prepare and inject their own drugs using materials provided by the facility (such as needles, candles, sterile water, spoons, towels, cotton pads, bandages and bins).[284] Anne Marxer, manager of the Low Threshold Agency, Berne, emphasises what is not provided or permitted:
[N]ot the drugs of course, they have to bring their own drugs. We don’t distribute drugs here. Also we have very strict rules in here; they can stay for half an hour and they are not allowed to sell or to buy dope in here, not even to make a present to someone. So if they do this, we sanction them, they’re not allowed to enter this room for another two days.[285]
Staff cannot help drug-users with their injections.[286] A staff member must be present in the injecting room at all times; doctors work a few hours each week, and the facilities are open seven hours a day, five to six days per week.[287] All staff are trained to resuscitate clients, and referrals are provided to drug treatment centres and counselling.[288] Marxer states:
For us, we accept the people how they are. We don’t tell them to become clean, but when they want to become clean we help them to the next station. But first of all we accept them the way they are, and also they have to be ... older than 16 years old. And the first injection is not allowed here. This is important ... it’s really forbidden.[289]
The German legislation prescribes that the facilities meet similar standards: the provision of counselling; the provision of mechanisms to evaluate their effectiveness; a client identification system; and the implementation of measures to prevent criminal offences.[290] Several of these requirements seem intended to guarantee Germany’s compliance with its international obligations by rendering the initiatives medical or scientific trials.
Dolan and her co-authors highlight some of the most significant features of the German facilities. The clients are over 18 years of age, are not first-time users, are not in substitution therapy, do not deal drugs while at the facilities, do not share drugs, do not inject others, and may attend for a maximum of 30 minutes.[291] Registrations are not required, although identification is checked.[292] The staff comprises social workers, nurses, medical officers and (in some instances) former injecting drug-users.[293] At least one staff member supervises the facilities at all times, and no member of staff can assist with injecting.[294] The facilities have been described as hygienic, stress-free, humane environments, with private areas reserved for certain practices.[295] ‘Service delivery is based on harm reduction, acceptance and anonymity.’[296]
A Dutch facility in Rotterdam ‘provides a supervised injecting place as well as a cafeteria, an activity centre and classes in handicrafts, painting and drawing, and Bible studies.’[297] A survey of this facility’s clients revealed that 60 per cent use it for reasons other than the fact that it is a safe place to inject.[298] In terms of its clients’ demographics, 40 per cent are homeless (many of whom sleep at the facility), 80 per cent are male and 84 per cent are at least 30 years of age.[299]
One way of measuring the success of the Swiss trials is by reference to statistics relevant to harm reduction. For example, approximately 100 clients visit each centre each day in Zurich and Basel.[300] In three centres in Zurich, there were approximately 68 000 injections in one year; 3000 abscesses were treated, 22 individuals were resuscitated, and 10 telephone calls to ambulance services were made.[301] There were approximately 90 000 injections by 300 individuals in one year at one Berne facility; two thirds of Berne’s habitual street-based injecting drug-users attended it regularly.[302]
Dolan notes that ‘[t]here have been no deaths in any injecting rooms in Switzerland to date [and] some workers believe that the number of deaths due to overdose in the community has decreased as a result’.[303]
The facilities are described as ‘a normalised feature of the Berne cityscape’.[304] An investigating committee relates its experiences in locating a Swiss facility:
Arriving at Berne railway station we enquired of the Tourist Information Centre about the location of the safe injecting facility. In a very matter of fact manner the assistant pointed us in the right direction. On locating the street we then asked a passing elderly nun which was the building. Without batting an eyelid she directed us to a nearby door. The premises were a cross between a no frills coffee bar and a medical clinic.[305]
Swiss injecting facilities have had a positive impact beyond immediately improving the health of drug-users: they have decreased public nuisance by reducing the number of syringes on the streets.[306] The INCB acknowledges Switzerland’s success in developing a properly funded, comprehensive drug control strategy, incorporating prevention, treatment, harm reduction and law enforcement. The INCB nevertheless states that in its view harm reduction should not be over-emphasised, and notes that any success that Switzerland may have had with respect to decreasing the incidence of HIV/AIDS, hepatitis infections and overdose fatalities is the product of a complex set of measures.[307] This is no doubt true. But one of the measures that is innovative, significant and responsible in part for the Swiss success is the establishment of supervised injecting facilities. Notwithstanding this fact, the INCB maintains its opposition to these measures, suggesting that Switzerland should redirect its energies and funds away from them, and warns other states against following the Swiss lead.[308]
There are four injection rooms in Frankfurt, in which, according to Maurice Frank, approximately 600 clients inject their own heroin or cocaine — about 1000 times a day.[309] Frank notes that, as a result of the establishment of facilities in Frankfurt, the number of individuals injecting on the streets has been reduced to nearly zero whereas, 10 years ago, 1000 addicts would ‘hang out in a park’, ‘littering the area with needles and trash, dealing heroin, selling their bodies for money’.[310] Moreover, these facilities are ‘an effective way to contact some of the most marginalized drug-users and reduce the harm of their drug use on individual and community health and public order’.[311] Germany’s general drug policy, including the establishment of facilities, ‘saves human lives: in Frankfurt, deaths from drug use have declined to 26 in 1999, from 147 in 1992’.[312] Rates of HIV infection among injecting drug-users also appear to have declined, with this reduction in transmission partly attributable to the presence of supervised injecting facilities.[313]
Although the impact of supervised injecting facilities in the Netherlands has not been subject to thorough research, an evaluation of the facility in Arnhem showed that there had been a reduction in the use of drugs on the streets and a consequent decrease in hazardous behaviour among users.[314]
Despite the apparent success of the schemes (in conjunction with other effective harm reduction programs), the INCB has criticised the European facilities, asserting that they increase traffic in drugs and violate treaty obligations to prevent drug abuse; it asserts that there would be widespread negative consequences if other states introduced them.[315] The Board plays down the significant public health benefits arguably resulting from the implementation of injecting facilities.
Supervised injecting facilities appear to be accepted components of the harm minimisation landscape in Switzerland, Germany and the Netherlands, despite some initial opposition to their establishment.[316] Their success continues to generate interest in states with similar, increasingly serious drug use problems. Both Luxembourg and Spain recently initiated drug management projects, with the objective of treating otherwise unreachable heroin users; these measures include trials of supervised injecting facilities, to respond to some of the health care crises that their street-based drug-injecting populations face.[317] Not surprisingly, despite acknowledging that the Spanish project is
intended to be a first step to attract those abusers who have previously not been incorporated into any type of health-care network or into any other drug abuse treatment programmes ... [t]he [INCB] reiterates its concern over such facilities.[318]
British Columbia, Canada, is suffering from a drug use problem similar to that experienced in Australia. In 2000, it was estimated that 400 of that province’s 15 000 injecting drug-users would die from overdoses.[319] Thomas Kerr notes that drug-induced deaths rose from 39 in 1988 to 412 in 1998.[320] In 1994, the British Columbia coroner found that the use of illicit drugs was becoming the leading cause of death among persons between 30 and 49 years old.[321] In the context of HIV and drug use, the Canadian situation is described as a public health crisis, with a steady rise in the rate of HIV infections and cases of AIDS connected to injection drug use.[322] One response to these problems is a proposed trial of supervised injecting facilities.[323] Calls for reform come from several bodies, including the Canadian HIV/AIDS Legal Network,[324] the City of Vancouver,[325] British Columbia’s Harm Reduction Action Society[326] and British Columbia’s coroner.[327] Recently, the Canadian Medical Association Journal argued that:
Harm reduction is not a retreat from the high ground. It is the only ground on which to meet drug users in the here and now — a here and now that may include, in addition to the consuming fire of a chemical addiction, poverty, limited education, unemployment, a history of abuse and family dysfunction. Until now, in Canada, that meeting ground has taken the form of outreach and education, methadone maintenance and needle exchange. ... It will take a certain sang-froid to see this idea [of supervised injecting facilities] through. It will require that we face up to the severity of the drug problem that Canadian communities are experiencing. There is no quick fix, either for addiction or its risk factors and effects. But we can make the lives of people with drug addictions a little better and neighbourhoods a little safer. Supervised injection rooms are a logical next step, one that combines the merits of realism and compassion.[328]
Recently, Canadian Health Minister Allan Rock stated that the federal government ‘will do everything [it] can to facilitate pilots [of supervised injecting facilities] in cities across the country if those cities decide this is part of the strategy that they want’.[329]
Having returned from a tour of European facilities, Victoria’s opposition health spokesperson acknowledged that these facilities had been assessed as successful experiments. However, he stated that well-integrated services, not present in Victoria, were essential to their success.[330] In fact, advocates supporting the trial of supervised injecting facilities have never suggested that such a measure, on its own, would solve drug use problems — they are intended to be one useful initiative among many, as part of an integrated strategy to alleviate harm. Australia, with similar street-based injection drug use problems to other Western states such as Switzerland, Germany and the Netherlands, should not ignore those jurisdictions’ successful initiatives; rather, it should capitalise on their experiences and follow suit, by introducing trials of supervised injecting facilities.
Recent Australian responses to the problem of street-based injection drug use attempt to reduce the community’s exposure to serious health risks. Commenting on HIV/AIDS issues generally, Ward states:
The overarching challenge Australia faces in promoting an enabling legal environment is the waning impetus for reform. There is evidence of a growing belief in Australia that we have ‘dealt with’ HIV, that we no longer face the crisis we faced in the early years of the epidemic. There is also evidence of less willingness to adopt innovative and courageous legal and social policy responses.[331]
While this is no doubt true with respect to HIV/AIDS issues generally, it is perhaps less apt in relation to some State and Territory government initiatives that address injection drug use problems and their impact on health. Three Australian State and Territory governments — New South Wales, Victoria and the Australian Capital Territory — have initiated efforts to establish trials of medically supervised injecting facilities. Their proposals have been the subject of much debate and controversy, have met a great deal of resistance, and have enjoyed varying degrees of success.
Once the political will exists for introducing the trial of facilities, perhaps motivated by perceived moral and international legal obligations, issues concerning the type of regime to establish are readily solvable. Models suggested as bases for the implementation of facilities range from those that are purely administrative, to those built upon a regulatory regime, to those that are statutory. Arguments with respect to the legal footing upon which supervised injecting facilities should be based draw upon the experience of needle exchanges.[332]
Most commentators agree that the most effective way of ensuring the success of supervised injecting facilities is to use legislation to amend the criminal law, rather than to rely on regulations or administrative action,[333] so that users can access facilities without fear of prosecution. Even though a legislative regime is somewhat inflexible in responding to altered circumstances and the need for rapid change, its certainty and consistency (as opposed to those of administrative directives or practices) are advantageous.[334] By comparison, dependence upon prosecutorial and judicial discretion to tolerate otherwise ‘illegal’ activities is inadequate and too insecure a foundation on which to build this type of reform:
[R]elying on ... discretion is not a satisfactory way of resolving legal issues relating to drugs, since political winds and police attitudes can shift quickly and dramatically. Such an environment of uncertainty does not lead to effective, sustainable policies to help HIV-positive injection drug users.[335]
The three Australian proposals have followed the legislative rather than the regulatory and discretionary route,[336] providing users and staff members working at the facilities clear exemption from criminal prosecution, as well as other forms of protection.[337]
In New South Wales, as part of its inquiry into the NSW Police Service in 1997, the Wood Royal Commission recommended that supervised injecting facilities be trialled. Noting that the NSW government funded needle and syringe exchange schemes to reduce the spread of blood-borne diseases, Commissioner Wood asserted that it was short-sighted not to go further and provide sanitary facilities in which drugs could be injected.[338] Acting on Wood’s recommendation, the Parliament of New South Wales set up a Joint Committee in 1997, which, in an extensive report, recommended that supervised injecting facilities not be trialled. However, it also set out mandatory requirements to be adhered to if such centres were established.[339] In the interim, an unsanctioned but supervised room operated for a few weeks in the Wayside Chapel (a Uniting Church facility in Kings Cross); the police subsequently closed it down in May 1999.[340]
That year, the New South Wales government-sponsored ‘Drug Summit 1999’ was convened to take a multifaceted approach in response to that State’s increasingly severe drug use problems. The summit recommended that:
The Government should not veto proposals from non-government organisations for a tightly controlled trial of medically supervised injecting rooms in defined areas where there is a high prevalence of street dealing in illicit drugs, where those proposals incorporate options for primary health care, counselling and referral for treatment, providing there is support for this at the community and local government level.[341]
As a result of the summit, which made over 170 recommendations, the government announced its support for an 18-month trial of a medically supervised injecting facility, established at one locale, which would ‘provide a gateway to treatment and aim to lessen the impact of drugs on the community’.[342]
Finding a body willing and able to manage the facility proved to be difficult.[343] For example, although the Sisters of Charity were prepared to operate a facility, the Vatican vetoed that possibility.[344] This hurdle was overcome when the Uniting Church received an operating licence. The site chosen for the facility was formerly a pinball parlour, which was completely remodelled.[345]
‘[T]he English-speaking world’s first injecting centre’[346] was established under Schedule 1 of the Drug Summit Legislative Response Act 1999 (NSW), which amended the Drug Misuse and Trafficking Act 1985 (NSW). The amending Act allowed the responsible authorities to issue one licence in respect of one site for an 18-month trial period. A review of the trial is prescribed by the Act, with a report of the outcome of the review to be tabled in Parliament. A licence was to be issued only if the internal management protocols were of a satisfactory standard and only if there was sufficient acceptance at a local government and community level of the facility’s proposed site.[347] When selecting the facility’s location, attention was to be given to public health and safety, visibility from the street, and proximity to schools.[348] The Act requires that regulations detail the centre’s standards, internal management protocols, rules of conduct to be followed by those using the centre, and the functions and qualifications of the centre’s employees.[349]
All staff supervising the injecting activities must be qualified health professionals. At least one member of staff, available at all times, must have satisfactory experience or qualifications in youth support or child protection. Further, the facility must contain or have satisfactory access to the following services: alcohol and drug counselling, detoxification and rehabilitation, health education, methadone provision, testing for sexually transmissible and blood-borne diseases, and needle and syringe exchange.[350]
In 1999, the ACT Legislative Assembly enacted legislation providing for the introduction of a supervised injecting facility and establishing a large consultative committee.[351] When it was introduced, the Minister for Health and Community Care requested that the Bill be debated ‘in light of the knowledge that ... more of our young people have died from overdoses than have died on our roads [in 1998], and in the knowledge that the spread of hepatitis C is increasing, with over 300 notifications this year alone.’[352] As a result of unfortunate political machinations and the rejection of the government’s proposed budget ‘due to concerns by the independents over the funding of a Supervised Injecting Place’, the legislation was enacted, but the facility was not established because supply was blocked.[353] The date for the trial’s commencement was deferred until after the next election.[354] The previous Chief Minister, Kate Carnell, stated that the NSW trial could now be assessed ‘and if the ACT trial does go ahead ... it will have the benefit of this increased level of information’.[355] Recently elected Chief Minister Jon Stanhope of the Australian Labor Party will give effect to ALP policy: to evaluate the NSW trial’s results with a view to deciding whether or not the introduction of a facility is desirable in the ACT.[356]
The Supervised Injecting Place Trial Act 1999 (ACT) has the following object: the temporary operation of a supervised injecting place, for the purpose of an independently evaluated scientific trial of the public health benefits and risks of such places (and other related matters).[357] It envisages the operation of one facility, which the Minister must be satisfied is an hygienic environment suitable for use in providing drug-dependent persons access to clean equipment for the administration of a substance, and enabling safe disposal of equipment.[358] It also gives the facility’s users an opportunity to be referred to counselling, medical treatment and similar services.[359]
The criteria for assessing the trial must be presented to the Legislative Assembly and the facility’s location must be approved by an advisory committee. Law enforcement and internal management protocols also require such approval.[360] The law enforcement protocol must consider the detection, investigation and prosecution of offences by a person who self-administers a substance at a facility and must allow the facility to function in accordance with the Act’s object.[361] The internal management protocol covers matters related to the medical qualifications of staff members who directly supervise injecting, as well as the nature of the primary health care, counselling, health education, rehabilitation and blood-borne disease-testing services that must be provided.[362]
The person in charge of operating the facility may exclude an individual from using the facility for a period of three days by orally telling that person of their exclusion; the excluded person must leave the facility immediately.[363] The Advisory Committee is to be consulted about the site for the facility; hours of operation; conditions of access; terms and conditions on which those under 18 may enter the facility; and the ways in which and the criteria against which the effectiveness of the facility’s operation must be evaluated.[364] In deciding upon the facility’s location, the Advisory Committee must have regard to matters such as the cost of setting up and maintaining a facility at the suggested place, the capacity to maintain the place in an hygienic condition, the capacity of the place to be used for access to counselling, medical treatment, detoxification and other health promotion services, and the means of safe disposal of injecting equipment after use.[365] Every six months, the Committee must report to the Minister on the facility’s operation, including its views concerning the scientific trial. The Committee must also, prior to the Act’s expiration, arrange an assessment of the scientific trial, including a report with an assessment and recommendation as to whether the trial should continue for a stated time, or cease.[366]
Victoria has been the site of a great deal of recent political debate and public scrutiny of injecting facilities, particularly in 1999–2000. The Australian Labor Party government proposed that injecting facilities be implemented in the five Melbourne communities with the greatest prevalence of street-based injection.[367]
In the lead-up to the introduction of the government’s Bill to Parliament, there was widespread community consultation. In fact, most of the issues relevant to the nature of the facilities had been widely canvassed prior to the introduction of the Bill.[368] The Bill that was presented to Parliament — the Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill 2000 (Vic) — was largely based on the recommendations of the Victorian Drug Policy Expert Committee.[369] The scheme was clearly identified as a trial.[370] It was time-limited, with a start-up period of six months followed by an 18-month period of operation. Its purpose was a ‘trial of injecting facilities’ involving ‘the evaluation of those facilities’.[371] It was also acknowledged that injecting facilities were one of several measures in the government’s ‘comprehensive and integrated drug policy.’[372] The Minister for Health noted that Victoria was not alone in suffering from the increasingly serious problem of prevalent overdoses; he cited the enormity of the drug use problem in the United States and Sweden, despite their strictly prohibitionist policies, to refute the suggestion that anything less than the absolute restriction of drug use would necessarily worsen the drug problem.[373]
One of the goals of the scheme was ‘a reduction in the number of infections among drug-users, particularly hepatitis B and C, HIV and bacterial infections including abscesses’; the facilities were to be linked to primary health services and treatment and counselling.[374] There were three levels to the government’s approach: the Bill, the ‘Injecting Facilities Trial Framework for Service Agreements’ — which provided guidance and control of the trial — and local service agreements or operating plans for each specific site. The sites were to be operated by non-government bodies, within the terms of the agreements.
