Note: This is an archive of both published and unpublished papers.
It should be understood some of this material does not contain up-to-date information and is included only for potential historical value or research purposes. Some of these topics are areas of recent and ongoing research interest.
This page encompasses areas of interest involving a number of groups whose behaviour and/or lifestyles have been considered at particular times to be immoral or deviant, such that their activities should be controlled because they are perceived as posing law and order or public health risks if unregulated. This research examines approaches of regulation that may have operated or continue to be deployed, based on public health powers, of the development of mechanisms and systems of control and monitor these particular groups.
Drug users
A public health system of control and registration of users of heroin and other opioid drugs has operated in WA, as noted in the preceding article, since the late 1950s, which was modelled on a similar arrangement which had operated in the United Kingdom.
Swensen, G. (1994)
Drug problems in Western Australia. A review of non criminal mechanisms to regulate drug users by use of the Health Act 1911. Murdoch University Electronic Journal of Law, 1994, 1(3).
This article examined a system established under the Health Act 1911, which has operated in WA since 1958 and requires a medical practitioner to notify the Executive Director Public Health if the doctor is aware or suspects that a person is addicted to a drug specified in the Eighth Schedule of the Poisons Act 1964. (Eighth Schedule drugs are defined as being drugs of addiction.)
Whilst there is a range of drugs and substances whose use can result in dependence, such as tobacco or alcohol, the ambit of the registration was restricted largely to both licit and illicit opioids and analgesic drugs.
The paper examines the administrative procedures instituted under the Drugs of Addiction Notification Regulations 1980 and whether the rules of procedural fairness could be applied to the regulations and the associated Register of notified addicts.
Click here to view or download a PDF version (231k) of this article.
Post 1990s
A series of reviews were conducted into some of the precepts of this system in the 2000s triggered by the Galbally review, which had undertaken a wide ranging and comprehensive inquiry into the Drugs and Poisons and Controlled Substances legislation in all Australian jurisdictions. This was published as a two part report in January 2001 – Part A and Part B.
The Galbally review was part a much broader inquiry of reform under the National Competition Policy in Australia which examined a wide range of issues of concern to industry protection, efficiency and public interest.
An extract from the Executive summary provides a sense of how the review sought to justify the continuation of controls: (We) are satisfied that most of the current controls provide a net benefit to the community as a whole in relation to the use of substances that have the potential to cause harm. The recommendations for change are in the areas of increasing national uniformity, improving efficiency, reducing the level of control where possible, and improving the net benefit to the community as a whole of those controls which rely on professional practice to be effectual.
Freedom from harm to the individual and the community as a whole is the key objective sought from the controls. The Review considered the range of harms the legislative controls were put in place to alleviate. It established that the use of certain poisonous substances, although of benefit to the community, can and do result in harm, and that this would be expected to worsen under unrestrained deregulation.
Effort needs to be placed in reducing the current level of harm and the Review considered alternatives to regulation to minimise the restrictions on competition while achieving this, particularly mechanisms to improve the information available to consumers.
The harms from inappropriate use may lead to hospital, medical and social costs. The costs have an impact on government, individuals and the community as a whole.
These harms include accidental and deliberate poisoning, medicinal misadventures and abuse. Because, drugs, poisons and controlled substances are widely used in the community, with most Australians using one or more every day, the Review concluded that the total potential for harm warrants acceptance of reduced competition and higher costs in some circumstances.
Therapeutic jurisprudence
Swensen, G. (1995).
Drug offender diversion: A review of some of the issues
This unpublished paper discusses an area of the use of legal mechanisms, loosely referred to a therapuetic jurisprudence, which utilise arrangements oversee by the legal system, such as informal and formal pre-trial diversion and post-conviction schemes, to monitor drug dependent offenders.
This paper canvasses a number of advantages of these schemes, including minimisation of the stigma and ostracism associated with conviction, as well as reservations, including they may be experimental in nature, been setup for non-therapeutic purposes or to access funded health services.
Click here to view or download a PDF version [176k] of this paper.
Prostitution
There was renewed interest by legislators in the late 1980s in reform of the law in relation to prostitution (ie s*x industry), concerned with either retention of the State’s “containment policy” which retained police oversight or develop a public health-focussed model of regulation through decriminalisation.
There had been a number of investigations concerning prostitution in WA over some time and of the role and scope of the police and criminalisation of this area of public health. In 1976, there was the Royal Commission on the administration of the law relating to prostitution, chaired by Hon JC Norris, which was concerned with differences and tensions in the WA Police Force about this policy.
Subsequently, some of these concerns formed part of the broader investigations that occurred in 2004 Kennedy Royal Commission, which also considered other areas of “victimless crime”, such as use of drugs and gambling.
In 1990 the Community Panel on Prostitution, chaired by Beryl Grant, conducted a community consultation. Among its recommendations was that the WA government set aside the long-standing police overseen containment policy.
In 1986 the Human Rights Commission released a discussion paper – Prostitution and human rights: A Western Australian case study, undertaken by Dr Judy Edwards.
In spite of these inquiries, the first reform occurred with the Prostitution Act 2000 which had a narrow scope related to matters such as underage work, advertising and management.
The Gallop Labor government introduced the Prostitution Control Bill 2002 which proposed a decriminalisation model of licensing overseen by a Prostitution Control Board and to repeal the earlier 2000 law. This reform failed to gain support and lapsed.
A major study was undertaken in 2010, chaired by Basil Donovan, The sex industry in Western Australia, commissioned by the WA government, which supported further attempts to reform the law in WA, such as the Prostitution Bill 2011.
There have also been a number of reviews of efforts to reform the law in WA.. These include by Crofts, R. and Summerfield, T. (2008) Red light on sex work in Western Australia. Alternative Law Journal, 3(4) 209 – 213.
However, the current situation is that sex work in WA is not decriminalised and there are a number of activities which attract criminal penalties such as advertising, brothel keeping, street-based sex work, escort services, pimping, etc.
For example see Andrew Williams, Laws relating to sex work (prostitution) in Western Australia.
Swensen, G (1989).
To regulate or not: Politicians, prostitution and the police – Western Australian snapshot
This paper draws on materials that the author had gathered up to the end of 1980s around th time when the former Burke Labor government had also flirted with the idea of reform.
The research that follows is a reminder of the gap between rhetoric and reality when governments, regardless of political persuasion, to investigate and consider adopting reforms to regulate the sex industry.
Click here to view or download a PDF version (195k) of this article.
Swensen, G (1990)
Submission to the Community Panel on Prostitution.
This was submitted through the WA Branch of the Australian Association of Social Workers which broadly supported the objectives and reforms outlined in the discussion paper prepared for the Western Australian Women’s Advisory Council to the Premier: Bryski (1988).
It sought to extend the scope of debate about prostitution to include both male and female workers in the sex industry because if legislative reform was based on the proposition that prostitution was a consequence of unequal relationships between males and females it would avoid the issue of male prostitution.
Click here to view or download a PDF version (937k) of this article.