Drug prohibition and the criminalisation of people who use those drugs might seem like it’s been around forever but most Australian drug laws are relatively new.

This brief account of the history of Australian drug laws was written by NSW lawyer Steve Bolt in 2010 and is adapted from text originally published in Hot Topics: legal issues in plain language, No. 59 Drugs and the Law published by the Legal Information Access Centre (LIAC).

The notion of making drug use illegal did not really emerge in Western societies until the late nineteenth century. Before that, in Australia, Britain, Europe, and the United States, whether people used drugs was considered a personal decision—subject to social disapproval, but not illegal. Alcohol was of course the most widely used psychoactive substance.

The first Australian drug law was an 1857 Act imposing an import duty on opium. In the following years, a number of other laws were passed imposing often prohibitive tariffs on opium. The primary purpose of the laws was clearly to discourage the entry of Chinese people to Australia, rather than to restrict the importation of opium itself.

Australians in the nineteenth century were among the world’s biggest consumers of opiates, thanks to the very wide popularity of patent medicines, most of which contained a high proportion of alcohol or morphine or both. Laudanum, a mixture of opium and alcohol, was taken regularly by upper class matrons and administered to children to calm them.

The first laws restricting opium were carefully worded to apply to opium in smokable form only—not opium as it was taken by the European population.

Cannabis plants were sent to Australia by Sir Joseph Banks on the First Fleet, in the hope that the new colony might grow enough hemp to supply the British Navy with rope. Cannabis was not consumed on a large scale (although it was readily available for sale as cigarettes called ‘Cigares de Joy’ until the 1920s). Cannabis importation and use was prohibited by federal legislation in 1926 (implementing the 1925 Geneva Convention on Opium and Other Drugs), with the states adopting similar prohibition in the following years.

Heroin was legally available on prescription in Australia until 1953. It was so widely used as a painkiller and in cough mixtures that Australia was the world’s largest per capita user of heroin. The 1953 prohibition of heroin was the result of international pressure on Australia to conform to the prohibition of heroin adopted by other countries, with some opposition from the Australian Medical Association.

Ironically, heroin, cannabis, and other drugs were prohibited in Australia well before their use became a major social issue.

Before the 1960s, drug use was not completely unknown, but dependent drug use was typically the result of the use of opiates after first using them for medical reasons. There were drug dependent doctors (and their wives), and a small bohemian subculture that used drugs. Many Australian arrests for drug offences involved visiting jazz musicians.

Among the significant social changes of the 1960s was the emergence of the concept of ‘recreational’ drug use—the consumption of cannabis, heroin, LSD and other psychoactive drugs for pleasure, or in pursuit of spiritual enlightenment. For the first time, drug use became widespread—if not quite mainstream—rather than an activity pursued by a few painters or poets. The official response was increased law enforcement, and legislative change to extend the range of offences and increased penalties for drug offences.

The Vietnam War contributed to the significant increase in drug consumption in Australia in the late 1960s, with American soldiers on ‘rest and recreation’ leave in Australia creating a market for heroin, marijuana and other illicit drugs, and providing a glamorous example for the locals.

The ‘old’ Australian drug laws were mostly under the various state Poisons Acts, reflecting an underlying approach of regulation and control of medicinal substances, with potentially addictive drugs legally available only on a doctor’s prescription. The ‘new’ drug laws introduced a distinction between use and possession offences, and supply offences. Penalties for possession and use increased, but very substantial penalties were introduced for drug supply, and especially supply of large quantities (‘drug trafficking’). By 1970, all the states had enacted laws that made drug supply a separate offence to drug use or possession offences.

In 1985, the federal and state governments adopted a National Drug Strategy which included a pragmatic mixture of prohibition and a stated objective of harm reduction. Harm reduction has been an official part of Australian drugs policy ever since, although most resources by far are devoted to policing and border patrol attempts at interdiction (‘supply reduction’). Fewer resources are made available for health treatment and drug rehabilitation programs, or for preventative public health programs such as needle exchange.

The needle exchange program has been successful. Australia maintains an extremely low rate of HIV infection among injecting drug users. The success of the needle exchange programs encouraged governments to at least consider adopting other harm minimisation initiatives.

The merits of a trial of a heroin prescription program, based on the Swiss model, were debated in the 1990s. The ACT government took steps to begin a trial program, but the federal government refused to allow the importation of heroin. Unable to source legitimate and controlled quality heroin, the ACT government abandoned the proposed trial.

Australia has been tentative about allowing legal injecting rooms, with NSW the only state to permit an injecting room, and then only one. The Medically Supervised Injecting Centre (MSIC) operated from 2001 to 2010 on a ‘trial’ basis. In October 2010, legislation to make the Kings Cross MSIC permanent was passed by both Houses of the NSW Parliament. The Police Commissioner and the Director-General of NSW Health will continue to oversee the centre and it will undergo regular statutory evaluations every five years.

In all states, the impact of prohibitionist laws on drug users is somewhat modified by a number of diversion programs, diverting some eligible users from the criminal justice system to cautions or treatment.