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The real drug war:
Why the US won't let Australia reform its drug laws
David Marr and Bernard Lagan
DAVID Pennington, investigating drug law reform for Victoria's Premier, Jeff Kennett, flew to Hobart in January 1996 to meet Bob Gelbard, President Bill Clinton's chief international drugs law enforcer. The meeting was at the request of the United States embassy in Canberra, but it was Pennington and several other members of Kennett's Drug Advisory Council who flew south.

The Dallas Morning News recently praised Gelbard as one of the US State Department's "diplomatic dobermans". A former ambassador to Bolivia - he was there when the Americans sent troops to try to bust the cocaine industry - Gelbard was later promoted by Clinton to be Assistant Secretary of State for Narcotics and Law Enforcement and took the hard line he had worked in Latin America into the wider drugs world.

Last year was a busy time for Gelbard. He saw Colombia punished for its part in the drug trade, cutting most US aid to the country and revoking President's Ernesto Samper's US entry visa because of his ties to the Cali cocaine cartel. Gelbard was in Nigeria lecturing its military ruler, General Sani Abacha, over his regime's entanglement with drugs. He joined in Clinton's public vilification of Burma, which led to aid and trade cuts for its regime's failure to clean up the local opium trade.

To the meeting in Hobart, the American diplomat brought an embassy officer whom Pennington had noticed at every public meeting his inquiry had held. He understood the woman, in her late 40s, had "an intelligence role in providing information to Washington as to what's going on in this country with a particular interest in the drug issue".

Gelbard took "a very traditional law enforcement position", at odds with Pennington's view that Australia should be relaxing its tough, prohibitionist drug policies. He found the American's message "heavy-handed". Gelbard was "scathing" about liberal Dutch marijuana laws and Pennington recalled him saying: " "The United States Government viewed with concern any countries who appear to be or are actively considering liberalisation of drug laws.' He told us he had a close interaction with President Clinton, that he had written a speech for the President in which the President indicated that with the Cold War now over the next frontier was the war on drugs."

Gelbard's meeting with Pennington - revealed here for the first time - is a reminder that this country is not free to take radical action to solve its drug problems. Australians talk most of the time as though this country - indeed, the individual States - can decide the fate of their own narcotics laws. This is a delusion.

As a good citizen of the world and a loyal supporter of the United States, we have signed international treaties which pledge Australia to stick to the prohibition strategy that has brought us to the position in which we now find ourselves, a sad situation nearly all local authorities - including Pennington - acknowledge must be changed.

But Australia cannot now make any radical break with the past or with our allies. The treaties are the work of the United Nations - and before that, the League of Nations - but the passion and policing are mainly American. Wherever a nation seems about to break ranks, the US will be there, cajoling or threatening. As a result, the UN and US between them have achieved a remarkable international consensus, the more astonishing for surviving the almost universal verdict that the strategy of drug prohibition has failed.

In the past, the American Embassy has lobbied here against the decriminalisation of marijuana, even though 11 US States have taken that step. More worrying for the US is the prospect that Australia, like Switzerland, might experiment by prescribing heroin to see if that radical step might break the terrible cycle of crime and death that heroin addiction now brings in its wake. Pennington recalled that Gelbard was "scathing" also about the Swiss heroin trial.

So, too, is the International Narcotics Control Board (INCB). From its nest of glass towers in Vienna, this UN agency supervises the drug treaties signed by most of the world this century. Scientists and medical people sit on the board, but career anti-drugs campaigners and lawyers have the numbers. Running the team is a former public prosecutor from Germany who is forcefully opposed to radical change in the world's approach to drugs. The INCB has the power to cut off the supply of pharmaceuticals - and other legal drugs - to errant nations. But its day-to-day impact is to cast a legal grid over the world's drug debates.

In 1995, an unknown Australian diplomat in Vienna approached the INCB to test its attitude to an Australian heroin trial in Canberra. A few lines of a leaked and partly censored account of the meeting between the diplomat and the board's secretary, Herbert Schaepe, were revealed a few weeks later on the ABC's Four Corners. Schaepe "was clearly not pleased with the prospect of the ACT trial". He belittled the Swiss trial and all such trials, saying they were doomed to failure. But the INCB would allow a trial to go ahead as long as it was "part of a genuine commitment by the Government to achieve a drug-free society rather than a concession to living with drugs".

