Beyond criminal law: The multiple constitution of addiction in Australian legislation

Abstract

The role of the criminal law in the regulation of drugs and addiction is both well known and the subject of considerable academic debate. Judges are frequently enjoined to make decisions about different kinds of addictions, and the relationships between substance use, addiction, agency, subjectivity, responsibility, treatment and punishment. The criminal law is not the only legal realm in which such questions are being explored, however. Addiction figures in non-criminal contexts in various ways, including via statute, regulations, common law and the law of equity. The significance of how addiction is understood and managed in these non-criminal contexts is sometimes overlooked in academic research. Drawing upon research being undertaken in Australia, this article seeks to highlight the wide range of non-criminal contexts within which questions about “addiction” are regularly being asked. Using examples from Australian legislation, we draw attention to several fundamental tensions and inconsistencies in legislative approaches regarding addiction and ask how tensions and inconsistencies between legal realms may impact on the health, wellbeing and opportunities of affected individuals. In so doing, we seek to make a case for the importance of academic research beyond the criminal law, including comparative work across different legal realms where laws, standards of proof and rules of evidence may differ. We consider the assumptions that underpin (and emerge from) this legislation, raising questions about the role of the law in the production and management of addiction as “multiple”, and the possible “effects” of the constitution of addictions beyond the criminal law.

• Addiction
• law
• Australia
• drugs
• alcohol
• multiplicity

Notes

Notes

1. We acknowledge at this point that questions about both volition and agency in this context are complex and complicated (especially insofar as different areas of the law may conceptualize legal capacity differently, using different tests and tools for assessment). It is beyond the scope of the present paper to address these issues in depth, although it is an area we aim to explore in future research.

2. For clarity's sake, this article will use the expression ‘addiction’ to refer to the condition that is also at times called ‘dependence’ in legal documents, except where quoting those documents. While debate about the terminology rages in medical and psychological contexts such as in the negotiations surrounding the DSM-5 (Keane, Moore, & Fraser, 2011), the two terms are generally used interchangeably in legal settings, with variations depending on the prevailing medical terminology rather than on legal distinctions between the two.

3. All legislation is accompanied by an “explanatory memorandum” detailing the intended meaning and effect of the act. The “Second reading speech” is a (typically more lengthy) statement read into parliamentary record about the nature, purpose and intended effect of the bill. The speech precedes parliamentary debate about the legislation.

4. In Victoria, see, for example, Section 35 of the Interpretation of Legislation Act 1984.

5. A high-profile example of this is the Australian case of McCabe v British American Tobacco Australia Services Limited [2002] VSC 73, later overturned on appeal in British American Tobacco Australia Services Limited v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2002] VSCA 1.

6. See, for example, Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5.

7. For an example, see Askew v Kidd [2008] WADC 142.

8. For a discussion, see, for example, South Tweed Heads Rugby League Football Club Limited v Cole & Anor [2002] NSWCA 205; and Connell v Sund & Anor [2004] VSCA 228.

9. The relevant victims of crime legislation includes the Victims of Crime Assistance Act 1996 (Vic), the Criminal Injuries Compensation Act 2003 (WA) and the Victims of Crime Act 1994 (ACT).

10. See, for example, section 54 of the Victims of Crime Assistance Act (Vic), which requires the Court to consider the ‘the character, behavior (including past criminal activity and the number and nature of any findings of guilt or convictions) or attitude of the applicant at any time’ when deciding whether or not to compensate the victim.

11. In Australia, the Commonwealth Family Law Act 1975 is the primary law dealing with children's residence and contact issues. Under Section 60CA of the Act, the best interests of the children are paramount. Child protection is governed by the states and territories under separate legislation such as the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Children's Protection Act 1993 (SA), the Children, Youth and Families Act 2005 (VIC) and Child Protection Act 1999 (QLD).

