Thresholds: First gradually, then suddenly?

Writing in the context of proposal to expand the decriminalisation of illicit drugs in the Australian Capital Territory, Australia's smallest and most progressive jurisdiction, this article explores the key question of the use of quantitative thresholds to determine the level of drug use distinguishing personal use from trafficking. Recent literature demonstrates the use of quantitative thresholds has yielded highly divergent approaches in jurisdictions around the world. The literature also points to the underlying challenges involved in evaluating whether it is appropriate to employ quantitative figures to make that distinction, and if so how and to what ends. Harris (2011) goes so far as to describe 'conviction by numbers' as a 'lazy shorthand' that may exact an 'immeasurable cost of injustice' (3). Yet practices which do not rely on quantitative measures are at real risk of exacerbating discretionary judgments by police and prosecutors that may well result in discriminatory application of the laws. The basis on which the balance between these two countervailing considerations is struck in these discussions is not always clear. The paper focuses first on the merits of adopting an approach based on quantitative thresholds and argues that the implications of applying legally mandated drug quantities is in fact not as cut and dried as many authors have assumed. There is an important 'middle way' between the rote application of quantitative measures and their abandonment. This middle way has previously been ignored. The article then addresses exactly how and on what basis quantitative thresholds should be determined if they are to reflect and advance harm reduction principles. Finally, the paper considers and critiques arguments that quantitative thresholds should be set not only by reference to the consumption patterns of users but also in relation to the relative harm of particular substances. As a whole, the essay aims to contribute to a broader international literature on thresholds, a vexed question which matters not only in Canberra, but around the world.