That would be that - but for Tasmania, the weapon the INCB and the US could, if they wished, use against Australia if we ever found the courage to undertake fundamental drug reform. Tasmania has one of the world's most efficient and profitable legal opium-growing industries. It exists and prospers only with the say-so of the INCB and the US. According to the notes from that meeting with Schaepe in Vienna, relations between the INCB and Australia are "already testy ... as a result of [censored] past contention that our licit industry was overproducing".

After that meeting, the diplomat cautioned Canberra that the Tasmanian industry meant we must "deal with the INCB regularly and on an intimate level. Our concern is that [censored] could make life difficult for us in our annual negotiations on poppy production. [censored] we see this as a real risk and one that should certainly be borne in mind when weighing up the overall pros and cons of the trial."

Switzerland and the Netherlands are at the forefront of radical drug reform. Change has been contested by the INCB but there has been no international lever to compel those two countries to stay in line. They don't need US aid. President Jean-Pascal Delamuraz of Switzerland can hardly be banned from entering the United States. But Tasmania's very profitable opium industry could be closed down by the UN or the US, putting out of business 700 growers and a couple of processors earning between them $80million a year. The State most opposed to the ACT heroin trial - indeed campaigning against it here and in Vienna - is Tasmania.

The poppy farmers have condemned the ACT trial to the Herald as a foolish exercise that could jeopardise their industry. Rod Thirkell-Johnston, president of the Tasmanian Farmers and Graziers Association, spoke to Four Corners of their "mistrust and fear" of the US's response to the ACT experiment. "The big problem we have is that the trial's being conducted in Canberra, which is nowhere near Tasmania, which has a minimal relationship with Tasmania, but unfortunately the Americans use the argument that Australia is one country and you can't isolate segments of it."

Tasmania's Minister for Justice, Ron Cornish, has written to just about every Federal and State minister over the past few years condemning the trial as a breach of our international treaty obligations. He is not saying it's necessarily a bad idea - just that it's against international law. The Tasmanian Government is now shying away from this absolute verdict. Last week, a spokesperson told the Herald that there was "no official legal opinion". What matters more, perhaps, is that the extraordinary meeting between David Pennington and the heavy from the State Department, Bob Gelbard, took place in Ron Cornish's office.

Officially, Gelbard was on the island to check out the opium industry. "He came out here," said Julian Green, head of the Poppy Advisory and Control Board, "to see what he understood, and proved to him to be, the most efficient producer of crude morphine and morphine-based drugs in the world". American officials, from Congress and the US Drug Enforcement Agency, come through Tasmania regularly. They keep a close eye on the industry and always raise the possibility that the US will lift its quota of Tasmanian product, a quota known as the 80:20 rule.

This is the perpetual hope of the industry, which resents the privileged access of Indian and Turkish legal opium product to the United States for the manufacture of morphine and codeine. This hope also keeps the Tasmanian industry in line. Again Gelbard was holding out the prospect of a better quota for the island, but Green denied the ambassador was using this to gather opposition to the Canberra trial. "It wasn't a factor," Green said. "He did say to a journalist in Tasmania that the heroin trial in Canberra is an Australian issue."

Not only was Gelbard suggesting the opposite in private with Pennington, but nearly a century of successful US diplomacy has made sure that challenging the ground rules on heroin is notjust an Australian issue. Very far from it...

WHEN America won the Philippines in its war with Spain, it discovered opium smuggling was rife in the islands. A passionate fear of opium had appeared in the US after the Californian gold rushes and this was mixed up with white distaste for the Chinese who smoked the stuff. Race was, and remains, a potent element in all of this: America set out in the first years of the century on a mission to protect the world, but especially the white world, from the scourge of opium.

Not much might have come of this, but Britain elected its first anti-opium government a few years later and after centuries of protecting the trade - indeed fighting wars to force opium into China - Britain was also keen to see opium controlled. So in 1909 America called a conference in Shanghai that set out, for the first time, to fight drugs through inter- national co-operation. In a sense, every treaty since has been a forlorn attempt to make that Shanghai agreement work.

Australia was locked into the system after World War I by the Treaty of Versailles. In Geneva a few years later we joined the rest of the world in putting cannabis - the oldest continuously used drug on Earth - on the banned list. Once available over the counter here as Cigares de Joy, cannabis had just about disappeared by the time we signed this Geneva convention. Perversely, the fact that the drug problem didn't seem to affect Australia much made us even happier to sign these treaties. As the academic lawyer Desmond Manderson wrote in his book From Mr Sin to Mr Big, "Australia was blown along by the winds of international opinion without genuine commitment or thought".

