Illicit drugs policy through the lens of regulation Alison Ritter, Director, Drug Policy Modelling Program NDARC FFDLR Public Meeting, Canberra 23 rd April, 2009

Regulation What is it? –Government achieving its goals (through law and rules, regulations) –Rules accompanied by mechanisms to monitor compliance –Efforts by the state to steer the economy Narrow definition –shaping market outcomes for public good Broader definition –‘steering the flow of events’. All forms of social control overlap with ‘governance’ Purpose = abatement or control of risks to society and to protect the public good

Shifts in regulation over time 1st wave – regulation (by government through law) up to 1970s 2nd wave – deregulation (allowing market forces to sustain economy, society) 1970s-1990s 3rd wave – ‘protective’ regulation/responsive regulation 1990s onwards Assumptions that have underpinned much regulatory thought: Regulation thought about in market terms & focussing on economic instruments; Regulation as primarily the responsibility of the state; Distinction between criminal law and regulation.

Newer concepts in regulation 1.Governance is changing and role of government changing (context: less rowing more steering) 2.Regulatory pyramid – responsive regulation 3.Business regulation and policing should be regarded as two branches of the same genealogy (Braithwaite) 4.The role of the state is limited and non-state resources (private, public, NGO) can be used in the futherance of society goals 5.Networked and nodal governance provide improved theoretical basis for understanding, interpreting and using effective regulation 6.Importance of globalisation as part of regulatory structures

Regulatory pyramid Escalating mechanisms “Soft before hard” 1.Voluntarism 2.Self-regulation 3.Economic regulation 4.Enforcement Ayres, I., & Braithwaite, J. (1992). Response regulation. New York: Oxford University Press.

Regulation and drugs? My purpose… To explore whether regulatory theory has anything to offer illicit drug policy Key issue: illegality of behaviour (so not thought about as a regulatory issue) Usual focus: international treaties and law enforcement Assumption: existing legal framework

Application of regulatory theory to illicit drugs policy Four areas: –Self-regulation (from pyramid) –Market regulation (from pyramid) –Non-state actors (hybrid governance) –Nodes and networks

Illicit drugs and regulatory pyramid? Voluntarism persuasion – prevention programs Self-regulation nil Economic regulationnil Enforcementcommand and control: law and treaties

Self-regulation Exercise of control (by companies, individuals) for the public good Self regulation in industry as a conflict of interests (e.g. alcohol advertising) Drug markets effectively self-regulating Drug users self-regulate: use and harms Self-regulation from perspective of consumer Importance of a powerful consumer movement

How can the state mobilise self-regulation? Possibilities: 1.User groups (eg AIVL) History Regarded as ‘fringe’ Within regulation – could be given legitimacy as agents of regulation Funding and role clarity required 2.Changing consumer preferences eg: Non Injecting Routes of Administration (NIROA) – research evidence to support (Hunt; Casriel; des Jarlais)

Self-regulation Not a new idea: microgovernance (Burris) Promoting health and security by mobilising the community’s own knowledge, capacity and resources Lower costs Regulatory theory suggests it may be potent & lower cost to govt than regulatory strategies at top of pyramid (law enforcement). Risks State abdicates responsibility Further marginalisation

Economic regulation The global market is huge: –Global narcotics trade $320 billion (US) 2005 estimate –Illegal traffic in human beings $32 billion –Trade in illegal firearms $1 billion –Illicit drug industry turnover larger than the international trade in iron, steel and motor vehicles; –Same size as the international trade in oil and gas The drug market is dynamic and diverse The usual market-based regulatory approaches (e.g. taxes) cannot be applied.

Market-based mechanisms? Using market forces on sellers –e.g. provision of needle/syringe at point of sale Using market forces on buyers –e.g. pill testing –evidence of effect on markets (Spruit; Kriener)

Role of non-state actors “the state cannot, and should not, be the only or indeed primary regulator” (Grabosky) Shearing: we must move out of a “state-centred view of governance…a particularly tenacious paradigm that needs to be eclipsed” Terms for harnessing of non-state resources: –Co-production –Multi-lateralisation –Interagency/multi-agency partnerships –Third party policing –Hybrid governance

Illicit drugs - much use of non-state actors, but no theory Examples: Precursor chemical diversion: police working with the pharmaceutical industry, chemical manufacturers to prevent diversion Project Stop – pharmacy monitoring system NGO service providers, families and friends, local communities Industry: drug testing in the workplace

Engaging non-state actors legitimises this as part of new regulatory framework, thereby allowing meta-regulation of the non-state actors Reframing as a whole of community concern Illicit drugs regulation may by necessity need these mechanisms and mobilised resources precisely because the illegality of the behaviour placing the state in a position where it may not be able to operate other than through ‘command and control’.

Issues Implications of this “pluralisation” are far- reaching: –Role of the state –Role of industry/private sector –Notions of ‘public good’ –Competing objectives amongst actors –Definition and activity of ‘governance’ But here to stay – worth investing in the theory

Nodes and networks Nodes, networks and webs of influence popular ideas within current regulatory theory (Burris; Braithwaite; Wood and Shearing) because of the diversity and dispersal of actors and agents of change Governance is now more accurately theorised and described as networks rather than simple hierarchies Nodal governance enables examination of how regulatory strategies play out and how the whole network of regulatory actions and multiple actors operate in synergistic and non- synergistic ways. In this complex and fluid environment, illicit drugs policy could gain greater coherence and improved impact if considered in the context of regulatory theory around networks and nodes (Burris; Braithwaite).

Other things More that regulatory theory and practice can offer illicit drugs: Regulatory failure (e.g. tobacco growers and regulation) Strengths-based regulatory pyramid (rewarding behaviour) Globalisation ‘Weak and failing states’ (DuPont; Wood) Security-development interface (Duffield)

Conclusions (1) Regulatory theory has much to offer illicit drug policy Shift thinking from binary (persuasion & ‘command and control’) to pyramid of responsive regulation Self-regulation has not received serious consideration but holds potential Regulation through the operation of a market is standard regulatory activity. Application to ‘black’ market plausible with imagination (e.g. pill testing kits) Role of non-state actors – many examples. Regulation gives theory to this work/practice (e.g. meta-regulation)

Conclusions (2) Provides a theoretical framework (often sorely lacking in illicit drugs) Regulatory theory enables the opportunity to explore unchartered areas: new ideas More thinking to be done …

Acknowledgements The following regulatory scholars were invaluable resources in shaping the work in this paper: John Braithwaite, Valerie Braithwaite, Peter Grabosky, Clifford Shearing and Jennifer Wood. Regulatory Institutions Network, the Australian National University Further information Assoc Prof Alison Ritter Drug Policy Modelling Program, Director National Drug and Alcohol Research Centre UNSW, Sydney, NSW, 2052, Australia E: T: + 61 (2) DPMP Website: