Victoria Just Quietly Banned Drugs That Don't Even Exist Yet

Earlier this month, the Drugs, Poisons and Controlled Substances (Miscellaneous Amendments) Bill 2017 (Vic) quietly came into effect. And, with it, a blanket ban on the manufacture, sale, and marketing of "psychoactive substances" across the state of Victoria.

The ban was introduced to tackle "synthetic drugs"—also known as "novel psychoactive substances" (or NPS)—a broad categorisation for drugs that manage to subvert existing laws. The growth of NPS markets has proven a major challenge for law enforcement and drug prohibition advocates in Victoria, as long-established criminal laws relied heavily on listing "drugs of dependence" one-by-one, based on their chemical makeup.

The listing approach couldn't keep up with NPS manufacturers, who would just slightly alter the molecular structure of a given drug to beat the system. For example, "synthetic cannabinoids" began their life as research chemicals such as JWH-073 (a relatively benign, THC analogue) but gradually evolved with subsequent bans into chemical compounds far removed from anything in the cannabis plant.

There are obvious pros to a blanket ban approach. It essentially reverses the listing problems of the previous regime, making prohibition the default position until the Victorian Parliament provides an exemption. But there are also serious questions raised by the legislation, such as, will it even work?

In the legislation, the term "psychoactive substance" is broadly defined as any substance that has a "psychoactive effect" on someone. This means it causes:

What's really interesting, though, is that the legislation also criminalises the sale of any products that "represent" to have psychoactive effects. This caveat makes the ban even more broad than what we've seen elsewhere in Australia, and in the UK. The UK ban has proven controversial among public health experts and is currently being reviewed.

As the definition of psychoactive substance is quite broad, the banning legislation makes clear that a number of commonly consumed products will not be deemed "psychoactive substances." This includes alcohol, tobacco, food products, and therapeutic goods—including, importantly, medicinal cannabis.

The legislation also provides an exception for "a plant or fungus or an extract of a plant or fungus" seemingly allowing the sale of herbal supplements that may have a psychoactive effects, such as St John’s Wort.

There are already questions being raised as to whether the psychoactive substances ban will have any impact on the consumption of synthetic drugs in Victoria. One of the biggest challenges for law enforcement in tackling NPS markets is the ability for users to purchase psychoactive substances online. Most of the drug detection equipment used for customs screening is unable to detect NPS, making importation relatively easy.

The definition of the term "psychoactive effect" has also raised concerns, particularly the use of terms such as "significant disturbance" or "significant change." These definitional concerns may pose barriers to enforcement and are likely to be raised in any criminal prosecution of the blanket ban.

Finally, harm reduction advocates and public health bodies, such the Pennington Institute and Victorian Aids Council, have criticised the move seeing it as an extension of harmful "war on drugs" practices that have adversely impacted vulnerable groups. As VICE's Mac Hackett noted, writing about the impact of the UK ban, "the two biggest groups still using these substances are homeless people and prisoners."

And early research into the UK ban suggests it has created a flourishing black market for synthetic drugs, which are now being widely consumed by Britain’s homeless population. A similar effect was documented when Poland cracked down on synthetic drugs in 2010.

If we look once again to the UK model, the numbers aren't great. Despite nearly 500 arrests within the first six months of the ban, by the middle of this year only 26 convictions had been secured. The ambiguity of what constitutes a “psychoactive substance” continues to plague the legal change.

There were early fears when the ban was announced that it would target the LGBTQI community, when UK gay rights organisation Stonewall caused a particular stir when it suggested that ”poppers”—a muscle relaxant commonly used recreationally by gay and bisexual men—would be banned by the legal change. This has since been denied by the Advisory Council on the Misuse of Drugs.

In Victoria, police minister Lisa Neville has framed the introduction of the laws around community protection and explained in a media release that these laws are about cracking down on ice dealers. The focus of the legal change is on vendors who promote and sell psychoactive substances, rather than users.

There are harsh penalties attached to selling psychoactive substances in Victoria including up to two years in prison or more than $38,000 in fines. The legal change also expands police search, seizure, and forfeiture powers in relation to psychoactive drugs.

However, the UK ban also focused on vendors—but had some seriously unintended consequences. Namely, cracking down on brick-and-mortar stores, only to drive business to street dealers of these synthetics.

One of the biggest criticisms of the Victorian ban is that it's simply kicking the can up the hill on drug-related harms. Clearly there is a market for psychoactive experiences in Victoria that isn’t being met by the authorised intoxicants of alcohol, cigarettes, and caffeine.

Both the Greens and Victorian MP Fiona Patten opposed the blanket ban—pointing to a model proposed in New Zealand as a better approach. However, New Zealand but has since wound back this promise, which would've seen psychoactive substances considered for legalisation, once they were proven safe.

Drug prohibition has had a poor history at decreasing rates of consumption or drug-related harms. It remains to be seen whether a blanket bank of psychoactive substances will have its intended effect in Victoria.

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