The Victorian multi-site approach, by way of contrast to the NSW model, had the advantage of being able to trial different types of facilities, each one of which could be evaluated in terms of those features that were effective and those that were not — in an attempt to balance consistency with flexibility and the specific needs of each community. Moreover, a multi-site approach can withstand some of the ‘honey pot’ concerns that are more readily directed towards single-site models. Micallef notes the rationale for this approach:
If a pilot program is set up, then in order for this to be successful it is better that this is done in a number of sites rather than being concentrated in one municipality. This would curtail problems with one area being singled out as a perceived magnet for drug users.[375]
In the debate on the facilities’ implementation, one matter was the subject of consensus: the need to have direct, close links with local communities, if the proposals were to have any reasonable prospects of success — both in the establishment of injecting sites and in the ongoing provision of services.[376] This was based on the perception that what might be appropriate in one location would not necessarily be suitable in another: ‘If [supervised injecting facilities] are seriously considered as a harm-minimisation option, they need to be viewed in the light of the limitations they might have in their proposed context of operation.’[377]
Local governments had in fact consulted with their constituencies to gauge support for facilities and to inform them about what might be established. For example, the City of Port Phillip’s Corporate Plan for 1999–2000 included a proposal to ‘facilitate further examination into alternatives to reduce drug related harm such as safe injecting rooms’.[378] To further this objective, it conducted surveys, called for submissions and organised public fora and trader focus groups. ‘Respondents [to surveys] were asked the extent to which they supported or opposed various methods of dealing with the heroin issue’: 88 per cent supported or strongly supported needle exchanges with 8 per cent opposed or strongly opposed; 64 per cent supported or strongly supported supervised injecting facilities with 24 per cent opposed or strongly opposed.[379]
The Bill allowed the Minister to enter into an agreement with any person for the use and development of land as premises for a facility.[380] The agreement had to outline the services to be provided by the facility operator, objectives and performance standards for the facility, and an operational and management plan.[381] Each agreement was to be laid before the houses of Parliament, for the purposes of review and possible disallowance. The local council with jurisdiction over the particular facility had to endorse its operation before it could commence.
Incorporating the recommendations of the Victorian Drug Policy Expert Committee, the ‘Injecting Facilities Trial Framework for Service Agreements’ included the following requirements, some of which were to be set out in the local service agreements. Staff were to include trained professionals who had the ability to respond to overdoses and could provide counselling.[382] Importantly, staff were not permitted to interfere with someone who was in the process of injecting; disruptive behaviour was prohibited, as was trafficking within the facility.[383] Administrators were to keep confidential records for monitoring, accountability and evaluation purposes.[384] Aside from enabling assessment of the trial’s efficacy, these latter requirements helped ensure that the scheme complied with Australia’s drug treaty obligations. The factors requiring consideration when selecting the facilities’ sites are also outlined in the ‘Injecting Facilities Trial Framework for Service Agreements’.[385]
As is the case with other similar initiatives, the facilities’ functions included providing and disposing of injecting equipment; monitoring users who were injecting; responding to overdoses in a clean, secure space; providing advice and information on safer injecting techniques; and providing referrals to counselling and associated services.[386] The ‘Injecting Facilities Trial Framework for Service Agreements’, tabled before Parliament, contained additional detail necessary for the successful implementation of the trial. Local service agreements were to specify a particular facility’s functions, target population, strategies to reach persons from various cultural backgrounds (including Koori people), staffing models, opening hours, training arrangements, record-keeping agreements, local referral arrangements and consultation structures, safety procedures, and disease transmission control methods.[387]
The government’s attempt to enact the scheme was fraught with difficulty, despite the support it received from most experts in the field. The opposition parties opposed the initiative, and the Bill was not enacted.[388]
Under the NSW Act, those possessing and using small quantities of otherwise prohibited drugs at the injecting centre are exempt from criminal liability: this immunity also applies to the possession of equipment for use in the administration of the drug.[389] Further, individuals responsible for the operation and management of the licensed injecting centre are not subject to criminal liability.[390]
In the ACT, staff are to be exempted from criminal liability if they act in good faith, and participate in the establishment of the facility in accordance with the regulations.[391] The Director of Public Prosecutions is to be given directions by the Attorney-General to ensure that drug-dependent persons are not deterred from using the facility out of fear of prosecution.[392] The facility’s staff are not permitted to sell, possess or use a ‘substance’ (defined as including a drug of dependence) at the facility.[393] Drug-dependent persons are not allowed to sell or supply a substance in the facility.[394] They can not possess more than 0.5 grams of a substance and are not immune from criminal liability for possessing a substance outside the facility.[395] The Act specifically states that it is lawful for members of staff to provide sterile equipment to another person for use by that person at the facility, if the equipment is returned for safe disposal.[396] It also provides that this lawfulness is contingent on the other person being offered counselling, rehabilitation or medical services at the facility, unless the staff member knows or reasonably believes that the other person has previously administered a substance to herself or himself.[397]
Under Victoria’s failed proposal, the matters most clearly spelled out in the rather skeletal Bill involved the elimination of criminal offences. For example, similar to the situation in NSW, operators and staff of approved supervised injecting facilities were not guilty of aiding and abetting where they sold or supplied needles or syringes.[398] Further, they were not guilty of aiding, abetting, counselling, procuring, soliciting or inciting the possession or use of a drug of dependence as a result of operating or working in the facility.[399] Relevant conspiracy offences were also eliminated for the purposes of operating and working in the facilities.[400] The Bill provided immunity from criminal liability to persons who possessed or used a drug of dependence where that possession or use was of a small amount of the drug and occurred in an approved facility, and where the person was 18 years of age or over.[401]
Somewhat more problematic are cases involving persons who are in the vicinity of the facility, are in possession of an illegal substance, and intend to enter the facility — to use the illegal substance legally. Should they be immune from arrest? In NSW, the police retain the discretion to charge a person with the offence of possessing a prohibited drug or related equipment when travelling to or from or in the vicinity of the authorised injecting centre.[402] Successfully managing this aspect of the regime will likely prove to be particularly challenging, and will certainly test the limits of police tolerance for this relatively radical harm reduction measure. In fact, with the NSW government’s planned increase in police powers to be used against drug-dealing, the viability of the trial could be seriously jeopardised, requiring ‘a great deal of discretion and careful management’.[403] Some of these issues are not dissimilar to those related to the operation of needle exchanges. For example, as a result of a murky legal position, some needle exchange clients fear that they will be arrested, even though official police policy (in Victoria, for example) states that police should not have a significant presence in or near exchanges.[404] It remains to be seen to what extent the NSW police exercise their power of arrest outside the Kings Cross facility, and what effect this will have on its operation.
Similarly, the appropriate degree of police involvement near facilities was a troubling feature of the Victorian plan. The Victorian Minister assured that there would be a large number of officers near the facilities and that the police would ‘maintain vigorous targeting of drug traffickers’;[405] this included entering premises in agreed circumstances, such as where there was a belief that drug-dealing was taking place. Further, police could use their discretion to decide whether they should criminally charge individuals in possession of small amounts of drugs near the facilities. Dr Nick Crofts, Director of the Centre for Harm Reduction at the McFarlane Burnett Centre for Medical Research, contends that the proposal was badly flawed, as it did not protect users from arrest when walking to and from the facility, which, to be effective, needed to be located proximate to a drug-dealing area.[406] Because street-based drug-users could not rely on immunity from arrest, more control of police discretion was necessary.[407] By way of contrast, Neil Comrie, former Victorian Police Chief Commissioner, highlighted the fact that the police would continue to target traffickers near the facilities and could use their discretion to charge individuals found with heroin in their vicinity.[408] He also noted that the police should be involved in selecting the location of facilities, and that ‘legislation should also clarify the legality of personal drug use and possession in the facilities’.[409]
It might be considered naive to think that facilities could operate successfully if the police were not granted the right to exercise this type of discretion; the ability to do so is critical to securing police confidence and co-operation in trialling facilities. While it is understandable that the government may feel obliged to maintain police involvement in this way, the down-side of too much participation and presence near the facility is clear. Permitting too great a level of scrutiny and interference, and too visible a presence, could undermine the potential success of the scheme: it may make it difficult to engender sufficient trust and comfort among street-based injecting drug-users for the scheme to succeed in unequivocal terms.
Another matter which has been the subject of debate is whether those operating or administering the facilities should be subject to civil liability. The kinds of scenarios which raise issues concerning potential lawsuits against those managing injecting facilities include situations where a client overdoses and is not revived quickly enough, or where a staff member suffers harm as a result of caring for a client, perhaps injuring herself or himself on a needle.[410] There are at least three possible responses to these concerns.
At one end of the spectrum is the suggestion that operators or staff running facilities be granted absolute immunity from suit for any injury that might arise, including those that could be traced back to grossly negligent or reckless conduct. While not going so far as to expressly provide immunity for such inordinately careless conduct, the ACT legislation exempts the Territory, or anyone else (such as staff), from civil proceedings in relation to any death or injury or loss sustained by someone arising from the self-administration of a substance in the facility or anything else done by the affected person in connection with self-administration.[411] A committee had advised that the protection should be granted with respect to acts or omissions undertaken in good faith in the course of running the facility;[412] the Act omits this ‘good faith’ requirement.
A more reasonable way of protecting facility operators is by adopting a middling approach that provides a limited immunity. This is reflected in the NSW legislation, which has attempted to strike a balance between (i) the availability of civil suits in all circumstances (as in Victoria’s scheme) and (ii) a blanket, all-embracing immunity from suit (virtually the case in the ACT’s legislation). Under the NSW scheme, those operating or managing the facility are exempt from civil liability with respect to anything done (or omitted to be done) in connection with the operation of the centre. This protection exists as long as the act or omission that would otherwise form the basis of a liability action was performed (or omitted) in good faith for the purpose of fulfilling responsibilities under the Act and was not done (or omitted) in a reckless or grossly negligent manner.[413] It would appear that this is closer (but not identical) to what the ACT committee had intended.
The NSW Act offers protection to those operating and staffing the centres in most circumstances, but preserves the right to sue in the most serious kinds of cases. The government asserts that this is ‘far from blanket protection’[414] and ‘is necessary and perfectly reasonable’;[415] even though many of the dangers associated with street-based injecting are diminished by supervising the injecting, ‘clearly the hazard remains’.[416] Therefore, those operating the facility, and the state, deserve protection from potential civil claims.[417]
Arguably, if a right to sue were available, one possible defence that could be employed is that the client voluntarily accepted the risk of injury. However, this defence would likely fail, as it could hardly be said that the client consented to the specific risk of injury and fully understood all the facts associated with that risk.[418] Nevertheless, this argument was invoked in rather unattractive terms by the NSW opposition, which advocated immunity against civil liability for injury associated with injection drug use. The opposition asserted that any such injury is solely the responsibility of the user, as a result of her or his own actions or fault: ‘they clearly are responsible, whether they inject in an injecting room, in a gutter or in their own home. The thought that the State would accept liability for that irresponsible choice is beyond comprehension.’[419]
By way of contrast, some members of Parliament were critical of the government for providing any immunity from suit, asserting that to do so was a denial of natural justice and an abdication of responsibility.[420] They contended that, if the State were to go so far as to introduce facilities, it must see to it that those facilities are operated with care, and must not deny potentially aggrieved claimants the opportunity to argue that the operators or staff acted unreasonably in the circumstances.
Under the third option — included in the Victorian scheme — facilities’ operators and staff would be treated in a manner like most others in the community (such as providers of health care), whereby they could be held fully liable for their carelessness.[421] According to this approach, those operating the facilities owe a common law duty of care to clients who enter the premises, and must act as a reasonable person would act in the circumstances. Unlike the ACT and NSW models, the Victorian proposal allowed civil suits to be instituted without offering staff or operators any special immunity, based on the following ethos: ‘it is not clear that the civil liability matters that arise in the case of [supervised injecting facilities] will be any more complex than those arising in the case of hotels, or venues where alcohol is sold and consumed, for instance’.[422]
The Victorian Drug Policy Expert Committee was unconvinced by the reasons given for granting immunities in NSW and the ACT, asserting that civil claims should be responded to in accordance with basic civil law principles: ‘Protection against potential liability is more appropriately dealt with through insurance or, if necessary, indemnity, rather than granting a statutory immunity from suit.’[423] However, Law Institute President Michael Gawler expressed concern that taxpayers would be exposed to the risk of expensive litigation if someone were to die or be seriously injured while at a state-sanctioned injecting facility[424] — a concern reflected in the ACT and NSW initiatives.
In many respects, the Victorian model is preferable, although such a conclusion is ultimately value-laden, and inextricably connected to one’s perception of the value of law suits and the role of civil litigation as a means by which reasonable standards can be generated, fostered and maintained. The ‘fear of floodgates’ may not in fact be a legitimate concern — frivolous claims would not be sustained. Indeed, the institution of proceedings does not equate with findings of liability, as the claim would in any event have to be assessed against standards of reasonableness. Because the standard is not one of perfection, there is scope for errors or ‘misadventures’ that do not give rise to legal culpability. The primary virtue of the Victorian model is that those operating and working at the facilities could be held up to judicial scrutiny, if necessary, to ensure that they undertake their responsibilities satisfactorily. They are treated like most other members of the community. If an immunity is to exist — even a partial one — it should be justified on the basis of irrefutable evidence that it is necessary. This is no less the case in the context of the provision and operation of supervised injecting facilities than it is in any other circumstances where care must be taken.
Under the NSW regime, persons entering the facility’s premises must register, and must be over 18 years of age.[425] This is similar to the Victorian scheme, where younger persons were to be denied entry,[426] and were to seek assistance from alternative services.[427] Youth specialists were particularly critical of this exclusion, arguing that ‘underage addicts should get the same opportunity as adults to use them.’[428] In his Second Reading Speech, the Victorian Minister noted that this restriction was based on the government’s perception of the community’s expectations and views.[429] The exclusion seems to be the product of an attempt to avoid overstepping the limits of what is seen to be realistic and acceptable; the initiatives may have gone as far as it was thought to be politically palatable, possible and wise. Nevertheless, this unfortunate limitation cuts out one of the most important target groups from the facility’s purview, as young people are disproportionately at risk, are particularly vulnerable, and are perhaps most in need of the kinds of services that facilities offer.[430]
Even though its scheme was not enacted, the Victorian Labor government affirmed its commitment to the proposal; it expected a public backlash against the opposition for rejecting the trial.[431] The municipalities of Yarra and Port Phillip, which had declared their intention to implement rooms once enabling legislation was passed,[432] expressed ‘bitter disappointment’[433] at the political decision to block the Bill. One mayor said that the Members had ‘no moral right
whatsoever’ to block the Bill even though they had a legal right to do so.[434] The Victorian Local Governance Association
called on the State Parliamentary Liberal Party to say what they intend to do to save lives currently at risk from heroin overdosing. ... The problem will not simply go away because the conservative Parliamentary parties in Victoria reject supported injecting rooms.[435]
Welfare services and medical associations also expressed concern with the impasse.[436] At least one community group, Footscray Cares, stated that there is a ‘groundswell of support’ in that community for a centre.[437] Professor Penington, Chair of the Victorian Drug Policy Expert Committee, criticised the State opposition for turning the debate into a political one, in a manner that was out of touch with community wishes.[438] He also asserted that fear, ignorance and the tabloid press had stifled rational public debate in Victoria, and that this had the unfortunate consequence of restricting the discussion to the narrow, controversial issue of trialling injecting facilities, with little attention given to other, less politically sensitive strategies.[439]
In Melbourne, The Age stated:
[T]he State Government should be commended for having the courage to follow New South Wales and the Australian Capital Territory in the pursuit of a solution to the escalating heroin scourge.[440]
There is compelling evidence that existing methods of curbing heroin use have failed. ... What is clear is that whatever message is now being sent out is not being heeded. There is evidence from some European cities that providing supervised injecting rooms can significantly reduce the number of overdose deaths as well as the amount of crime associated with drug use. ... The plan just might go some way to reducing the harm of drugs. So far, nothing else has.[441]
Since the State opposition rejected the trial, the Labor government intends to increase the methadone program, extend drug diversion programs, and attempt to persuade the Commonwealth government to implement heroin maintenance or prescription heroin trials.[442] Opposition groups advocate the provision of additional police personnel to combat drug-dealing and use, and the establishment of a greater number of detoxification centres and drug courts.[443]
Rather than simply following what is (perhaps incorrectly) perceived to be popularly desirable on a State-wide basis, policy-makers must begin to act courageously, formulating and implementing a vision for harm minimisation based on well-reasoned, persuasive arguments and policies that are supported by the views of experts. Further, it is the height of irresponsibility for politicians from electorates relatively unaffected by the problems of street-based injection drug use to block legislation, thereby derailing the establishment of potentially life-saving initiatives that would otherwise benefit the most severely affected communities.[444]
Les Twentyman of Open Family notes:
In the time between now and the next session of parliament, people will continue to die from heroin and Melbourne is the heroin death capital of the world. We at the coalface, we urge that it should not be a political thing. It is about keeping people alive.[445]
Simon Castles concurs: ‘To me, rejecting the plan will be to turn our backs on the city’s many heroin addicts.’[446] Given that the Bill has been rejected, avoidable deaths will continue, as will the spread of life-threatening diseases. That is the fate to which certain political leaders have sentenced many Victorians.