The US had far higher ambitions than Britain. It wanted to make the globe free, for the first time in human experience, of all recreational drugs except cigarettes. This amazing ambition survived even the failure of domestic Prohibition of alcohol - not that the UN will concede, even now, that this failed. The latest World Drug Report of the UN's International Drug Control Program, released in late June, concedes the crime, the violence and deaths from moonshine in America in those Prohibition years but concludes it is "difficult to extrapolate lessons for modern times".

Others have drawn the conclusion - and it's virtually a consensus now - that absolute prohibition of drugs and alcohol cannot work. But this wordly realism is emphatically rejected by the US and the UN, which have, between them, persuaded the world that with greater dedication, tougher measures and more treaties, success is still possible. So they have held the line for nearly 90 years in what must be seen as an absolutely successful diplomatic effort.

As the conventions got tougher and tougher, Australia kept signing them. Only once was there any resistance here. The US was all along determined to wipe out opium's powerful derivative, heroin, by banning even its medical use and after World War II, through the World Health Organisation, it imposed that rule on the world - even though heroin was then still the best pain-killer available. Australian doctors fought back but were ultimately brought into line by Canberra. In Britain, a powerful counter-attack by the medical profession preserved their right to prescribe heroin. That survives - heavily circumscribed - even today.

Still we had no heroin problem of our own. That came in the early 1970s - by courtesy of the American Drug Enforcement Agency (DEA). As the Vietnam War wound down, the DEA very successfully stopped heroin following the troops home. "The DEA in effect compelled the syndicates to sell heroin originally produced for American addicts in alternative markets," wrote the academic Alfred McCoy in his book Drug Traffic, Narcotics and Organised Crime in Australia. "In short, the DEA simply diverted South-East Asian heroin from the US into European and Australian markets, evidence for what we have called the iron law of the international drug trade."

Now, when we needed the conventions, they were no help to us. Heroin washed into Australia and the cycle began of crime, corruption, addiction and death. The treaties we had entered into did little to inhibit supply and left us unable to take any radical initiative to cope with the unfolding disaster. Yet in 1988 we signed another of these agreements - the Vienna Convention - in which we made the strongest promises yet to keep recreational use of drugs in Australia a crime.

The former Chief Judge of the ACT, Russell Fox, QC, was one of those calling on Australia not to ratify the treaty. "Australia should not, at this time, reaffirm (and strengthen) unsuccessful treaties of 20 and 30 years ago which tie our policy on most drug use to complete and unqualified prohibition. The inevitable result is a most dangerous illegal market which is by definition uncontrolled. There can be no quarrel with the making of international arrangements or with an attempt to eliminate illegal traffickers. The real question is how this can best be achieved..." But we ratified in 1992.

Where does that leave us? In the sort of confusion that lawyers love and timid politicians use to make sure nothing is done. But two things are absolutely clear: no Australian State or Territory can go it alone on drugs. The Commonwealth has all the authority here because of its treaty obligations. Canberra can overrule any State initiative. The reforms Bob Carr might be persuaded to make in NSW are really a side issue. Nothing of much consequence can happen about drugs in Australia without Canberra's approval. It's John Howard's position that matters and that's profoundly unadventurous.

The second consequence of our international entanglements is this: the Vienna authorities won't let us pursue the path of legalisation. We can't contemplate making drugs - or some drugs at least - available over the counter like cigarettes and alcohol. Though the INCB in Vienna is frankly encouraging treaty States to find ways other than imprisonment to punish marijuana smokers, it still insists that even personal possession and use of marijuana remain crimes. What we call "decriminalisation" of marijuana in South Australia, the ACT and Northern Territory, the INCB calls a crime with a very light punishment. But Vienna is not looking at the "decriminalisation" of heroin. That drug remains as absolutely demonised in the thinking of the United States and the INCB as its parent, opium, was in Shanghai in 1909. As Herbert Schaepe remarked in the course of ridiculing the Swiss trial and Australia's wish to follow the Swiss lead: "Heroin is too dangerous a substance to be playing with."

WHEN the Australian health ministers meet in Cairns at the end of this month to discuss the proposed Canberra trial, they will have with them the promising results from Switzerland - a "striking decline of criminal activities" and dramatically improved addicts' health - and an information paper (so far secret) prepared by the Federal Department of Health's National Drug Strategy. It concludes - despite the arguments from Tasmania - that a heroin trial can be held in Canberra without breaching our treaty obligations. Australia, like Switzerland, will use the exemption under the treaties for "medical and scientific research ... including clinical trials". The National Drug Strategy's paper was prepared in response to the latest round of objections from Tasmania in the middle of last year when the island was arguing that a trial measuring outcomes such as burglary and muggings was neither medical nor scientific because criminology was not, Tasmania reasoned, a science.