12. See, for example, sections 62 and 281 of the Children, Youth and Families Act 2005 (Vic).

13. These issues are dealt with under Section 12 of the Assisted Reproductive Treatment Act 2008.

14. These matters will be discussed more fully in what follows, but legislation dealing with these issues includes the Severe Substance Dependence Treatment Act 2010 (Vic) and the Drug and Alcohol Treatment Act 2007 (NSW).

15. The relevant legislation includes the Guardianship and Administration Act 2000 (Qld), the Guardianship and Administration Act 1995 (Tas), and the Guardianship and Administration Act 1993 (SA).

16. For examples, see DQE (No.3) [2008] NSWGT 16 and also HGS [2012] NSWGT 28.

17. There is a substantial body of case law dealing with unconscionable conduct and undue influence Australia, but a key case is that of Blomley v Ryan (1956) 99 CLR 362. More recently, the High Court of Australia explored questions around gambling addiction and unconscionable conduct in Kakavas v Crown Melbourne Ltd [2013] HCA 25.

18. These matters are dealt with in more detail later in this paper, but relevant legislation includes the Disability Discrimination Act 1992 (Cth), the Anti-Discrimination Act 1977 (NSW), the Equal Opportunity Act 1995 (Vic) and the Anti-Discrimination Act 1991 (Qld).

19. The main document of relevance is the United Nations Convention Relating to the Status of Refugees (1951).

20. The relevant legislation is the Migration Act 1958 (Cth).

21. For an example, case where some of these issues were considered, see 0907840 [2010] RRTA 176.

22. The principal piece of relevant legislation is the Commonwealth Social Security Act 1991.

23. The distinction is important for several reasons. If a person is assessed as being eligible for a disability support pension, she or he has fewer responsibilities under the relevant legislation (such as the obligation to report to the relevant department regularly, or to actively look for work in order to receive benefits). As of the date of this article, the disability support pension is set at a higher remuneration rate than the general unemployment benefit. For an example of a case where assessment of the nature and level of impairment was in issue, see Quinn and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 62.

24. This includes details of the type of substance/s involved, the nature and length of time of the dependence, the basis upon which the practitioner asserts that the affected person is incapable of making decisions primarily due to substance dependence, and so on. The practitioner is also expected to document the basis upon which they believe treatment is necessary and the reasons why they believe no less restrictive means of treatment is reasonably available to them (Schedule 2, Severe Substance Dependence Treatment Regulations 2011).

25. See, for example, the DSM-IV-TR (American Psychiatric Association 2000).

26. This interpretation is supported by the minister's second reading speech, where a distinction was drawn between severe substance dependence and other kinds of substance use and/or problems associated with drug and alcohol use: “The bill does not target the issue of alcohol-fuelled violence or street drinking. Neither is the bill concerned with binge drinkers or those who become aggressive when under the influence of alcohol. These are all significant community issues that are being addressed by the Victorian Alcohol Action Plan, but there is no research evidence that such behaviors will respond to the involuntary treatment to be provided under the bill. Neither does the bill target people who use substances at dangerous levels over a long period of time”.

27. This mirrors practice in the UK, where the Equality Act 2010 specifically excludes individuals with an alcohol or other drug addiction (Flacks, 2012). Importantly, as Flacks (2012) points out, this exclusion is at odds with the two most widely-recognized systems for classifying mental health disorders at the time: the DSM-IV, mentioned earlier, and the International Classification of Diseases (or ICD), issued by the World Health Organisation (2007).

28. Methadone and buprenorphine were specifically excluded from the list of prohibited drugs, so that a person may still be discriminated against under the Act based on a methadone or buprenorphine dependence.

29. Although this would appear to be a logical conclusion based on the clear language of the amending section (and the second reading speech itself), it is also arguably supported by a legal doctrine known as noscitur a sociis. The noscitur maxim is a principle of statutory construction whereby the construction of a word or words within a statutory instrument is to be construed by reference to other words and phrases in the Act (i.e. through the broader context of the legislation). So, the absence of an exclusion for other types of addiction, and the specific reference to addiction to a prohibited drug likely reinforces the notion that other forms of addiction can be forms of disability under the Act.