Not suprisingly, the establishment of the facility in Kings Cross, Sydney, has already been the subject of litigation. Earlier this year, the Kings Cross Chamber of Commerce and Tourism Inc argued in the New South Wales Supreme Court that the Uniting Church in Australia Property Trust was not legally entitled to hold a licence to operate the facility and that the way in which the site was chosen was illegal.[447] Sully J decided that the facility could open legally, that the Trust could legitimately lease the Kings Cross building, that the Commissioner of Police and Director-General of the Department of Health had ‘acted reasonably and within the statutory criteria’, and that the challenge failed.[448]
After successfully repudiating this challenge, the next practical hurdle faced by the facility’s operators involved settling upon its actual commencement date. They hoped to avoid overly zealous media coverage by not disclosing the actual day of opening.[449] The intense media scrutiny may in fact have deterred many users from attending the facility, as only eight individuals used it on its first day of operation, and only four attended the following day.[450] The Kings Cross facility has the capacity to tend to 16 people at a time, and is expected to handle between 150 and 200 injections over two four-hour operating shifts each day.[451] During the first five to six days, over 100 persons used the facility.[452] No arrests were made during its initial commencement period.[453]
A ‘Service Manual’, appended to the application to operate the facility, made the following observations concerning the site’s ‘target population’:
While a range of studies have indicated that most injecting use occurs in private it is estimated that in Kings Cross 44% of injecting drug use takes place in public places (such as streets, parks and public toilets) or in ‘shooting galleries’. In August 1999 a survey was conducted of attendees of the K2 Needle Syringe Program (located in the epi-centre of the street-based sex work and drug scene in Kings Cross) regarding their injecting practices. Among the 198 respondents, 52 (29%) last injected in a public place and 77 (44%) last injected alone. Eighty-three percent of those who injected in public indicated that they would have preferred to use a Medically Supervised Injecting Centre.
The primary target population of an injecting room is the population of public injectors and those who inject alone. Members of this group are typically very marginalised, have multiple health and social problems including, in some case [sic], psychiatric conditions and homelessness.[454]
To date, the facility appears to be reaching its target. One week after its opening, it was proclaimed a success, with staff having ‘saved the life of a man who overdosed on heroin during a visit ... If the centre didn’t exist, it’s claimed the man may well have died without supervision.’[455] Reverend Herbert of the Uniting Church notes that staff responded immediately — and ‘adequately’ — to the overdose by providing oxygen ‘[a]nd that’s good, because it shows that we are dealing with the very issue we were intended to deal with.’[456] Further, even though only a handful of individuals attended the facility on its second day of operation, ‘one of them was a return visitor, a young man, seeking a referral for rehabilitation.’[457]
In its first three months of operation, the facility had 3363 visits from 831 registered drug-users.[458] ‘In the third month alone, the staff at the centre in Kings Cross dealt with six heroin overdoses and 12 cases of cocaine toxicity, some of which might have proved fatal if not for the medical intervention.’[459] On average, drug-users attended the facility four times a month, ranging from once to 80 times; 258 users had been referred to other treatment services or detoxification centres.[460] Importantly, health risk messages are communicated to visitors, as are ‘simple hygiene messages’.[461] ‘There has been no violence at the centre and no incidents of people trying to sell drugs. Dr van Beek said the Kings Cross police had not reported any changes in the patterns of drug-dealing in the area.’[462]
Wayne Stuart, a street-based injecting drug-user living in Kings Cross, notes that those who use heroin include the wealthy and impoverished, employed professionals and the homeless; but he also highlights the fact that those with money and jobs have the ability, in relative terms, to care for themselves.[463] Commenting on the trial’s great potential to provide care, he states, ‘[t]he big beneficiary [of the injecting facility] is the street user, who’s really up against it. There’s a lot of people around here who don’t have anywhere to live, anywhere to go.’[464] Another user, Pauline, 31 years old and homeless, concurs: she has frequently injected on the street during her 13 years of using drugs, as she cannot afford to hire a room in one of the area’s illegal ‘shooting galleries’ — where a drug-user can hire a room for 10 minutes’ duration, and inject privately.[465]
The facility’s longer-term effectiveness will be monitored by an evaluation committee, which will assess its impact on the incidence of overdoses in the community of Kings Cross, its ability to act as a referral service and gateway to treatment and rehabilitation programs, and its effect on criminal activity in the area.[466]
While this legislative and political initiative is to be applauded, it should be noted that, on a somewhat related (but admittedly not identical) matter, a degree of inconsistency — or incongruity — in the NSW government’s overall approach to harm reduction remains. Recently enacted sentencing legislation[467] makes the provision of syringes in prison an offence, contrary to the recommendations of many experts, including Canada’s Expert Committee on AIDS and Prisons, which has stated that clean syringes should be provided to prisoners to help reduce the spread of blood-borne infections.[468] With prisons, the government seems to adopt the ‘wrong message’ argument, asserting: ‘Of course, there are syringes in the prison system, but that does not mean that their use ought to be condoned or that there ought to be condonation of the supply of syringes to inmates.’[469] By way of contrast, in the debates concerning the establishment of supervised injecting facilities, the government did not give this ‘wrong message’ argument much credence. With respect to the NSW Bill, Dr Arthur Chesterfield-Evans criticised this misguided approach to drug use in prisons:
The rate of HIV-AIDS and hepatitis C in prisons is many times higher than that in the outside community. There needs to be recognition that there are intravenous drug users in prison and that syringes should be supplied. The Government has authorised the establishment of a safe injecting room. It should have the courage to implement the same harm minimisation philosophy in the prison system.[470]
Australia has had a tradition of undertaking important initiatives in its attempts to contain the spread of HIV/AIDS and in its development of programs to address the needs of persons living with HIV/AIDS. The approach generally has been non-judgmental, non-partisan and sophisticated. Commenting on those efforts to combat HIV/AIDS, the former Australian federal Minister for Justice, Duncan Kerr, asserts that the response ‘can be viewed as a triumph for community and government co-operation ... based on the need to include all groups, no matter how stigmatised and marginalised they had been from the political process.’[472]
The same approach must be adopted in Australia’s response to the health risks associated with street-based injection drug use. Switzerland, the Netherlands and Germany have demonstrated that the provision of supervised injecting facilities is possible and efficacious. However, most Australian jurisdictions, catering to the concerns of certain vocal and powerful segments of the community (such as some traders’ groups) are, to date, lagging behind these significant and progressive overseas developments. New South Wales is a most welcome exception.
Dolan and her co-authors caution that these trials can be difficult to evaluate, in terms of precisely measuring how they have prevented harm; they further state that ‘[i]t is important ... for the Australian community to be realistic about what these trials can achieve.’[473] Notwithstanding the NSW trial’s initial success, Premier Bob Carr cautions: ‘This is going to make a difference, a difference that’s worth making, but at the margins. ... We’ve never said this is the answer to the problem of heroin dependency. This is an alternative to it happening in the alleys of Kings Cross.’[474] However, evidence of even one prevented overdose or one prevented HIV seroconversion in the NSW trial is reason enough to require the trial of these facilities in other Australian States and Territories, to give effect to the highest attainable standard of health care that Australia can offer.[475]
When it became apparent that the State opposition would reject the Victorian initiative, David Penington pointedly stated:
If ... they are not going to support the Government on this matter, they are turning their back on hundreds of Victorians who are dying from heroin overdoses. ... And they’ve got a lot of explaining to do to the families of the 160-plus Victorians who have lost their lives already this year.[476]
There is a strong sentiment expressed in many quarters that something innovative and creative must be done, if we as a community are to have any success in tackling what has become an urgent problem. Recognising the seriousness of the situation, the Reverend Tim Costello, Director of the Melbourne Urban Mission Unit, described himself as ‘a reluctant supporter of injecting facilities’, as ‘no one could accept the deaths of 359 people — most under 30 — from heroin overdose last year.’[477] Dr Nick Crofts, director of the Centre for Harm Reduction, reflected: ‘I don’t know if safe injecting rooms are really going to solve anything at all but we won’t know until we try. ... Our motivation should be for the benefit of users, to make it safe for them.’[478] One year later, he commented: ‘I am for anything that reduces the harm associated with the idiotic, barbaric situation we currently have. There is a huge range of other needs, injecting rooms are merely one small part of what is needed.’[479]
After noting the billions of dollars spent on law enforcement, the thousands of persons sent to prison for breaches of drug laws, and the fact that prison does not cure drug addiction, Peter Cleeland, of the Australian Drug Law Reform Foundation, states:
Injecting rooms for users of illegal drugs will not reduce the sale of illegal drugs. They will not reduce the uptake of new users, they will not stop the crime associated with the trade. No one who understands the illegal drug market ever believed they would. But we who support them know that the homeless, the mentally ill, the physically sick and those who are looking for help will go to these facilities where they will not be treated as criminals ... where they will receive counselling, and where they will not die on our streets like unwanted human garbage. That is better than a continuation of a failed system of prohibition.[480]
While the proposal of a trial is a significant suggestion for reform, it is deliberately modest in terms of what it claims to be capable of achieving. Indeed, it is misguided to view injecting facilities as a panacea, as doing so could divert attention from other worthy options and alternative reform measures.[481]
It is time we gave up making war on drugs and drug users, and instead made peace with people who use drugs. We should try where we can to limit the damage that drugs do to people, and endeavour to keep drug users alive and well. Sooner or later, most will give up drugs when they are ready. Drug policy will develop by evolution, not revolution. We must abandon the search for perfect solutions. There are none. ... Obstacles to reform are crumbling, but the political perception that there are no votes in junkies remains.[482]
Resisting the introduction of supervised injecting facilities not only is unjust, but also amounts to a breach of Australia’s international human rights obligations — for example, to fulfil attainable health care standards. Assuming that injecting facilities are successful as trials (which has already been demonstrated in Kings Cross and several European countries), they may well become permanent features of multifaceted harm reduction strategies. Once again, their continuance would help fulfil our international obligations. Moreover, the drug-related treaties to which Australia is a party themselves permit the permanent establishment of facilities, as part of each state’s right to undertake scientific experiments and to assess what measures may be taken in accordance with its ‘prevailing conditions’ and domestic requirements. Only the most irresponsible authorities, decision-makers and business associations would act to stifle legally permissible measures that could prevent grave harm.
To help recall what the supervised injecting facilities (and harm minimisation) debate is primarily concerned with, the final word belongs to someone intimately connected with trying to respond to the problems associated with street-based injection drug use. Ms Toohey, of the NSW Youth Advisory Council, states:
The message from ... young people is simple. It is not long or complex. Drug abusers and drug users are not your enemies. For them, a war against drugs translates as a war against them. ... The message of Joy Dibley, 17 ... is this: ‘My cousin died of a heroin overdose a couple of weeks ago. He would not have died if he had been able to shoot up safely. I strongly believe that a heroin trial and safe shooting rooms would have saved my cousin. I loved him dearly and I miss him.’ These may sound like tear-jerkers to you, but these are people I see on the street day after day. These are real, living people. It is important that you understand that young people and drugs are society and health issues, not a criminal issue.[483]
[*] BA (Hons), LLB (Hons) (Manit), LLM (London); Senior Lecturer in Law, The University of Melbourne. Thanks to Research Assistant Jeremy Masters, for his tireless efforts and very much appreciated assistance; the Australian Research Council; Ralf Jürgens, Executive Director, Canadian HIV/AIDS Legal Network; Richard Elliott and all those working at the Canadian HIV/AIDS Legal Network; Thomas Kerr, Harm Reduction Action Society, Vancouver; Michael Linhart, Prison Outreach Program Co-ordinator, British Columbia Persons Living with AIDS Society; Ann Livingston, Community Projects Co-ordinator, Vancouver Area Network of Drug Users; Councillor Darren Ray, City of Port Phillip; and Professor Harold Luntz. Finally, thanks to this article’s anonymous referees for their very helpful, valuable comments and suggestions, many of which have been incorporated, and to the editorial staff of the Melbourne University Law Review for all their efforts. Any and all errors in this article are, of course, my own.
[1] Margaret Hamilton, Transcript of Proceedings, NSW Drug Summit 1999, 17 May 1999 <http://
drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author).
[2] This description is derived from Drugs and Crime Prevention Committee (‘DCPC’), Parliament of Victoria, ‘Safe Injecting Facilities — Their Justification and Viability in the Victorian Setting’ (Occasional Paper No 2, 1999) 1–2.
[3] Eddie Micallef, Safe Injection Facilities: Should Victoria Have a SIF Pilot-Trial? (1998) The Lindesmith Center — Drug Policy Foundation <http://lindesmith.org/library/micallef.html> at 21 September 2001 (copy on file with author).
[4] ADCA, Drug Policy 2000: A New Agenda for Harm Reduction (2000) 24. The Victorian Drug Policy Expert Committee (‘VDPEC’), Drugs: Responding to the Issues, Engaging the Community — Stage One Report (2000) 49 notes that devising future drug policy is a complex task which requires careful thought and considerable development: ‘The Government has outlined a drug policy based upon the four themes of prevention, saving lives, enhancing treatment and effective law enforcement. The Committee agrees that these themes underpin a comprehensive drug policy.’
[5] Justice Michael Kirby, ‘A Legitimate Concern’ (1991) 2 Criminology Australia 9, 15.
[6] ADCA, above n 4, 87; Thomas Kerr, Safe Injection Facilities: Proposal for a Vancouver Pilot Project (2000) The Lindesmith Center — Drug Policy Foundation <http://www.lindesmith.org/
librarypdf_files/SIFProposal.pdf> at 21 September 2001 (copy on file with author) 15.
[7] Wayne Crawford, ‘Time for a Drugs Change’, The Mercury (Hobart), 15 July 2000, 18. Crawford notes that the number of heroin deaths in one year is more than twice the total number of Australians killed in the Vietnam War and that the death toll from heroin overdose may soon outstrip the national road toll.
[9] Ibid 88. The ADCA also notes the rise in the prevalence of hepatitis A among injecting drug-users.
[10] Ibid 24.
[11] ‘State’s Deadly Heroin Toll’, The Age (Melbourne), 16 December 2000 <http://www.theage.
com.au/news/2000/12/16/FFXUW93QQGC.html> at 21 September 2001 (copy on file with author).
[12] Wayne Hall et al, ‘How Many Dependent Heroin Users Are There in Australia?’ (2000) 173 Medical Journal of Australia 528. ‘Dependent’ heroin users are defined as those users who inject daily or almost every day. It has been suggested that this is only 25 per cent of the total number of users and therefore that ‘the number of current heroin users in Australia would be about 300 000’. See also Editorial, ‘Harm Reduction: Closing the Distance’ (2000) 165 Canadian Medical Association Journal 389.
[13] UNAIDS, Report on the Global HIV/AIDS Epidemic (2000) 75.
[14] VDPEC, Drugs: Responding to the Issues, above n 4, vi. See also Kate Dolan et al, ‘Drug Consumption Facilities in Europe and the Establishment of Supervised Injecting Centres in Australia’ (2000) 19 Drug and Alcohol Review 337, 341; VDPEC, Drugs: Meeting the Challenge — Stage Two Report (2000) 8.
[15] John Elder and Paul Heinrichs, ‘Heroin: How the Bush Was Hooked’, The Sunday Age (Melbourne), 9 July 2000, 1–2.
[16] John Kerin, ‘PM Urged to Help Get Blacks Off Heroin’, Weekend Australian (Sydney), 16–17 September 2000, 29. See VDPEC, Drugs: Meeting the Challenge, above n 14, 27–8. The VDPEC’s recommendation 1.5 calls for a Koori Drug Strategy, developed in conjunction with the Koori community, ‘as an integrated yet identifiable component of the overall drug strategy’: at 177.
[17] VDPEC, Drugs: Meeting the Challenge, above n 14, 177.
[18] John Saunders and Alan Richards, ‘Getting to Grips with Heroin and Other Opioid Use’ (2000) 173 Medical Journal of Australia 509.