But the bigger treaty question looms beyond the trial itself: if we find the courage to hold a Canberra trial and it matches the encouraging results from Switzerland, will the treaties allow us then to prescribe heroin, not as an experiment but as a day-to-day practice of medicine in Australia?

The answer is unclear. The aim of the treaties is a drug-free world, but maintaining a supply of legal heroin to addicts continues in Britain on a very limited basis despite the disparaging views of the INCB that the British system "fell into disrepute" in the 1960s. Now Britain is preparing its own heroin trials with a view to one day restoring prescription on a much wider basis. Among Australian health authorities, the surviving system in Britain is used to argue that day-to-day prescription of heroin is, at the very least, not impossible under the treaties.

The Swiss are much more confident they can prescribe heroin day-to-day if and when their trial succeeds. Margaret Rihs, the head of the Dependency Research Program for Switzerland, told the Herald: "Heroin is given to get addicts into treatment. All treatment is better than no treatment. They can then start reconstructing their lives and eventually the aim is that they will not need heroin."

The Swiss have had to battle all the way. Our diplomat in Vienna cautioned the Australian Government that it should not underestimate the lengths the INCB may go to to express "displeasure were the program to go ahead" because of "the experience the Swiss have had [censored] in relation to their program..."

Now that Swiss program may be about to hit the wall. A national referendum for "Youth Without Drugs" has been called by an outfit known as the Society for the Psychological Knowledge of Mankind. This group is allied to parties of the far Right in Switzerland and appears to have a great deal of money to promote the idea that heroin and methadone should be banned. Rihs notes that the INCB "pays attention to" the society's submissions and appears to treat it at times as speaking for the Swiss people. Previous polls on the heroin trials have been city-based, but this vote on September 28 will involve the whole - far more conservative - Swiss electorate. It's thought to have a fair chance of success.

That would please Vienna, not so much because the INCB believes controlled prescription of heroin can't be handled properly by the Swiss - or the Australians and British for that matter - but because of the message heroin trials in the West would send to Pakistan, Burma, India, Bangladesh and other countries where heroin production and addiction are already completely out of control. The fear is that these governments would set up "trials" of their own as fronts behind which they could capitulate in the fight against drugs. Perhaps so, but Australia is now asking how much good sense and good medicine we should sacrifice to the failed objectives of world prohibition. Despite the relentless optimism of the INCB's reports, it is clear that the treaties 158 nations have now signed are not working. Here are a few facts from The Report of the International Narcotics Control Board for 1996, published about 90 years down the track from that first conference in Shanghai: 7,9 9 In South and Central America: despite all efforts, more cocaine and heroin is heading for North America than ever before and causing even more drug-related crime and corruption on the way.

7,9
9 In "the biggest illicit drug market in the world", the United States: regular heroin use is rising while more young people than ever are trying cannabis, cocaine, LSD and other hallucinogens. The INCB deplores the referendums held in California and Arizona that have allowed easy use of cannabis "for alleged medical purposes" and congratulates Washington on its firm stand "against such indirect but evident attempts to legalise cannabis". Concern is also expressed that "well-financed, non-profit foundations sponsor institutions that are developing strategies for the legalisation of drugs".

7,9
9 In Asia: heroin is everywhere, opium smoking is being replaced "unfortunately" by heroin-injecting, Burma remains one of the largest opium suppliers to the world, codeine cough syrups are being abused, and cannabis, growing both wild and under cultivation, is supplying Europe.

7,9
9 In Europe: cocaine and heroin are in slight decline, synthetic drugs are on the rise, but cannabis remains the continent's favourite drug. The INCB is very worried about hydroponic cultivation of cannabis indoors - particularly in the Netherlands - and deplores the "ambiguous message" of an energy drink launched in Liechtenstein with the name Ecstasy. But the massive drugs impact of the fall of the Iron Curtain is masked by diplomatic language about "new socio-economic frameworks" needing to find ways "to prevent drug-related crime and to ensure more effective border controls". Drugs can now move unchecked across the former Soviet Union from the "Golden Crescent" of Afghanistan and Pakistan almost to the Baltic.

In the face of all this, the United States and the United Nations expect the world to keep on keeping on, trying to snare with treaties an international industry now turning over $400billion a year. The treaties aren't working - except to circumscribe and complicate the task of those who want to grapple with the real challenges of living in a world awash with drugs.