[19] Chloe Saltau and Ewin Hannan, ‘Push for a Second City Injecting Room’, The Age (Melbourne), 1 June 2000, 1–2, citing the Chief Executive Officer of Hanover Welfare Services, Tony Nicholson. ‘Street injectors ... not only experience greater than usual risk of serious harm, they are typically the most marginalised group of users, and are less likely to access treatment and other health-care services’: DCPC, above n 2, 11. See Meaghan Shaw, ‘Support for $7.5m Bid to Break Drugs and Homeless Link’, The Age (Melbourne), 27 November 2000, 4: the Victorian government will spend $7.5 million ‘to help 9000 homeless people break the link between homelessness and drug addiction’, by funding ‘residential withdrawal beds’, extra counselling and home-based withdrawal services.
[21] Ibid. See also Craig Fry, Sandra Fox and Greg Rumbold, ‘Establishing Safe Injecting Rooms in Australia: Attitudes of Injecting Drug Users’ (1999) 23 Australian and New Zealand Journal of Public Health 501. Their study discloses that most injecting drug-users inject at home, however a sizeable proportion inject in cars, car parks, alleys, abandoned building sites, public toilets and parks.
[23] Ibid.
[24] Simon Castles, ‘A Window on the World of Heroin Addicts’, The Age (Melbourne), 2 June 2000, 15. Castles is the editor of The Big Issue magazine in Melbourne.
[25] James Norman, ‘Roaring Trade’, Melbourne Star Observer (Melbourne), 15 May 1998, 9.
[26] DCPC, above n 2, 3. See also VDPEC, Drugs: Responding to the Issues, above n 4, 5.
[27] Jan Skirrow, ‘Lessons from Krever — A Personal Perspective’ (1999) 4 Canadian HIV/AIDS Policy and Law Newsletter 35, 40–1.
[28] The Premier’s Drug Advisory Council (‘PDAC’), Drugs and Our Community (1996) 30–31. See, eg, Drugs, Poisons and Controlled Substances Act 1981 (Vic). See also Craig Reinarman, Why Dutch Drug Policy Threatens the US (1998) Centrum voor Drugsonderzoek <http://www.
cedro_uva.org/lib/reinarman.why.html> at 21 September 2001 (copy on file with author):
The US has a history of hysteria about intoxicating substances dating back to the 19th century Temperance crusade. ... US drug control ideology holds that there is no such thing as use of an illicit drug, only abuse. ... [T]he US should realize that other societies do not share its phobias and do not appreciate its tendency toward drug policy imperialism — particularly when what the US offers is repressive, expensive failure.
[29] Alex Wodak and Ron Owens, Drug Prohibition: A Call for Change (1996) 12. In ch 2, the authors discuss the history of prohibition in Australia, and international controls, including anti-Chinese sentiment and racial hatred that drove much of this regulation.
[30] Diane Riley, ‘Injection Drug Use and HIV/AIDS: Policy Issues’ in Canadian HIV/AIDS Legal Network, Injection Drug Use and HIV/AIDS: Legal and Ethical Issues — Background Papers (1999) C3–C4.
[31] Thomas Kerr, above n 6, 24.
[32] Riley, above n 30, C3–C4.
[33] Ibid. Clover Moore, Member of the NSW Legislative Assembly, notes that zero-tolerance policing in Sydney’s central business district cleared that area of drug-users, but led to the sharing of needles and the displacement of street-based users into residential areas. Street use remains, although in a different area and in more dangerous circumstances: Clover Moore, Transcript of Proceedings, NSW Drug Summit 1999, 18 May 1999 <http://drugsummit.socialchange.
net.au> at 21 September 2001 (copy on file with author).
[35] Ibid C4.
[36] Dr Alex Wodak, Director of the Alcohol and Drug Service at St Vincent’s Hospital, Sydney, asserts: ‘Many clinicians who are committed to this field have worked out that the health of [their] patients ... [is] far more likely to be damaged by the effects of laws designed to deter drug use ... far more so than the direct effects of the drugs themselves.’ See Alex Wodak, Transcript of Proceedings, NSW Drug Summit 1999, 20 May 1999 <http://drugsummit.socialchange.
net.au> at 21 September 2001 (copy on file with author).
[37] Wodak and Owens, above n 29, 4. They state that ‘[p]rohibition of drugs like heroin has not worked in Australia for decades’: at 5. See also Christopher Gatto, European Drug Policy: Analysis and Case Studies (1999) The National Organization for the Reform of Marijuana Laws <http://www.norml.org/legal/european_policy.shtml> at 21 September 2001 (copy on file with author): in 1990, representatives from Frankfurt, Zurich, Hamburg and Amsterdam issued the ‘Frankfurt Resolution’ which stated that ‘attempts at eliminating drugs and drug consumption ... are a failure, and a new model is needed to better cope with drug use in European cities.’
[38] Wodak and Owens, above n 29, 7–8.
[39] Riley, above n 30, C9. Riley states: ‘indeed, the goal of the harm-reduction approach is to attract drug users who will not consider abstinence-based programs or services.’ See Thomas Kerr, above n 6, 19. See also Fry, Fox and Rumbold, above n 21.
[40] The Canadian Centre on Substance Abuse National Working Group Policy outlines the main features of harm reduction principles: pragmatism, humanistic values, focus on harms, balancing costs and benefits, priority of immediate goals: Harm Reduction: Concepts and Practice — A Policy Discussion Paper (1996) Canadian Centre on Substance Abuse <http://www.ccsa.ca/
docs/wgharm.htm> at 21 September 2001 (copy on file with author).
[41] Canadian HIV/AIDS Legal Network, Injection Drug Use and HIV/AIDS — Legal and Ethical Issues (1999) 27.
[43] UNAIDS, above n 13, 76. See also Wodak and Owens, above n 29, 6.
[46] Wodak and Owens, above n 29, 7. The authors note that even the International Narcotics Control Board’s reports increasingly recognise the ‘failure of international drug control efforts’: at 20.
[47] VDPEC, Drugs: Responding to the Issues, above n 4, 11.
[48] PDAC, above n 28, 65. See Wodak and Owens, above n 29, 9, noting that ‘we are nationally committed to reducing the adverse consequences of drug use.’ See also Royal Australasian College of Physicians, From Hope to Science: Illicit Drugs Policy in Australia (2001) 12.
[49] Peter Grogan, Vice President of the Australian Federation of AIDS Organisations, quoted in James McKenzie, ‘Injecting Rooms Are Urgent: AIDS Council Says’, Brother Sister (Melbourne), 5 August 1999, 3. See also Riley, above n 30, C7.
[50] Canadian HIV/AIDS Legal Network, Injection Drug Use and HIV/AIDS — Legal and Ethical Issues, above n 41, 43.
[51] PDAC, above n 28, 40. See also NSW Drug Summit 1999 — Communique, 21 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author); Riley, above n 30, C53; Fry, Fox and Rumbold, above n 21, 503.
[52] Margaret Hamilton, Transcript of Proceedings, NSW Drug Summit 1999, 17 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author).
[53] Justice James Wood, Transcript of Proceedings, NSW Drug Summit 1999, 20 May 1999 <http://
drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author). See also Ian Cohen, Member of the NSW Legislative Council, Transcript of Proceedings, NSW Drug Summit 1999, 18 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author).
[54] VDPEC, Drugs: Responding to the Issues, above n 4, 2. See also Riley, above n 30, C7. VDPEC, Drugs: Meeting the Challenge, above n 14, 177–85 calls on legal, health and education sectors to adopt an integrated approach — the establishment of a heroin trial, greater medical involvement in treatment, increased methadone program funding, and changes to laws regarding syringe possession. See Sally Finlay, ‘“Integrated Approach” Needed’, The Age (Melbourne), 13 November 2000, 4.
[55] ADCA, above n 4, 89 (as part of a ‘four-pillared’ (multifaceted) approach). See also City of Port Phillip, Report to the Drug Policy Expert Committee on Community Consultation Regarding the Provision of Injecting Facilities within the City of Port Phillip (2000) 18; Fry, Fox and Rumbold, above n 21, 503.
[56] VDPEC, Drugs: Responding to the Issues, above n 4, 18.
[57] ‘Inaugural Metropolitan Mayors’ Statement on Drugs’ (1998), cited in City of Port Phillip, above n 55, 6.
[58] See ADCA, above n 4, 5. See also Donald MacPherson, A Framework for Action: A Four-Pillar Approach to Drug Problems in Vancouver — Draft Discussion Paper (2000) 56, emphasising the need for community involvement to help formulate policy.
[59] MacPherson, above n 58, 56 states that the target group’s needs are critical — eg, to help determine appropriate locations, rules and regulations for facilities. See also Thomas Kerr, above n 6, 38.
[60] Robert Griew, Chief Executive Officer of the AIDS Council of NSW, Transcript of Proceedings, NSW Drug Summit 1999, 17 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author).
[63] Ibid.
[65] VDPEC, Drugs: Responding to the Issues, above n 4, vi; PDAC, above n 28; ADCA, above n 4, 191.
[66] New South Wales, Royal Commission into the New South Wales Police Service (‘NSW Royal Commission’), Final Report (1997) vol 2, 222.
[67] James McKenzie, ‘New Mayor Backs Room’, Brother Sister (Melbourne), 29 April 2000, 7.
[68] ‘[S]upport for ... facilities in Port Phillip is at least 77.6 per cent among local residents. In the City of Melbourne, support is at 74 per cent’: ibid. See also City of Port Phillip, above n 55, 25. More generally, a Bulletin-Morgan poll revealed that, Australia-wide, 52 per cent of those polled disapproved of trialling supervised injecting centres, 37 per cent approved, and 11 per cent neither approved nor disapproved (a total of 1055 persons were interviewed): ‘Needle and the Political Damage Done’, The Bulletin (Sydney), 17 October 2000, 22.
[69] Sally Finlay, ‘Mayoral Views on Supervised Injecting Rooms’, The Age (Melbourne), 20 April 2000, 4.
[70] See McKenzie, ‘Injecting Rooms Are Urgent’, above n 49.
[71] See Editorial, ‘Injecting Room Fears and Reality’, The Age (Melbourne), 16 June 2000, 14.
[72] Eg, the Archbishop of the Anglican Church, Peter Carnley: David Reardon and Chloe Saltau, ‘Drugs Divide Anglicans’, The Age (Melbourne), 18 July 2000, 3. Father Geoffrey King, Principal of the Jesuit Theological College in Parkville (Melbourne), stated in Manika Naidoo, ‘Backing for Heroin Rooms’, The Age (Melbourne), 6 May 2000, 21: ‘the church’s governing principal [sic] of “respect for human life” meant drug use had to be tolerated within an overall strategy to combat addiction. “A respect for human life requires a holistic response” ...’.
[73] John McKoy, retiring after 11 years in Victoria’s drug squad, stated in John Silvester, ‘Try Heroin Rooms, Says Drug Squad Chief’, The Age (Melbourne), 15 July 2000, 1: ‘[Facilities and heroin trials go] against my training, upbringing and beliefs but I believe we have to look at these alternatives. ... What we are doing is not working and we have to try to find a better way. I firmly believe the government should try at least one safe injecting house and see how it goes.’ See also Keith Moor, ‘Give It a Try, Says Ex-Drug Squad Chief’, Herald Sun (Melbourne), 22 July 2000, 13.
[74] ‘At Inner South Community Health Service we adhere strongly to a harm reduction framework and see illicit drug use as a health issue. ... [P]rohibition is not useful and has failed. [Supervised injecting facilities] are viewed as worth trialling in combination with other strategies.’ See City of Port Phillip, above n 55, 16. Hanover Welfare Services’ Chief Executive Officer, Tony Nicholson, was quoted in Brett Foley and Sally Finlay, ‘Councils, Welfare Reactions Mixed’, The Age (Melbourne), 27 April 2000, 4 as stating that ‘if safe injecting rooms were not introduced, homeless centres would break down under the weight of the problem.’
[75] See ‘Supporting a Trial’, The Age (Melbourne), 1 June 2000, 2, citing Tina Millar, President of the Law Institute of Victoria.
[76] While not supporting illicit drug use, the Law Council of Australia called for the adoption of several harm reduction proposals, including the ‘immediate establishment of a network of supervised injecting facilities’: Law Council of Australia, Council Adopts Resolution on Drugs: Calls for Federal Government to Permit Supervised Heroin Trial in ACT, Press Release (20 April 2000). Dr Gordon Hughes, President of the Law Council, stated:
[T]he Council’s view is that drug addiction should be treated more as a medical and health issue, rather than through the current emphasis of it being a criminal law issue. The current approaches to drug prohibition have been a tragic and expensive failure, and other avenues must now be trialled and tried.
See also ibid.
[77] Richard Larkins, ‘Supervised Injecting Rooms Deserve a Trial’, The Australian (Sydney), 11 August 2000, 15: ‘As a scientist, my response is to argue that we should undertake carefully evaluated trials of plausible new approaches. ... We must be prepared to evaluate additional methods and to devise policy based on evidence rather than emotion.’ See also Royal Australasian College of Physicians, above n 48, 19; ‘Doctors Call for Supervised Heroin Trial’, Sydney Morning Herald (Sydney), 15 May 2001 <http://www.smh.com.au/breaking/2001/05/15/
FFXK2420RMC.html> at 8 June 2001 (copy on file with author).
[78] Larissa Dubecki, ‘Top Victorians’ Plea on Heroin’, The Age (Melbourne), 24 July 2000, 3. They included former Australian Governor-General, Sir Zelman Cowen, and Australian of the Year, Sir Gustav Nossal. ‘Named alongside them are some of the state’s leading lights in science, law, business and sport ... [including] family court judge Justice Sally Brown ... [and] president of the Australian Medical Association (Victoria), Dr Michael Sedgley ...’.
[79] Justice Sally Brown, Brian Jamieson, Sir Gustav Nossal, Professor Suzanne Gory, David Parkin, Michael Robinson, Sir Zelman Cowen, Dame Elisabeth Murdoch, Dr Michael Sedgley, ‘An Open Letter to All Victorians’, The Age (Melbourne), 24 July 2000, 7.
[80] Farah Farouque, ‘Grieving Dad Pleads for Injecting Rooms’, The Age (Melbourne), 16 June 2000, 6. See also several speeches given at the NSW Drug Summit 1999. Jan Burnswoods, Member of the NSW Legislative Council, cites a letter from the mother of a 23 year-old, found dead in his car with a syringe in his hand: ‘My son would be alive today if he could have used drugs in a safe controlled environment ... not alone in his car.’ See Transcript of Proceedings, NSW Drug Summit 1999, 19 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author).
[81] Sally Finlay, ‘Writing on the Wall for Injecting Rooms’, The Age (Melbourne), 27 April 2000, 4. See also VDPEC, Drugs: Responding to the Issues, above n 4, 43.
[82] Hugh Martin, ‘Most Addicts Favor Room Idea: Study’, The Age (Melbourne), 20 April 2000, 5. Other surveys also reveal that street-based injecting drug-users will utilise facilities: VDPEC, Drugs: Responding to the Issues, above n 4, 36.
[83] Martin, ‘Most Addicts Favor Room Idea’, above n 82. See DCPC, above n 2, 5: the authors cite a 1998 survey of 400 Melbourne injecting drug-users, which showed that 77 per cent would use a facility. See also ADCA, above n 4, 190.
[84] Fry, Fox and Rumbold, above n 21, 503: (i) men, (ii) those who experienced relatively frequent non-fatal overdoses and (iii) those who had injected more frequently in the previous six months were the cohorts most willing to use facilities; ‘[t]he finding that [these groups] would be willing to use [supervised injecting facilities] is particularly encouraging.’
[85] Nick Lenaghan, ‘Heroin Addicts Use More, More Often’, The Age (Melbourne), 30 November 2000, 8, citing Craig Fry and Peter Miller, ‘Victorian Drug Trends 2000: Findings from the Melbourne Arm of the Illicit Drug Reporting System (IDRS) Study’ (National Drug and Alcohol Research Centre Technical Report No 108, 2001). Twenty-three per cent of those surveyed in a 1999 study would not use facilities; their reasons included a preference to inject at home and concerns regarding police presence: Fry, Fox and Rumbold, above n 21, 502.
[86] Parliament of NSW, Joint Select Committee into Safe Injecting Rooms (‘NSW Joint Select Committee’), Report on the Establishment or Trial of Safe Injecting Rooms (1998) 188.
[87] Ibid.
[88] Ibid 190, endorsing the recommendation of Commissioner Wood in NSW Royal Commission, above n 66, 222.
[89] John Howard, Our Strongest Defence against the Drug Problem ... (2001). See also Darren Gray, ‘No Injecting Rooms or Heroin Trials: PM’, The Age (Melbourne), 27 March 2001, 4; Amanda Dunn, ‘Teenagers Shocked by TV Ad Campaign’, The Age (Melbourne), 29 March 2001, 6.
[90] Chloe Saltau, ‘Drug Ads Unrealistic, Says Judge’, The Age (Melbourne), 5 April 2001, 3.
[91] Ibid. Paul Dillon of Australia’s National Drug and Alcohol Research Centre criticises the Prime Minister’s anti-drugs campaign for ignoring many of the complexities concerning why people use drugs. For example, ‘the pure enjoyment factor has been proved in countless studies but is rarely acknowledged in prevention campaigns’: Chloe Saltau, ‘Could It Be that Young People Take Drugs Because They, Ah, Like Them?’, The Age (Melbourne), 14 April 2001, 8.
[92] Saltau, ‘Drug Ads Unrealistic’, above n 90.
[93] Sian Powell, ‘Addiction in a Safer Vein’, The Australian (Sydney), 6 April 2001, 14.
[95] Submission to the City of Port Phillip, above n 55, 17.
[96] Paola Totaro, ‘Vatican Declares All Heroin Rooms Off Limits’, The Age (Melbourne), 23 September 2000, 5. This edict also implies strong opposition to already existing harm minimisation measures, such as needle exchanges. It was issued one year after the Vatican had ordered Sydney’s Sisters of Charity to abandon their commitment to assisting the NSW government in the operation and management of Australia’s first proposed supervised injecting facility trial. See Powell, ‘Addiction in a Safer Vein’, above n 93.
[98] Ibid.
[99] NSW Royal Commission, above n 66, 221.
[100] Thomas Kerr, above n 6, 4. See also Royal Australasian College of Physicians, above n 48, 13.
[101] Thomas Kerr, above n 6, 4. See also Royal Australasian College of Physicians, above n 48, 13.
[102] DCPC, above n 2, 9: ‘The message here is a dual one: that injecting [drug] use in these contexts is a harmful activity, and that the state is responsible and compassionate in the face of these harms.’
[103] Crawford, above n 7. The fact that young people are excluded from most existing and proposed facilities remains problematic. See below Part VI(F).
[105] Harm Reduction: Concepts and Practice, above n 40.
[106] ADCA, above n 4, 186. When first established, public reaction to exchanges was not always positive; however, exchanges are now widespread, with over 200 Victorian exchanges in community health centres, alcohol and drug agencies, shopfronts, hospitals, pharmacies, youth services, university student health services, municipal councils, Aboriginal co-operatives and a sexual health service: PDAC, above n 28, 53. See Meaghan Shaw, ‘More Funds for Needle Exchanges’, The Age (Melbourne), 24 June 2000, 15.
[107] Wodak and Owens, above n 29, 55.
[109] Ibid 185: ‘They have been shown to reduce HIV/AIDS and hepatitis C transmission and they are cost effective. It has been estimated that 3000 cases of HIV/AIDS were avoided in Australia in 1991 through [their] operation ...’ Riley, above n 30, C53 comments on the minimal cost of providing an exchange compared with caring for someone with HIV. This is, of course, aside from the obvious human toll if someone were to be infected with the virus when it could have been avoided. See also Deirdre Grusovin, Member of the NSW Legislative Assembly, Transcript of Proceedings, NSW Drug Summit 1999, 20 May 1999 <http://drugsummit.socialchange.net.
au> at 21 September 2001 (copy on file with author); PDAC, above n 28, 53.
[111] Canadian HIV/AIDS Legal Network, Injection Drug Use and HIV/AIDS — Legal and Ethical Issues, above n 41, 81.
[112] See Deirdre Grusovin, Member of the NSW Legislative Assembly, Transcript of Proceedings, NSW Drug Summit 1999, 20 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author): ‘Can anyone really argue that relegating addicts to the dirty Caroline Lane of Redfern and city backstreet gutters is a better option?’
[113] Ibid.
[114] Ibid.
[115] See Micallef, above n 3.
[116] NSW Royal Commission, above n 66, 222.
[117] Quoted in Caroline Overington, ‘Chasing an Answer’, The Age (Melbourne), 21 March 2001, 15.
[118] Based on the experience in overseas jurisdictions, it has been suggested that supervised injecting facilities could prevent one overdose death every five days: NSW Joint Select Committee, above n 86, 79; DCPC, above n 2, 6. See also Dolan et al, above n 14, 341; Thomas Kerr, above n 6, 33.
[119] MacPherson, above n 58, 56. Those advocating a trial highlight the potential health benefits from facilities; they note, however, that ‘it is difficult to assess the precise impact of European [supervised injecting facilities] as there have been few impact evaluation studies’: Fry, Fox and Rumbold, above n 21, 501.
[120] Quoted in Finlay, ‘Writing on the Wall for Injecting Rooms’, above n 81.
[121] Fry, Fox and Rumbold, above n 21, 503.
[122] Ibid.
[123] Thomas Kerr, above n 6, 32: 66 per cent of the clients attending Frankfurt’s facilities used the premises because of their fear of police.
[124] Ibid 28.
[125] Ibid.
[126] NSW Royal Commission, above n 66, 222. See also Dolan et al, above n 14, 338; ADCA, above n 4, 189–90.
[127] Thomas Kerr, above n 6, 4. Kerr notes evidence which reveals that, at one site in Frankfurt, 35 per cent of the clients had not previously had contact with ‘drug help services’: at 31–2.
[128] Ibid 34.
[129] DCPC, above n 2, 15–16. See, eg, Queensland Premier Peter Beattie, quoted in Ainsley Pavey, ‘Beattie Opposes Injecting Rooms’, The Age (Melbourne), 24 July 2000 <http://www.theage.
com.au/news/20000724/A25310-2000Jul23.html> at 14 August 2000 (copy on file with author).
[130] Submission to the City of Port Phillip, above n 55, 17.
[131] See below Part VI(C).
[132] Submission to the City of Port Phillip, above n 55, 21. However, opposition to a trial is not a universally held view among businesses; eg, ‘[t]he George Cinemas [located in the heart of Fitzroy Street, St Kilda (Port Phillip)] wholeheartedly support the introduction of a safe injecting room in the local area’: at 16.
[133] VDPEC, Drugs: Responding to the Issues, above n 4, 43.
[134] MacPherson, above n 58, 56.
[135] DCPC, above n 2, 8. The Kings Cross facility opened without an advertised commencement date, to avoid media scrutiny: Melissa Fyfe, ‘Drug Injecting Centre Faces Siege by Media’, The Age (Melbourne), 1 May 2001 <http://www.theage.com.au/news/2001/05/01/FFX90B906MC.
html> at 12 May 2001 (copy on file with author).
[137] Ibid.
[138] ADCA, above n 4, 190. See Micallef, above n 3; Meaghan Shaw, ‘Injecting Rooms Will Take Syringes off Beach: Report’, The Age (Melbourne), 7 July 2000, 4.
[139] NSW Royal Commission, above n 66, 221.
[140] Thomas Kerr, above n 6, 35–6.
[141] Clover Moore, Member of the NSW Legislative Assembly, Transcript of Proceedings, NSW Drug Summit 1999, 18 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author). In 1997, 68 per cent of 300 Kings Cross residents surveyed supported establishing a supervised injecting facility; this figure rose to 76 per cent in 1998: Dolan et al, above n 14, 341, citing M MacDonald et al, K2 and Kings Cross: Community Attitudes to the Needle Syringe Programme, Discarded Syringes and Public Injection (1999).
[142] DCPC, above n 2, 7. According to Baptist Church minister the Reverend Tim Costello, ‘Baptist Place, behind the Collins Street Baptist Church, had become a “de facto supervised injecting facility”, attracting more than 25 per cent of heroin use in the central business district’: Manika Naidoo, ‘Cool Off Call on Injecting Debate’, The Age (Melbourne), 14 June 2000, 4.
[143] Dolan et al, above n 14, 338. See Powell, ‘Addiction in a Safer Vein’, above n 93: shooting galleries in Kings Cross charge approximately $12 for a room for 10 minutes duration. Powell notes that they are
boltholes where addicts pay a few bucks for a few minutes of peace and privacy ... People die in them [according to one street based injecting drug user, Wayne Stuart] ... They give you a time limit, but they don’t start kicking on the door for 20 minutes and people can die in that time. I know a guy who died in a Marrickville hothouse ... They dragged him outside and left him on the street. The dealing went on.
[144] New South Wales, Parliamentary Debates, Legislative Council, 4 April 2000, 3971 (John Della Bosca, Special Minister of State).
[145] City of Port Phillip, above n 55, 20. In a submission to the City of Port Phillip, the management of the George Cinemas comments that the ‘level of illicit drug use in our toilets is excessive and there is little we can do to stop [it] without the support of local and State government. ... A safe injecting room is urgently needed in the local area, to prevent our toilets being used for this purpose in future’: at 21.
[146] The cost of operating a Swiss facility is said to be about A$300 000 per year: Micallef, above n 3. See also MacPherson, above n 58, 56. The Kings Cross facility has been said to cost $25 000 to $33 000 a week to operate (or $1.8 million to $2.4 million per year): Caroline Overington ‘The Cross at the Crossroads’, The Age (Melbourne), 12 May 2001, 16. However, Overington, ‘Chasing an Answer’, above n 117, states that it would cost $500 000 a year to operate a facility. With respect to the cost associated with drug use generally, see, eg, Eric Single, ‘The Economic Implications of Injection Drug Use’ (Paper Presented at the Conference on Injection Drug Use, Montreal, Canada, March 1999). Single discusses how the harms arising from injection drug use result in large-scale costs to public health care and lost productivity. He also comments on the connection to crime and consequent law enforcement costs. See also Thomas Kerr, above n 6, 3: injection drug use is said to cost British Columbia more than Can$207 million annually; the cost of providing medical care for an injection drug-user with HIV is approximately Can$139 000.
[148] ADCA, above n 4, 190. Those working in German facilities were able to respond to most emergencies without the need to call ambulance services: Thomas Kerr, above n 6, 33.
[149] Thomas Kerr, above n 6, 10–11: 82 per cent of the cost arising from illegal drug use in Canada is spent on law enforcement, 16 per cent goes to health care, and 8 per cent is devoted to research and prevention. Kerr continues (at 11): one study reveals that ‘every dollar spent on health-based approaches yielded seven dollars in health and social savings.’ At 25, Kerr notes European evidence with respect to the effect of facilities: law enforcement efforts are now more effectively utilised, focusing on traffickers and combating organised crime, rather than arresting street-based injecting drug-users — many of whom now use facilities.
[150] NSW Joint Select Committee, above n 86, 187.
[151] The Rev Frederick Nile, Member of the NSW Legislative Council, Transcript of Proceedings, NSW Drug Summit 1999, 18 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author).
[152] Eugene Oscapella and Richard Elliott, ‘A Legal Analysis of Priority Issues’ in Canadian HIV/AIDS Legal Network, Injection Drug Use and HIV/AIDS: Legal and Ethical Issues — Background Papers (1999) A8–A9.
[153] David Roy, ‘An Ethics Commentary on Priority Issues’ in Canadian HIV/AIDS Legal Network, Injection Drug Use and HIV/AIDS: Legal and Ethical Issues — Background Papers (1999) B54 (emphasis in original).
[154] [1990] Aust Torts Reps 81-009, 67,632.
[155] Ibid 67,635. The majority held that the plaintiff’s damages claim for her addiction (and subsequent destitution) was not recoverable: these consequences were considered too remote; further, the causal connection had been severed by new intervening acts. See also Kirby P’s dissent in State Rail Authority of New South Wales v Wiegold [1991] Aust Torts Reps 81-148, 69,468.
[156] Yates v Jones [1990] Aust Torts Reps 81-009, 67,635.
[157] The Royal Australasian College of Physicians, above n 48, 14 recently urged policy-makers to pay due regard to scientific evidence produced by the work of experts — researchers and scientists — who call for the introduction of facilities (and other harm reduction measures).
[158] Dr Ingrid van Beek, Transcript of Proceedings, NSW Drug Summit 1999, 18 May 1999 <http://
drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author). Facilities are cited as a ‘prime example of a strategy’ that meets the objectives of (i) reducing overdose deaths and preventing HIV and hepatitis B and C transmission, and (ii) moving injecting off the streets, along with its paraphernalia.
[160] NSW Drug Summit 1999 — Communique, above n 51, 6 cites social and economic problems, poverty, unemployment, mental health problems, family breakdown and stress, social peer pressure, cultural dislocation and a lack of hope as connected or related to drug dependency. See also Royal Australasian College of Physicians, above n 48, 23–4.
[161] It has been suggested by one of this article’s anonymous referees that this view might be said by some critics to smack of ‘(enlightened) paternalism’ — ‘a form of idealism based on the principle of harm reduction’, which some drug-users may find as objectionable as the views of legal moralists who consider all illegal drug use to be inherently wrong. Drug-users may not want any state intervention, and may argue that the conduct at issue injures no one but themselves — as users. This perspective certainly warrants acknowledgment; however, in response, it could be argued that in some circumstances the state has a duty to intervene and to try to ‘save’ individuals from themselves, regardless of the underlying paternalistic reasons for doing so. This is true in many contexts — including, for example, measures requiring the use of seatbelts and helmets. Sometimes, the interests of the community’s general public health needs may override an individual’s desire to be left alone. In any case, with respect to the provision of injecting facilities, no one is suggesting that facilities must be used — one can still choose to overdose in an alleyway. But those who want to inject safely should be given the opportunity to do so.
[162] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976); International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Additional international instruments that promote health include the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195, art 5(e)(iv) (entered into force 4 January 1969); the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981); the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, art 24 (entered into force 2 September 1990); and the Constitution of the World Health Organization, opened for signature 22 July 1946, 14 UNTS 185 (entered into force 7 April 1948).
[163] Audrey Chapman, ‘A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights’ (1996) 18 Human Rights Quarterly 23, 24. Chapman argues that the covenants are not indivisible in practice, as the rights under the ICCPR are given precedence and treated as more significant than those embraced as economic and cultural rights, which are neglected: at 26. See Vienna Declaration and Programme of Action: Report of the World Conference on Human Rights, UN Doc A/CONF.157/23 (1993); The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN ESCOR, 43rd sess, Annex, UN Doc E/CN.4/1987/17.
[164] Articles 3, 13, 55.
[165] GA Res 217A, UN GAOR, 3rd sess, 183rd plen mtg, 71, UN Doc A/810 (1948), art 25. Even though the Declaration does not have the status of a treaty, it may have attained the status of customary international law; in any event, its obligations have largely been incorporated in conventions, as concrete treaty undertakings.
[166] Audrey Chapman, ‘Conceptualizing the Right to Health: A Violations Approach’ (1998) 65 Tennessee Law Review 389, 392. With respect to the content of the right to health, see generally Steven Jamar, ‘The International Human Right to Health’ (1994) 22 Southern University Law Review 1; Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156.
[168] See also Oscapella and Elliott, above n 152, A32.
[170] Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights — General Comment No 14, [7], UN Doc E/C.12/2000/4 (2000) (‘General Comment 14’). Jamar, above n 166, 27 notes that the examples in art 12(2) ‘provide guidance ... [on the] breadth of the duty’.
[171] General Comment 14, above n 170, [9]. At [33], the General Comment elaborates: states are obliged to respect, promote, fulfil, protect and provide the right.
[172] Chapman, ‘Conceptualizing the Right to Health’, above n 166, 391.
[173] General Comment 14, above n 170, [16]. In fact, the Council considers the obligations to ‘take measures to prevent, treat and control epidemic and endemic diseases’ to be of similar significance: at [44].
[174] Ibid [9].
[175] Ibid [51]. See also ‘The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ (1998) 20 Human Rights Quarterly 691, 691: more than 30 human rights experts met in Maastricht in 1997 ‘to elaborate on the Limburg Principles [on the implementation of the ICESCR] as regards the nature and scope of violations of economic, social and cultural rights and appropriate responses and remedies.’ See also The Limburg Principles, above n 163, Annex; Chapman, ‘Conceptualizing the Right to Health’, above n 166, 411.
[176] Chapman, ‘Conceptualizing the Right to Health’, above n 166, 411.
[177] Ibid 402: Chapman discusses public policies which encourage tobacco use and alcohol consumption.
[178] General Comment 14, above n 170, [11].
[179] Ibid [53]; ‘The Maastricht Guidelines’, above n 175, 694; The Limburg Principles, above n 163, Annex. See also Jamar, above n 166, 23: ‘There is a sense of a greater role for discretion by the states in the rights under the Covenant on Economic, Social and Cultural Rights than under the Covenant on Civil and Political Rights.’
[180] The Right to Life (Art 6): 30/07/82 — CCPR General Comment 6, [1], [5], UN Doc HRI/GEN/1/Rev.1, 6 (1982) (1982).
[181] Sofia Gruskin, ‘Geneva98: Law, Ethics, and Human Rights’ (1999) 4 Canadian HIV/AIDS Policy and Law Newsletter 78, 79. Gruskin notes that governments committed themselves at conferences (the Cairo International Conference on Population and Development and the Beijing Fourth World Conference on Women) to protect individuals’ human rights in the HIV/AIDS context, based on treaty obligations.
[182] Ibid.
[183] Oscapella and Elliott, above n 152, A32–A33.
[185] Opened for signature 19 December 1966, 999 UNTS 302 (entered into force 23 March 1976).
[186] See Chapman, ‘A “Violations Approach”’, above n 163, 25–9.
[187] Ibid 27.
[188] Oscapella and Elliott, above n 152, A33.
[189] Gruskin, above n 181, 80–1. Oscapella and Elliott, above n 152, A11 note:
If the Canadian government truly had the political will to redefine drug use as a health issue rather than a criminal law issue, creative use could be made of provisions in the existing international drug conventions to permit a less punitive approach and to adopt laws and policies based on a harm-reduction model.
Moreover, this would give effect to states’ specific obligations under the relevant human rights treaties.
[190] Oscapella and Elliott, above n 152, A4–A5.
[191] See ibid A4: the authors comment that, in the Canadian context, some of the provisions in these drug-related treaties — or their application — may contradict the state’s obligations under international human rights treaties. This is also the case with respect to Australia.
[192] See, eg, PDAC above n 28, 29; DCPC, above n 2, 18–19.
[194] Single Convention on Narcotic Drugs, opened for signature 30 March 1961, 520 UNTS 204 (entered into force 13 December 1964) (ratified by Australia 1 December 1967; entered into force for Australia 31 December 1967) (‘Single Convention’); Convention on Psychotropic Substances, opened for signature 21 February 1971, 1019 UNTS 175 (entered into force 16 August 1976) (ratified by Australia 19 May 1982; entered into force for Australia 17 August 1982) (‘1971 Convention’); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature 20 December 1988, 28 ILM 493 (entered into force 11 November 1990) (ratified by Australia 16 November 1992; entered into force for Australia 14 February 1993) (‘1988 Convention’). See also Protocol Amending the Single Convention on Narcotic Drugs, opened for signature 25 March 1972, 976 UNTS 3 (entered into force 8 August 1975) (ratified by Australia 22 November 1972) (‘1972 Protocol’).
[195] See PDAC, above n 28, 29; Wodak and Owens, above n 29, 17.
[196] See PDAC, above n 28, 29; Wodak and Owens, above n 29, 17.
[197] See PDAC, above n 28, 29.
[198] Ibid 29–30. Some commentators assert that the conventions require a strict prohibitionist policy; any departure is said to be a ‘misinterpretation’, dependent on ‘ploys’ (such as focusing on the title of the 1988 Convention as a means by which to restrict its application): see, eg, Athol Moffitt, John Malouf and Craig Thompson, Drug Precipice (1998) 136.
[199] This is the logical starting point employed in the extremely valuable article prepared by the Swiss Institute of Comparative Law: Bertil Cottier and Martin Sychold, Use of Narcotic Drugs in Public Injection Rooms under Public International Law (2000) Drugtext <www.drugtext.org/
articles/useroomavis.htm> at 29 September 2001 (copy on file with author).
[200] Ibid.
[201] Glenn Gilmour, ‘The International Covenants “Prohibiting” Drug Activities’, Paper submitted to Canada’s Senate Standing Committee on Legal and Constitutional Affairs, 14 December 1995. See also Thomas Kerr, above n 6, 57.
[202] With respect to the 1971 Convention, similar — albeit not identical — provisions also highlight rehabilitation, treatment and prevention: art 20(1). Even in the criminalisation context, art 36(1)(b) of the Single Convention states:
[W]hen abusers of drugs have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitiation and social reintegration in conformity with paragraph 1 of article 38.
The 1971 Convention has a similar provision in art 22(1)(b). The 1988 Convention states in art 3(4)(c): ‘in appropriate cases of a minor nature, the Parties may provide, as alternatives to conviction or punishment, measures such as education, rehabilitation or social reintegration, as well as, when the offender is a drug abuser, treatment and aftercare.’
[203] Cottier and Sychold, above n 199.
[204] Ibid. Although the Single Convention and the 1971 Convention require offenders to be subjected to such measures instead of prosecution, the 1988 Convention’s provisions are permissive as to what measures states’ parties may take: ibid.
[205] Ibid [5].
[206] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, art 31(3)(b) (entered into force 27 January 1980).
[207] Single Convention, opened for signature 30 March 1961, 520 UNTS 204, art 36(1)(a) (entered into force 13 December 1964). See Gilmour, above n 201. See also Gatto, above n 37, 1: while ‘trafficking prohibitions are strict, leaving little room for interpretation, drug use provisions permit greater room for discretion, giving signatories the right to “take some form of action” to deter use, reflecting “differing national attitudes”’. Gatto notes that the 1972 Protocol did not require the establishment of criminal penalties with respect to drug use. In a rather provocative comment, appropriate to the writings of a long-forgotten era with a pre-Mabo view of ‘legitimate’ systems of law, Moffitt, Malouf and Thompson, above n 198, 197 comment on the proviso concerning ‘the basic concepts’ and ‘of the legal system’ (emphasis added): ‘The [1988] Convention was agreed to by over 100 nations, many of them third world countries, some with legal systems ... which are primitive compared with the system of law of Western nations.’ They comment on ‘the infiltration into this country of Asian-style organised crime, with new practices and codes that are proving most difficult for our law enforcement agencies and culture to cope with. We need to look no further than Cabramatta’: at 134.
[208] Article 4(c).
[209] Cottier and Sychold, above n 199.
[210] Ibid [10].
[211] Gilmour, above n 201. The Vancouver pilot proposal, like those in Australian jurisdictions, emphasises the trial nature of the supervised injecting facilities, clearly qualifying as an ‘experiment’ under the conventions; this is especially evident having regard to the ways in which they are to be evaluated: see Thomas Kerr, above n 6, 60–1. Moffitt, Malouf and Thompson, above n 198, 137 criticise, in general terms, ‘the permissive policy lobby’ who ‘manipulate the medical purposes exception of the Conventions’.
[212] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, art 32 (entered into force 27 January 1980) (to avoid manifestly absurd results).
[213] Cotier and Sychold, above n 199. Cottier and Sychold further note that possession of drugs for personal use is at least permissible for medical purposes under art 4(c) of the Single Convention.
[214] Cottier and Sychold, above n 199.
[215] Article 9. It should again be noted that this treaty ‘responded to the diversification and expansion of the spectrum of drugs of abuse and introduced controls over a number of synthetic drugs according to their abuse potential ... and their therapeutic value’: Treaties Ratified by Australia, Australian Institute of Criminology <http://www.aic.gov.au/research/drugs/context/
international.html> at 21 September 2001 (copy on file with author). Cottier and Sychold (ibid) suggest that, if the Swiss facilities tolerated possession and use of sch 1 drugs, they would be in breach of this article: ‘parties retain the power to permit possession and use of most psychotropic substances in ... [supervised injecting facilities], but must prohibit possession and use of Schedule 1 psychotropic substances, ... as these facilities do not meet the strict standards set by Art 7.’
[216] Cottier and Sychold, above n 199. Article 3 states:
Each party shall adopt such measures as may be necessary to establish as criminal offence ... when committed intentionally: (a)(i) The production, manufacture, ... sale ... ; (iii) The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in (i) above.
Article 14(4) states: ‘The Parties shall adopt appropriate measures aimed at eliminating or reducing illicit demand’.
[217] See Canadian HIV/AIDS Legal Network, Injection Drug Use and HIV/AIDS — Legal and Ethical Issues, above n 41, 25.
[218] Cottier and Sychold, above n 199. The Canadian HIV/AIDS Legal Network (ibid 25) agrees: ‘Canada ... retains the freedom to develop its own drug laws (with respect to at least some matters, such as possession for personal consumption) in a less punitive way than might be called for by a harsher interpretation of the ... conventions.’
[219] Chris Ward, ‘HIV/AIDS and Legal Issues in Australia’ (2000) 5 Canadian HIV/AIDS Policy and Law Newsletter 70, 73–4.
[220] Cottier and Sychold, above n 199.
[221] Ibid.
[222] Quoted in NSW Joint Select Committee, above n 86, 146.
[223] Role of INCB, International Narcotics Control Board <http://www.incb.org/e/role/menu.htm> at 21 September 2001 (copy on file with author). Its 13 members are elected by the Economic and Social Council of the United Nations (10 elected from a list of government nominees; three elected from a list of World Health Organization nominees).
[224] Ibid.
[225] Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 1 March 2000, 422–3 (Kerrie Tucker).
[226] Role of INCB, above n 223.
[227] Ibid.
[228] Ibid.
[229] Single Convention, opened for signature 30 March 1961, 520 UNTS 204, art 14 (entered into force 13 December 1964); 1971 Convention, opened for signature 21 February 1971, 1019 UNTS 175, art 19 (entered into force 16 August 1976); 1988 Convention, opened for signature 20 December 1988, 28 ILM 493, art 22 (entered into force 11 November 1990).
[231] INCB, Annual Report 1999 (1999) [176].
[232] Ibid.
[233] Ibid [177].
[234] Ibid [500]. See INCB, Report of the INCB for 1999, Press Release, No 5 (23 February 2000) <http://www.incb.org/e/press/2000/press_release_2000-02-23_5.html> at 21 September 2001 (copy on file with author).
[235] INCB, Annual Report 2000 (2000) [177].
[236] See above Part III(A).
[237] Ward, above n 219, 73. These proposals are considered in below Part VI.
[238] The three State and Territory leaders supporting the introduction of supervised injecting facilities were Steve Bracks (Vic), Bob Carr (NSW) and Kate Carnell (ACT).
[239] New South Wales, Parliamentary Debates, Legislative Council, 21 October 1999, 1773 (John Della Bosca).
[240] Ibid.
[241] Ibid. See NSW Joint Select Committee, above n 86, 146, where Professor Carney notes that, if the trial is characterised (as he believes it can be) as serving the objectives of ‘treatment, education, after care, rehabilitation or social re-integration ... it being a controlled and evaluated trial, [it] would in [his] view unquestionably be consistent with the international treaties’.
[242] New South Wales, Parliamentary Debates, Legislative Council, 9 September 1999, 193 (Jeff Shaw, Attorney-General).
[243] Ibid. See NSW Drug Summit 1999 — Communique, above n 51. See also Australian Capital Territory, Parliamentary Debates, Legislative Council, 7 December 1999, 3800–3 (Jon Stanhope).
[244] New South Wales, Parliamentary Debates, Legislative Council, 9 September 1999, 193–4 (Jeff Shaw, Attorney-General).
[245] See New South Wales, Parliamentary Debates, Legislative Council, 18 November 1999, 3270 (Malcolm Kerr), 9 September 1999, 193–4 (Frederick Nile); Moffitt, Malouf and Thompson, above n 198, 131–41.
[246] New South Wales, Parliamentary Debates, Legislative Council, 18 November 1999, 3270 (Malcolm Kerr), 9 September 1999, 193–4 (Frederick Nile).
[247] New South Wales, Parliamentary Debates, Legislative Council, 9 September 1999, 194 (Jeff Shaw, Attorney-General).
[248] ‘Injecting Facilities Trial Framework for Service Agreements’, reproduced in Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2151.
[249] Ibid 2153. The impact of the facilities on the community (the amount of litter and the extent of trafficking) was also to be documented.
[250] Ibid 2153–4.
[251] INCB, Annual Report 2000, above n 235, [522].
[252] Ibid [525].
[253] Bill Stronach, ‘World Drug Body Ignores Injecting Objectives’, The Australian (Sydney), 13 July 2000, 10.
[254] Paola Totaro and Kerry Taylor, ‘UN Fails to Veto Needle Rooms’, The Age (Melbourne), 11 July 2000, 5. See also Crawford, above n 7.
[255] Totaro and Taylor, above n 254; Crawford, above n 7.
[256] Totaro and Taylor, above n 254. John Della Bosca comments on discussions he had with members of the INCB:
[T]hey made it clear that they were very impressed with the overall response of the New South Wales and Commonwealth governments in regard to drugs. The best I can say is that they understood the position that the medically supervised injecting room trial had within a comprehensive drug response framework.
See New South Wales, Parliamentary Debates, Legislative Council, 2 May 2000, 4913 (John Della Bosca, Special Minister of State).
[257] INCB, Annual Report 2000, above n 235. See also Brett Foley and Mary Ann Toy, ‘UN Hits Heroin Room Attempts’, The Age (Melbourne), 21 February 2001, 2.
[258] Foley and Toy, above n 257, citing INCB, Annual Report 2000, above n 235.
[259] Opened for signature 23 May 1969, 1155 UNTS 331, art 54 (entered into force 27 January 1980).
[260] Moffitt, Malouf and Thompson, above n 198, 136.
[261] See NSW Joint Select Committee, above n 86, 146.
[262] Ward, above n 219, 74. Facilities are one of the many harm reduction services provided in Europe, including needle exchanges, methadone programs, heroin maintenance or prescription trials, peer education, contact cafés, shelters and street outreach programs: Thomas Kerr, above n 6, 8. The INCB criticises several European states for devoting what it perceives to be inordinate attention to controversial (and, it believes, illegal) harm reduction strategies by comparison with demand reduction initiatives: INCB, Annual Report 2000, above n 235, [443]–[446].
[263] For detailed descriptions of some of these facilities, see Thomas Kerr, above n 6, 68–74; NSW Joint Select Committee, above n 86, ch 3.
[264] Dolan et al, above n 14, 338.
[265] Micallef, above n 3; ADCA, above n 4, 188.
[266] Ward, above n 219, 74, citing W de Jong and U Weber, ‘The Professional Acceptance of Drug Use: A Closer Look at Drug Consumption in the Netherlands, Germany and Switzerland’ (1999) 10 International Journal of Drug Policy 99, 100. There are presently 17 centres across Switzerland: Dolan et al, above n 14, 339.
[267] VDPEC, Drugs: Responding to the Issues, above n 4, 15. The VDPEC notes that the ‘needle park’ was rather well known internationally: ‘It was estimated then that there were 3000 heroin users in the Zurich region alone at this time. In this open drug scene, the condition of drug users deteriorated rapidly and the mortality rate tripled within five years.’
[268] Ibid: at one point, as a result of public pressure, parks were closed down as they had become public injecting places. Abstinence was pursued as a policy objective, but was later reversed.
[269] Micallef, above n 3, citing Kate Dolan, ‘The Swiss Experiment’ [1996–97] Connexions 10.
[271] Ibid.
[272] VDPEC, Drugs: Responding to the Issues, above n 4, 12. Maurice Frank, BYO Heroin, The Lindesmith Center — Drug Policy Foundation (2000) <http://www.motherjones.com/
news_wire/byo_heroin.html> at 21 September 2001 (copy on file with author) notes: ‘AIDS changes everything. ... Soaring HIV rates, caused largely by shared needles, forced [Frankfurt] in the early 90s to begin radically overhauling its drug policy.’
[273] VDPEC, Drugs: Responding to the Issues, above n 4, 13.
[274] Frank, above n 272. See also INCB, Annual Report 2000, above n 235, [460]: the INCB ‘maintains its principal objection to the establishment and operation of such facilities’.
[275] Dolan et al, above n 14, 340. According to Frank, above n 272, the police supported the introduction of facilities ‘from the beginning’.
[277] Dolan et al, above n 14, 339–40 (citation omitted).
[278] VDPEC, Drugs: Responding to the Issues, above n 4, 17. VDPEC, Drugs: Responding to the Issues, above n 4, 17 also notes that drug possession in injecting rooms is tolerated if they are approved by the police, local mayor and public prosecutor: see Dolan et al, above n 14, 339. See also Gatto, above n 37, 4.
[279] VDPEC, Drugs: Responding to the Issues, above n 4, 17.
[280] Dolan et al, above n 14, 338.
[281] Ibid 338–9.
[282] Ibid.
[283] Dolan et al, above n 14, 339. See ABC Radio National, ‘Safe Injecting Rooms’, The Health Report, 3 August 1998 <http://www.abc.net.au/rn/talks/8.30/helthrpt/stories/s11569.htm> at 21 September 2001 (copy on file with author), describing the centre, with its café, room to play table soccer, shower and washing machine. Anne Marxer, manager of the Berne centre (which contains a separate room for supervised injecting) notes: ‘this should be a room where they feel at ease, and where they know or get to know that there is something else than the stress in the street’ — rehabilitation is an important objective.
[284] Dolan et al, above n 14, 339. See ABC Radio National, above n 283.
[285] See ABC Radio National, above n 283.
[286] Dolan et al, above n 14, 339. Dolan et al note that clients may assist one another. See also ABC Radio National, above n 283.
[287] Dolan et al, above n 14, 339. See ABC Radio National, above n 283.
[288] Dolan et al, above n 14, 339. See also Micallef, above n 3, citing Dolan, above n 269.
[289] ABC Radio National, above n 283.
[291] Dolan et al, above n 14, 340.
[292] Ibid. See also Frank, above n 272.
[293] Dolan et al, above n 14, 340.
[294] Ibid: on the other hand, the staff give advice on safer injecting procedures and means by which to reduce harm.
[295] Dolan et al note that some women inject in the groin — which they are able to do in private: ibid.
[296] Ibid.
[297] ADCA, above n 4, 188. Some centres are limited to local residents: ibid 339.
[299] Ibid 188–9. See also Thomas Kerr, above n 6, 31: in 1996, 700 individuals used the facility near Rotterdam Central Station.
[300] Dolan et al, above n 14, 339.
[301] Ibid. See ABC Radio National, above n 283, commenting on the prevalence of abscesses treated at the centre.
[302] ABC Radio National, above n 283.
[303] Dolan, above n 269, cited in Micallef, above n 3. Dolan et al, above n 14, note, however, that this can be difficult to prove emphatically. They comment at 340–1 that there are few thorough impact evaluation studies of facilities: while deaths due to overdoses have declined in Switzerland and some German jurisdictions, it is difficult to identify the degree to which this reduction is specifically due to the presence of centres, as opposed to other measures, such as the availability of alternative treatments. See ABC Radio National, above n 283: Anne Marxer notes that ‘in 12 years we have this place I think in the whole of Switzerland nobody died, never, ever.’ Dr Alex Wodak observes that Australian overdose deaths doubled, whereas Swiss rates were reduced by 50 per cent, during the six years to 1999. He argues that this is linked to the existence of injecting facilities and heroin prescription schemes, as well as large government expenditures on law enforcement and health-related programs. He also notes that Switzerland spends 10 times more than Australia on such interventions: Alex Wodak, Transcript of Proceedings, NSW Drug Summit 1999, 20 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author).
[304] DCPC, above n 2, 9. Dolan et al, above n 14, 339 note that they ‘are well tolerated in Swiss communities, and police work closely with the staff’.
[306] Ward, above n 219, 74, citing a survey in de Jong and Weber, above n 266, 100. See also Thomas Kerr, above n 6, 35.
[307] INCB, Annual Report 2000, above n 235, [501].
[308] Ibid [502]–[504].
[309] Frank, above n 272: ‘Once their names are called, each receives a steel tray containing a new syringe, cotton pads, a sterilized spoon, and a packet of distilled water — everything needed to prepare and inject heroin or cocaine. This they do in the next room ...’
[310] Ibid, quoting Juergen Weimer, a city drugs official. It has also been stated that the number of public drug-users in Frankfurt declined from 800 individuals in 1991–92 to 150 in 1993; complaints also decreased significantly: DCPC, above n 2, 4.
[311] Phillip Coffin, Research Brief: Safe Injecting Rooms, The Lindesmith Center — Drug Policy Foundation <http://www.soros.org/lindesmith/cites_sources/brief17.html> at 1 June 2000 (copy on file with author).
[312] Frank, above n 272. Similar statistics are cited by Tanya Plibersek, Member of the House of Representatives, Transcript of Proceedings, NSW Drug Summit 1999, 20 May 1999 <http://
drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author): HIV infection rates had fallen among injecting drug-users, from 70–80 per cent to 18 per cent. Ward, above n 219, 74 states that no one ‘has ever had a fatal overdose on the premises’ of a German facility.
According to autopsy results, HIV among drug users declined from 63–65 percent in 1985 to 12–15 percent in 1994. These results are attributed to Frankfurt’s integrated harm reduction strategy, which includes [supervised injecting facilities] and a variety of other low-threshold drug services.
Dolan et al, above n 14, 341 state that ‘[w]hile there is no direct epidemiological evidence to show reduced incidence of blood-borne virus (BBV) transmission among clients, observed reductions in needle sharing and increased condom use reported by clients indicate a reduction in BBV risk behaviours’.
[314] VDPEC, Drugs: Responding to the Issues, above n 4, 17.
[315] INCB, Annual Report 1999, above n 231, [176]–[177].
[316] ADCA, above n 4, 188. See also Thomas Kerr, above n 6, 28. Kerr notes that some European facilities organise days in which they can be visited by the local community: at 48.
[317] The INCB expressed ‘regret’ over Luxembourg’s decision to consider the introduction of facilities: INCB, Annual Report 1999, above n 231, [451]. See also INCB, Annual Report 2000, above n 235, [499].
[318] INCB, Annual Report 2000, above n 235, [499].
[319] Thomas Kerr, above n 6, 3.
[320] Ibid 13.
[321] J Vince Cain, Report of the Task Force into Illicit Narcotic Overdose Deaths in British Columbia (1994).
[322] Canadian HIV/AIDS Legal Network, Injection Drug Use and HIV/AIDS — Legal and Ethical Issues, above n 41, 9. It is estimated that injecting drug-users account for 38 per cent of British Columbia’s new HIV infections, with about 400 new seroconversions in 2000: Thomas Kerr, above n 6, 14. Kerr describes ‘epidemic rates’ of tuberculosis, syphilis and hepatitis A, B and C (as well as other illnesses associated with injection drug use, such as abscesses). See also Cain, above n 321, 15.
[323] In its pilot proposal, Vancouver’s Harm Reduction Action Society notes its willingness to operate the recommended facilities: Thomas Kerr, above n 6, 62. See also Tom Olsen, ‘Secure Injection Sites Sought for Addicts: Hundreds of People Would Benefit, Says Calgary Authority’, The Edmonton Journal (Edmonton, Canada), 30 August 2001, B5, with respect to the comments of the Co-ordinator of Calgary Health Region’s Safeworks Program in support of injecting facilities.
[324] Canadian HIV/AIDS Legal Network, Injection Drug Use and HIV/AIDS — Legal and Ethical Issues, above n 41, app. See also Riley, above n 30; Oscapella and Elliott, above n 152.
[326] Thomas Kerr, above n 6, 5, calling for an 18-month trial at two sites. See also Thomas Kerr and Anita Palepu, ‘Safe Injection Facilities in Canada: Is It Time?’ (2001) 165 Canadian Medical Association Journal 436; Evan Wood et al, ‘Unsafe Injection Practices in a Cohort of Injection Drug Users in Vancouver: Could Safer Injecting Rooms Help?’ (2001) 165 Canadian Medical Association Journal 405.
[328] Editorial, ‘Harm Reduction’, above n 12. With respect to the legal duty to trial facilities, see Craig Jones, ‘Fixing to Sue: Is There a Legal Duty to Establish Safe Injection Facilities in British Columbia?’ (2002) 36 University of British Columbia Law Review (forthcoming).
[329] Frances Bula, ‘Safe-Injection Site a Go if BC Wants It’, Vancouver Sun (Vancouver, Canada), 15 November 2001 <http://www.canada.com/vancouver/vancouversun/story.asp?id={63F58F20
-7407-4666-9C2F-D68084226265}> at 16 November 2001 (copy on file with author). The Minister praised Vancouver Mayor Philip Owen’s efforts and emphasised that this issue is one of harm reduction rather than law enforcement.
[330] Adrian Rollins, Chloe Saltau and Meaghan Shaw, ‘State Not Set Up for Heroin Rooms: Lib’, The Age (Melbourne), 18 July 2000, 3.
[331] Ward, above n 219, 75. Ward suggests that a human rights analysis be used to invigorate initiatives, to measure the extent to which Australia complies with international guidelines on HIV/AIDS and human rights.
[332] Oscapella and Elliott, above n 152, A12–A13: the Canadian HIV/AIDS Legal Network notes that in Canada exchanges are subject to potential criminal liability because they have been implemented alongside prohibitive, abstinence-related drug policies — therefore, a solid legislative basis should underlie any effective harm reduction scheme.
[333] DCPC, above n 2, 11. See VDPEC, Drugs: Responding to the Issues, above n 4, 40.
[334] DCPC, above n 2, 11. See VDPEC, Drugs: Responding to the Issues, above n 4, 40.
[335] Oscapella and Elliott, above n 152, A13. Examples of administrative arrangements, under which the police follow a policy not to enter needle exchanges except in extreme emergencies, are also noted in Thomas Kerr, above n 6, 58.
[336] See VDPEC, Drugs: Responding to the Issues, above n 4, 41: a legislative approach with a ‘relatively simple’ instrument is recommended, which ‘should authorise the possession by a drug using person of no more than a small quantity of a drug of dependence for the purpose of self-administration in an authorised injecting facility.’
[337] See ibid 40, 51.
[338] NSW Royal Commission, above n 66, 222. Dolan et al, above n 14, 342 note that illegal shooting galleries have operated in Kings Cross sex shops since the early 1990s, costing $6 for 10 minutes, and have been used for sex work or private injecting or both.
[339] NSW Joint Select Committee, above n 86, 157. See also Dolan et al, above n 14, 342.
[340] Dolan et al, above n 14, 342. See Tanya Plibersek, Member of the House of Representatives, Transcript of Proceedings, NSW Drug Summit 1999, 20 May 1999 <http://drugsummit.
socialchange.net.au> at 21 September 2001 (copy on file with author). See also Clover Moore, Member of the NSW Legislative Assembly, Transcript of Proceedings, NSW Drug Summit 1999, 18 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author); Rachel Morris, ‘PM Blocks Heroin Law for Gallery’, The Daily Telegraph (Sydney), 6 April 2001, 5.
[341] NSW Drug Summit 1999 — Communique, above n 51, 17.
[342] Government Response to the Drug Summit — July 1999, NSW Drug Summit 1999 <http://
drugsummit.socialchange.net.
au/action_plan/index.html> at 27 October 2001 (copy on file with author). See also ADCA, above n 4.
[343] Dolan et al, above n 14, 342. Dolan et al note that the University of New South Wales had offered to operate the facility, but withdrew its offer to do so because it was also involved in evaluating it. The federal government stated that the university should withdraw its proposal to evaluate the trial, as federal funds were not to be spent on this service.
[344] Dolan et al, above n 14, 342.
[345] Powell, ‘Addiction in a Safer Vein’, above n 93. See also Dolan et al, above n 14, 342.
[346] Sian Powell, ‘First Addicts Shoot Up in Centre’, The Australian (Sydney), 8 May 2001, 5.
[347] Drug Summit Legislative Response Act 1999 (NSW) sch 1, ss 36A, 36B.
[348] Drug Summit Legislative Response Act 1999 (NSW) sch 1, s 36F. Even though the Kings Cross facility is now operational, regulations governing what occurs inside the facility have not yet been passed; this has been the subject of controversy, with the government stating that ‘there has been no need for the regulations, because we’re very happy with the way the Uniting Church is running the centre’: John Della Bosca, quoted in Nathan Vass, ‘Drug Injecting Room “Not Regulated”’, The Sunday Telegraph (Sydney), 13 May 2001, 5.
[349] Drug Summit Legislative Response Act 1999 (NSW) sch 1, s 36S.
[350] Drug Summit Legislative Response Act 1999 (NSW) sch 1, s 36L.
[351] Supervised Injecting Place Trial Act 1999 (ACT). See ADCA, above n 4, 189.
[352] Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 10 December 1998, 3439 (Michael Moore, Minister for Health and Community Care).
[353] Kate Carnell, Chief Minister, Budget Impasses Resolved, Press Release (11 July 2000). See also Benjamin Haslem, ‘Carnell Ready to Call Snap Poll over Deadlocked Budget’, The Australian (Sydney), 3 July 2000, 10.
[354] Carnell, above n 353. See Royal Australasian College of Physicians, above n 48, 19, criticising ‘the way in which policy in relation to illicit drugs is often based on political considerations as opposed to a scientific basis’.
[356] ACT Branch, Australian Labor Party, ACT Labor Policy: ACT Labor’s Plan for Reducing Alcohol and Other Drug Related Harms <http://www.act.alp.org.au/policy/pdpdrugs101001.
html> at 12 November 2001 (copy on file with author).
[357] Section 4. See Dolan et al, above n 14, 343.
[358] Supervised Injecting Place Trial Act 1999 (ACT) s 5(2)(a).
[359] Supervised Injecting Place Trial Act 1999 (ACT) s 9(2)(e). See also Dolan et al, above n 14, 343.
[360] Supervised Injecting Place Trial Act 1999 (ACT) s 5(2)(b).
[361] Supervised Injecting Place Trial Act 1999 (ACT) s 7.
[362] Supervised Injecting Place Trial Act 1999 (ACT) s 9.
[363] Supervised Injecting Place Trial Act 1999 (ACT) s 17.
[364] Supervised Injecting Place Trial Act 1999 (ACT) ss 18–30.
[365] Supervised Injecting Place Trial Act 1999 (ACT) s 30.
[366] Supervised Injecting Place Trial Act 1999 (ACT) s 31.
[367] The five communities were Greater Dandenong, Maribyrnong, Melbourne, Port Phillip and Yarra: Gabrielle Costa, ‘Agreements Key to Drug Rooms’, The Age (Melbourne), 7 June 2000, 7. The problem has spread to rural Victoria, where it has a ‘frightening grip on young country people’; however, the Victorian Health Minister, John Thwaites, stated that facilities were not planned for rural Victoria, as it was more likely that country users would inject at home and the proposal was targeted to respond to ‘chaotic street use’: Misha Ketchell and Larissa Dubecki, ‘Bush Drug Spread Keeps Low Profile’, The Age (Melbourne), 10 July 2000, 2. See also John Silvester, ‘Police Plan Blitz on Rural Heroin’, The Age (Melbourne), 10 July 2000, 1–2; Elder and Heinrichs, above n 15; David Adams, ‘Report Reveals Heroin Problems in Geelong’, The Age (Melbourne), 15 November 2000, 4.
[368] Eg, whether they should be stand-alone facilities or part of primary health care centres. This is discussed in DCPC, above n 2, 14, which favoured the latter. See also City of Port Phillip, above n 55, 18.
[369] In his Second Reading Speech, the Minister referred to the Penington Report (VDPEC, Drugs: Responding to the Issues, above n 4) released in April 2000: Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2144 (John Thwaites, Minister for Health). See also VDPEC, Drugs: Responding to the Issues, above n 4, 34.
[370] Dolan et al, above n 14, 342.
[371] Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill 2000 (Vic) s 1.
[372] Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2144 (John Thwaites, Minister for Health).
[373] Ibid 2145.
[374] VDPEC, Drugs: Responding to the Issues, above n 4, 34–5.
[375] Micallef, above n 3 (emphasis in original).
[378] City of Port Phillip, above n 55, 7.
[379] Ibid 13. The report notes that there are differences in levels of support for different types of strategies, explained in part by ‘a lack of understanding about the application of different harm reduction strategies available and/or a lack of understanding about the nature of drug addiction’: at 14. The report also notes (at viii) that:
The Committee has concluded that, while contentious, the proposed injecting trial is important. ... It is mindful that a community survey showed that nearly two-thirds of respondents in the five municipalities nominated for injecting facilities support the trial, providing a suitable location can be identified.
[380] Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill 2000 (Vic) s 5.
[381] Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill 2000 (Vic) s 5.
[382] ‘Injecting Facilities Trial Framework for Service Agreements’, reproduced in Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2153–4. See VDPEC, Drugs: Responding to the Issues, above n 4, 37.
[383] ‘Injecting Facilities Trial Framework for Service Agreements’, reproduced in Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2156. See VDPEC, Drugs: Responding to the Issues, above n 4, 38.
[384] ‘Injecting Facilities Trial Framework for Service Agreements’, reproduced in Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2156. See VDPEC, Drugs: Responding to the Issues, above n 4, 38. The ADCA, above n 4, 190 notes (citations omitted) that
there is a need for these research trials to be conducted in a rational manner with a commitment by all parties to accept the evidence produced. It is important that evaluations of supervised injecting places provide mechanisms for monitoring and evaluating the short-term and long-term effects of the facilities. ... The New South Wales, Victorian and ACT Governments have undertaken extensive research and consultation programs to underpin their program development.
[385] ‘Injecting Facilities Trial Framework for Service Agreements’, reproduced in Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2157. VDPEC, Drugs: Responding to the Issues, above n 4, 43 states that facilities must be proximate to where injecting occurs, but unobtrusive to the rest of the community, and argues that ‘European experience with injecting facilities, and local experience with needle and syringe programs and drug treatment services, indicates that this is possible’. The VDPEC further notes that injecting facilities need not be located on a main street and that public signage is not required — informal communication among the drug-using network would let users know where the facilities could be found. Similarly, the Committee states that facilities should not be near a school, kindergarten or residential area and that there should be an active police presence: at 43–4. See also the Minister’s speech in Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2148 (John Thwaites, Minister for Health).
[386] VDPEC, Drugs: Responding to the Issues, above n 4, 38.
[387] Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2148 (John Thwaites, Minister for Health). See Costa, above n 367, 7. A facility was to include a waiting area, reception facility, injecting area and interview and counselling rooms. Internal operating rules included management arrangements for people entering and leaving the facility, rules ensuring that no one could interfere with someone in the process of injecting, and procedures outlining how to respond to disruptive behaviour, criteria for excluding users, and security arrangements: ‘Injecting Facilities Trial Framework for Service Agreements’, reproduced in Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2156.
[388] Even in the Legislative Assembly, the Bill was rejected, as one Independent member whose vote was required for the law’s enactment voted against its passage. See Editorial, ‘Injecting Room Fears and Reality’, The Age (Melbourne), 16 June 2000, 14, where the newspaper urged the State opposition to support the trial.
[389] Drug Summit Legislative Response Act 1999 (NSW) sch 1, s 36N.
[390] Drug Summit Legislative Response Act 1999 (NSW) sch 1, s 36O.
[391] Supervised Injecting Place Trial Act 1999 (ACT) s 11.
[392] Supervised Injecting Place Trial Act 1999 (ACT) s 13. Dolan et al, above n 14, 343 note that, while this legal framework maintains existing offences of possession and use of certain drugs, the directives not to prosecute for possessing or using prohibited drugs at the facility are intended to preserve the integrity — and objectives — of the scheme, by not jeopardising attendance at the centre.
[393] Supervised Injecting Place Trial Act 1999 (ACT) s 14.
[394] Supervised Injecting Place Trial Act 1999 (ACT) s 14.
[395] Supervised Injecting Place Trial Act 1999 (ACT) s 14.
[396] Supervised Injecting Place Trial Act 1999 (ACT) s 15.
[397] Supervised Injecting Place Trial Act 1999 (ACT) s 15.
[398] Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill 2000 (Vic) s 4.
[399] Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill 2000 (Vic) s 6.
[400] Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill 2000 (Vic) s 6.
[401] Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill 2000 (Vic) s 6.
[402] Drug Summit Legislative Response Act 1999 (NSW) sch 1, s 36N.
[403] Professor David Dixon, Faculty of Law, the University of New South Wales, cited in Cynthia Banham, ‘We’ll Wait and See, Says Kings Cross Community’, The Sydney Morning Herald (Sydney), 29 March 2001, 4. Superintendent Alan Baines, of the Kings Cross Police, stated that ‘the exercise of ... discretion [not to arrest] will be in relation to the people who are the users going to the injecting centre, or give an indication that they are going to the injecting room’, as opposed to those who are dealing the drugs: ABC Television, ‘Chamber of Commerce Rejects Supervised Injecting Room’, The 7:30 Report, 23 March 2000 <http://www.abc.net.au/7:30/
stories/s113017.htm> at 21 September 2001 (copy on file with author). See Overington, ‘The Cross at the Crossroads’, above n 146.
[405] Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2148 (John Thwaites, Minister for Health).
[406] Stephen Couchi, ‘Fear Users Not Free from Arrest’, The Age (Melbourne), 7 June 2000, 7.
[407] Ibid. This problem is noted in VDPEC, Drugs: Responding to the Issues, above n 4, 41, which suggests that the use of drugs outside facilities would still be an offence, as would trafficking, in or outside facilities and that in ‘such cases, police would make an assessment about the person’s intention, based on factors such as their actions and demeanour, and how far they were from the injecting facility’. The VDPEC notes that, if this is in fact how the scheme would operate, there is a need for consistency, with the Chief Commissioner of Police giving instructions, similar to those issued with respect to the needle and syringe programs, as to when someone should be arrested — or not. Unfortunately, this does not appear to adequately address some of the realistic concerns about the proposals relating to police discretion, which are voiced by critics such as Crofts. See Oscapella and Elliott, above n 152, A10–A14, who note the need for express exemptions from criminal liability, rather than reliance on the exercise of police or prosecutorial discretion.
[408] Hugh Martin, ‘Police to Keep Out of Heroin Room Plan’, The Age (Melbourne), 2 June 2000, 6. The ADCA, above n 4, 185 notes that ‘police activity (and perceived police activity) in the vicinity of needle and syringe exchange programs has a very large impact on the effectiveness of the programs’. The Council highlights the importance of having the police support needle exchanges, and notes that Australian police have developed policies to ensure that their activity does not interfere with exchanges and outreach services which distribute clean needles and syringes and discard unclean needles and syringes — to the degree possible. The same sort of support must be secured for the trial of facilities to succeed.
[409] Martin, ‘Police to Keep Out of Heroin Room Plan’, above n 408. As noted above, this latter concern was addressed in the Victorian Bill.
[410] These, and related issues, have been considered in several reports, including NSW Joint Select Committee, above n 86, 123; VDPEC, Drugs: Responding to the Issues, above n 4, 41, 51; DCPC, above n 2, 12–13. No such lawsuits have arisen in European jurisdictions with respect to injecting facilities: Thomas Kerr, above n 6, 56.
[411] Supervised Injecting Place Trial Act 1999 (ACT) s 12.
[412] Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 10 December 1998, 3440–1 (Michael Moore, Minister for Health and Community Care). The committee comprised the Director of Public Prosecutions, the Australian Federal Police and the Department of Justice and Community Safety. The Minister noted that the purpose of the facility is to provide an hygienic place in which to inject, not to regulate what is injected. Therefore, the operators should not be liable if something were to go wrong. Moore also noted that it would be virtually impossible for the operators and the Territory to obtain insurance cover, having regard to the nature of the facility and the relevant risks.
[413] Drug Summit Legislative Response Act 1999 (NSW) sch 1, s 36P.
[414] New South Wales, Parliamentary Debates, Legislative Council, 28 October 1999, 2280 (Ian Macdonald, Parliamentary Secretary).
[415] Ibid.
[416] Ibid 2281.
[417] Ibid.
[418] See Scanlon v American Cigarette Co (Overseas) Pty Ltd [1987] VicRp 24; [1987] VR 289; Kent v Scattini [1961] WAR 74.
[419] New South Wales, Parliamentary Debates, Legislative Council, 28 October 1999, 2281 (John Ryan).
[420] New South Wales, Parliamentary Debates, Legislative Council, 27 October 1999, 2032 (Frederick Nile). Nile points to inconsistencies in the Australian Labor Party’s approach to the availability of civil suits.
[422] Ibid 13. See also Oscapella and Elliott, above n 152, A26.
[423] VDPEC, Drugs: Responding to the Issues, above n 4, 41.
[424] Darrin Farrant, ‘Decision Could Be Legal Minefield for Operators’, The Age (Melbourne), 20 April 2000, 4: ‘Staff at the injecting rooms, the Victorian Government and anyone who helped to promote or set up the centres could also be at risk’ — users who suffer harm as a result of injecting in these rooms could sue the owner of the building, lessees, government, or a relevant outside agency helping to run the room, by arguing that she or he had been led to believe that it was safe and properly supervised. It has also been stated that nuisance suits brought by local residents are possible. The former federal Minister of Health, Michael Wooldridge, concurs: ‘any organisation auspicing one of these (centres) puts themselves up for a very great legal liability’.
[425] Drug Summit Legislative Response Act 1999 (NSW) sch 1, s 36I. However, s 36L(f) requires that at least one member of staff have experience or qualifications in child protection and youth support, and that person must be in attendance at the centre, or available on call to attend the centre, at all times.
[426] Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill 2000 (Vic) s 6. This gave effect to the VDPEC’s concern to prevent opportunities for inexperienced users who are not already part of a group of street-based injecting drug-users to be drawn to the site: VDPEC, Drugs: Responding to the Issues, above n 4, 35.
[427] See VDPEC, Drugs: Responding to the Issues, above n 4, 36.
[428] ‘Excluding young people from the supervised injecting rooms could cost lives’: Les Twentyman, an Open Family youth worker, cited in Victoria Button and Chloe Saltau, ‘Drug Experts Urge Room for Youth’, The Age (Melbourne), 20 April 2000, 4.
[429] Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2000, 2147 (John Thwaites, Minister for Health).
[430] ‘[S]everal contributors [to the Port Phillip survey] suggest that the service should have specific strategies around targeting youth at risk’: City of Port Phillip, above n 55, 23.
[431] Adrian Rollins, ‘Libs Reject Drug Rooms Test’, The Age (Melbourne), 12 August 2000, 2.
[432] See ‘Drug Laws: Reaction at a Glance’, The Age (Melbourne), 2 June 2000, 6.
[433] Gabrielle Costa and Meaghan Shaw, ‘Mayors Angry over Liberal Decision’, The Age (Melbourne), 12 August 2000, 6.
[434] Ibid, citing Port Phillip Mayor Julian Hill. As has been argued in this article, there is not only a moral imperative to establish a trial, but a legal one as well — to give effect to international law obligations.
[435] Victorian Local Governance Association, No Is Not Enough: Libs Urged to Present Alternatives, Press Release (11 August 2000).
[436] Costa and Shaw, above n 433.
[437] Chloe Saltau, ‘Injecting Room Support Is Rising: Rally Group’, The Age (Melbourne) 14 August 2000, 8.
[438] Nicole Strahan, ‘Opposition Accused of Drug Politics’, The Australian (Sydney), 21 June 2000, 7. Interestingly, Adrian Rollins, ‘Bracks Drug Room Charge’, The Age (Melbourne), 8 September 2000, 4 reports Labor government assertions that the previous Coalition administration — and former Premier Kennett — had in fact secretly considered an injecting room as a viable option among other harm reduction strategies; documents showed discussions to that effect with the Wesley Central Mission, with a view to negotiating the implementation of a facility.
[439] Sally Finlay, ‘Fear Stifles Debate: Penington’, The Age (Melbourne), 12 September 2000, 3.
[440] Ewin Hannan, ‘Courage and a Dash of Realism’, The Age (Melbourne), 20 April 2000, 4.
[441] Editorial, ‘Courage Needed to Reduce Heroin Harm’, The Age (Melbourne), 16 August 2000, 6.
[442] Meaghan Shaw, ‘Victoria to Look at Alternative to Heroin Injecting Rooms’, The Age (Melbourne), 16 August 2000, 6.
[443] Costa and Shaw, above n 433.
[444] This was recognised by Independent Member Suzanne Davies, who noted the desire of two local communities to trial facilities: ‘I would see it as very presumptuous of somebody like me to block it when really the problems are not obvious in my area.’ See Meaghan Shaw, ‘Injecting-Room Fight Looms’, The Age (Melbourne), 28 August 2000, 6.
[445] ‘Drug Laws: Reaction at a Glance’, above n 432. See also Thomas Kerr, above n 6, 3, regarding Vancouver’s (and British Columbia’s) ‘public health crisis involving injection drug users’ which could rival Melbourne’s ignominious claim.
[447] Kings Cross Chamber of Commerce and Tourism Inc v The Uniting Church of Australia Property Trust (NSW) [2001] NSWSC 245 (Unreported, Sully J, 5 April 2001) (‘Kings Cross’). The Chamber objected to the facility’s location; Chamber members supporting the failed court action included sex shops (eg, Risque Adult Boutique, Pleasure Chest, Playbirds, Kinks and Erotica Plus) and hotels (Tudor Lodge and Maksim Lodge). See also Morris, above n 340.
[448] Kings Cross [2001] NSWSC 245 (Unreported, Sully J, 5 April 2001) [91]. See also Sian Powell, ‘Heroin Injecting Room Can Open Doors Today’, The Australian (Sydney) 6 April 2001, 1–2; Melissa Fyfe, ‘Injecting Room to Go Ahead’, The Age (Melbourne) 6 April 2001, 2; Morris, above n 340. The Court commented (at [2]) on its limited role in adjudicating the dispute:
It needs no extended emphasis that the very proposal that there should be a legalised facility gives rise to large questions of public policy, of public morality, of social philosophy, of social policy, and of social welfare. It is, on that account, important to establish at the outset of this judgment that it is not the function and duty of this Court to pronounce, in the context of the present proceedings, upon any of those stated types of concern. The sole function and duty of the Court is to examine and construe the terms of the licence as issued; and the procedures by means of which the application for the licence was assessed and granted; and then to come to a reasoned answer to the question whether the licence has been properly issued according to law.
See Melissa Fyfe, ‘Injecting Room to Go Ahead’, The Age (Melbourne) 6 April 2001, 2; Sean Maher, ‘Injecting Room Faces New Attack’, Sydney Star Observer (Sydney), 12 April 2001, 3; Reuters, quoted in ‘Sydney Injecting Room Ready for Business’ (2001) 12 HIV/AIDS Legal Link 3.
[449] Fyfe, ‘Drug Injecting Centre Faces Siege by Media’, above n 135.
[450] Anthony Stavrinos, ‘Addicts Keeping Away from the Spotlight’, The Age (Melbourne), 8 May 2001, 2: 100 individuals who had shown an interest in using the facility stated they were deterred from doing so because of media intrusiveness.
[451] Ibid. See Powell, ‘First Addicts Shoot Up in Centre’, above n 346; Fyfe, ‘Drug Injecting Centre Faces Siege by Media’, above n 135: it initially opened each day for one four-hour session, to be followed by an evening session after one month’s operation.
[452] ABC News Online, ‘Injecting Room Success’, AM, 12 May 2001 <http://www.abc.net.au/am/
s295295.htm> at 21 September 2001 (copy on file with author). For the purposes of a trial, the facility is arguably placed in an ideal location:
In a 12-month period in 1999–2000, there were 677 call-outs to drug overdoses in Kings Cross — and there were the cases in which Narcan was used, the medication that reverses a heroin overdose. Ninety per cent of these call-outs, or 621, were within 300m of the injecting centre. Fifty-four per cent, or 335, were to drug users who overdosed on the footpath of Darlinghurst Road or in the buildings on the street. Death stalks the streets of Kings Cross. It is this terrible toll that the Uniting Church is hoping to reduce with the ... trial ...
Powell, ‘Addiction in a Safer Vein’, above n 93. See also Powell, ‘First Addicts Shoot Up in Centre’, above n 346. As of 14 May 2001, 200 persons had registered with the facility: ‘“Quick Action” Saves User’, Daily Telegraph (Sydney), 14 May 2001 <http://dailytelegraph.com.au/
common/story_page/0,4511,1996255.html> at 12 June 2001 (copy on file with author).
[453] Fyfe, ‘Drug Injecting Centre Faces Siege by Media’, above n 135.
[454] Cited in Kings Cross [2001] NSWSC 245 (Unreported, Sully J, 5 April 2001) [64] (citations omitted).
[455] ABC News Online, above n 452.
[456] Ibid.
[457] Powell, ‘First Addicts Shoot Up in Centre’, above n 346. Dr van Beek comments: ‘There was communication with drug users at a level never seen before and this had assisted in achieving success with one patient’. See ‘Heroin Injecting Room Opens for Business’, The Australian (Sydney), 7 May 2001 <http://news.com.au/common/story_page/0,4057,1972130%255E421,00.
html> at 21 September 2001 (copy on file with author).
[458] Sian Powell, ‘Injecting Centre Throws 831 Users a Safety Line’, The Australian (Sydney), 15 August 2001, 2.
[459] Ibid. See Heather Kent, ‘Australia’s Safe “Shooting Gallery” Proving Popular’ (2001) 165 Canadian Medical Association Journal 1375.
[460] Powell, ‘Injecting Centre Throws 831 Users a Safety Line’, above n 458.
[461] Ibid.
[462] Ibid.
[463] Powell, ‘Addiction in a Safer Vein’, above n 93.
[464] Ibid.
[465] Ibid.
[466] Fyfe, ‘Drug Injecting Centre Faces Siege by Media’, above n 135; ‘Operators Relieved As Injecting Room Opens for Business’, ABC News Online, 7 May 2001 <http://abc.net.au/news/
2001/05/item20010507091711_1.htm> at 21 September 2001 (copy on file with author).
[467] Crimes (Sentencing Procedure) Act 1999 (NSW).
[468] Expert Committee on AIDS and Prisons, HIV/AIDS in Prisons (1994).
[469] New South Wales, Parliamentary Debates, Legislative Council, 30 November 1999, 3814 (Jeff Shaw, Attorney-General).
[470] New South Wales, Parliamentary Debates, Legislative Council, 30 November 1999, 3814 (Arthur Chesterfield-Evans). Ian Cohen argues that the supply of syringes in jails should be viewed as a health and social, rather than a criminal, matter: because prisoners use drugs intravenously, it is ‘negligent from a public health perspective’ — and a breach of a duty of care — not to provide sterile injecting equipment: see New South Wales, Parliamentary Debates, Legislative Council, 30 November 1999, 3846–9 (Ian Cohen).
[471] Professor David Penington, Transcript of Proceedings, NSW Drug Summit 1999, 17 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author): ‘Unless we are willing to think outside the square, as some other countries are now doing, we will not succeed in coping with this problem.’
[472] Duncan Kerr, ‘Current Government Offensive’ (Paper presented at the HIV/AIDS Law, Policy and Directions National Legal Conference, Melbourne, October 1993) 2.1–2.2 (emphasis in original).
[473] Dolan et al, above n 14, 344.
[474] Quoted in ‘Carr Cool to Needle Room Trial’, Daily Telegraph (Sydney), 1 May 2001, 9.
[475] In a different context, Kerr, above n 472, 2.2 notes: ‘Of course, one person with HIV, one Australian dying of AIDS, and one new infection with [the] virus, is a defeat, not a victory.’ The same may be said with respect to the harms which may arise — and could have been prevented — as a result of not trialling supervised injecting facilities.
[476] Quoted in Misha Schubert, ‘Drug Rooms Face Defeat’, The Australian (Sydney), 25 July 2000, 8.
[477] Quoted in Foley and Finlay, above n 74. Reverend Costello’s ‘reluctant support’ stems from his view that facilities can send a mixed message. See ‘Supporting a Trial’, above n 75: ‘I am very aware of cultural messages that can be improperly used and we have to be very careful the message that goes to young people is not one that says if it is safe and supervised it is ok. ... The real debate should be over proper funding for access to detox and rehab.’ Costello observed that the debate was paralysing the implementation of any innovative strategies; he called for the cessation of the debate, to give the government time to reinstate public confidence in its drug strategy. Highlighting the fact that most injecting occurs at home, he noted that facilities could address only a small proportion of the problem: Naidoo, ‘Cool Off Call on Injecting Debate’, above n 142.
[478] Quoted in McKenzie, ‘Injecting Rooms Are Urgent’, above n 49.
[479] ‘Supporting a Trial’, above n 75. Dr Ingrid van Beek, Transcript of Proceedings, NSW Drug Summit 1999, 18 May 1999 <http://drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author) asserts that
we must also look towards new approaches and not be scared. ... We need to be careful with new initiatives and not make the mistake of applying a test that is completely unrealistic and unachievable. Yesterday one speaker said that heroin programs, or injecting rooms, are unlikely to stop 16-year-olds from commencing injecting drug use. That is absolutely true, but should not stop us from considering those programs.
[480] Peter Cleeland, ‘There is No Solution. Injecting Rooms Can Help’, The Age (Melbourne), 8 June 2000, 18.
[482] Wodak and Owens, above n 29, 58–9.
[483] Kate Toohey, Transcript of Proceedings, NSW Drug Summit 1999, 17 May 1999 <http://
drugsummit.socialchange.net.au> at 21 September 2001 (copy on file with author).
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