Q & A: Nicholas Cowdery

Name: Nicholas Cowdery

Role: Ex. NSW Director of Public Prosecutions (17 years) / President of the International Association of Prosecutors (6 years). 

Date: June 2011

Criminal law has no business trying to control a market. Can it modify supply and demand? Well, no it can't. It can only clean up after the event.

-Nicholas Cowdery - IQ² debate. 2011

People like Nicholas Cowdery were once rare but are becoming more common every year. I'm talking about those in very senior positions working for the government, politicians, law enforcement officers, judges, economists etc. who want an end to dangerous global drug laws that cause so much carnage each year. And Nick has been warning us about this for a long time. In 2001, he wrote the book, Getting Justice Wrong: Myths, Media and Crime which clearly exposed the problems we all encounter due to global drug policies.

The book arose, in fact, from a suggestion by the publishers that some papers and articles I had produced be collected and reproduced in book form. The underlying premise of this collection of chapters is the risk to justice – the risk of getting justice wrong – posed by the influence of some sections of the media on policy making and legislating by politicians. I am also concerned, more generally, with policy being based other than on fact and reason. Without careful analysis and a critical assessment of the publications of talkback radio “entertainers” (as they like to be described), the tabloid press and low IQ television, we are at risk of the rule of law being subverted for motives that are irrelevant to the proper process of law-making – essentially, motives of profit for the commentators.

They are not accountable to the community. They are not concerned with the good government of the people, with what is in the public interest (properly understood) rather than what is of interest to the public. They appeal to the emotions of their audience with partial truths and sweeping generalisations about matters that are topical at the time. They deliberately adopt extreme positions on simple propositions. They perpetuate some of the myths about crime, especially, that are reinforced at every state election.

-Nicholas Cowdery - Lecture at the University of New England, Armidale, May 2001

You really have to respect Nick for his commitment while working under less than ideal conditions. How many people in his position would criticise a strategy that is championed by so many in his industry? But what really makes Nick's views so important is his credibility. Being a QC, receiving an Order of Australia from the Queen, serving as the NSW Director of Public Prosecutions for 17 years and spending six years as President of the International Association of Prosecutors should tell us that his legal views are more than likely correct. The point is, when someone with these credentials constantly tell us that we are making a mistake by following a set of laws that have failed worldwide for 40 years, then maybe we should listen to them. 

About Nicholas Cowdery

Nicholas Richard Cowdery AM QC (born 19 March 1946) was the Director of Public Prosecutions for the Australian state of New South Wales. He held the position from 1994 to 2011.[1] Cowdery also served as President of the International Association of Prosecutors from 1999 to 2005.

Cowdery attended Wollongong High School and completed his secondary schooling at the Sydney Grammar School. He graduated in Arts and Law at the University of Sydney where he was a resident of St. Paul's College.

In 1971, he commenced practising as a public defender in Papua New Guinea after admission as a barrister in the same year. Cowdery entered private practice in 1975 where he concentrated in criminal law, common law, administrative law and some commercial law.

He was appointed Queen's Counsel in 1987, served as an Associate Judge of the District Court between 1988-1990. Cowdery was appointed the Director of Public Prosecutions for New South Wales in 1994. He was elected President of the International Association of Prosecutors in 1999 and re-elected to a second three-year term in September 2002.

He wrote Getting Justice Wrong: myths, media and crime

-About Nicholas Cowdery from Wikipedia

NOTE: I want to thank Nick for participating in this Q&A. I didn't really expect someone like Nicholas Cowdery to even respond to my email let alone agree to answer some questions. But as usual, I was wrong. Nick responded in 24 hours and said he was happy to participate. Thanks Nick.

QUESTIONS

Has being so adamant that the "War on Drugs" has failed been a problem especially since you held such a prominent position as the Director of Public Prosecutions in NSW for nearly 17 years?

No. As DPP it was my duty, which I carried out, to apply and enforce the law with the resources that I had available and within the rules and guidelines that applied. However, in doing so I was confirmed in my view that as a society we could address drug issues better. It is quite possible to apply oneself fully to the operation of a system, yet believe that the system should be changed. Legal training equips one well for such mental gymnastics.

From your experience, do many others in the legal profession feel the same as you about drug policy?

Yes, from my experience a very large number in all areas of practice.

From your experience, do many politicians you know actually believe the hype that the war on drugs is winnable?

No – but their main concern is re-election and they are loath to publicly express their true views unless they can be assured that a substantial portion of the electors will agree.

Did the dispute between you and Attorney-General John Hatzistergos have anything at all to do with your out spoken views on changing drug laws?

No.

You have publicly criticised the "tough on crime" agenda used by politicians. Do you personally know any politicians who sincerely object to that strategy?

In November 2010 Greg Smith stated publicly that there would not be a “law and order auction” election in March 2011 and there was not. I think many politicians (and I have spoken with a few) see such campaigns as fruitless.

What are your thoughts on The Greens changing their drug policy to be more in line with the major political parties?

No doubt influenced by other considerations of political alliances, etc.

Do you feel frustrated by the public’s ignorance regarding drug myths and their willingness to accept misinformation from the government and media outlets?

It is not easy to gauge the level of understanding or of ignorance in the community generally. We become aware of these things only when something is published or stated at a meeting, etc. Ignorance about any issue in society can only be addressed by providing as broadly as possible reliable, accurate information. Politicians spread information selectively for their political advancement, as they see it (by and large). The tabloid media create conflict and controversy to sell advertising. The public are more easily exposed to those sources of “information” than to credible sources that may require some extra effort to uncover and to fully comprehend.

Do you feel it’s someone right to take illicit drugs (or to put whatever they want into their own body?)

Generally, yes – if they are able to make an informed choice about it. However, members of a society also have a responsibility to obey the laws of that society made in their name and for their benefit.

Do you or have you used illicit drugs recreationally?

No.

Do you think a needle exchange program is needed in prisons?

Yes.

The support for the proposed safe injecting room in Richmond has surprised many people. Why do you think there has been such a rapid change of attitude considering the recent controversy over the Kings Cross MSIC?

I think the controversy over such centres has subsided as the evidence has shown the benefits of such facilities – and that has taken 10 years for the Sydney one. Sydney’s is only one of 91 such centres worldwide – I think they are catching on and for good reason – they work. (But there is still the legal anomaly of requiring people to break the law to obtain their own drugs to bring in to the centre.)

Do you think Victorian Premier, Ted Baillieu will eventually agree to a safe injecting room in Richmond?

I don’t know – but a change of approach by the government has been made more difficult by its earlier flat rejection of the idea.

Other Opiate Maintenance Treatments(OMT) in use or on trial in Europe, Canada and the U.K have had very successful results. Should other forms of OMT be trailed in Australia like slow release oral morphine, injectable hydromorphone, dihydrocodeine, injectable methadone and prescription heroin?

I don’t really know enough about such programs and their experience to be able to comment – but prescription heroin has produced excellent health, social and law enforcement results, for example, in Switzerland and we should certainly trial that.

A report was just released titled, Randomised controlled trial of dexamphetamine maintenance for the treatment of methamphetamine dependence. As far as I can obtain, it was not a publicly known trial but the results were spectacular. Methamphetamine/amphetamines are not technically addictive but can result in severe physiological dependancy. What are your thoughts on this compared to substitution programs for addictive drugs like opioids/heroin?

This is really for a medico to comment on; but I suppose that addiction and dependence, both being health consequences, should be treated, if appropriate, by controlled substitution programs.

Do you have any predictions for the future of Australia’s drug policy over the next 10 years?

Not a prediction, but a hope that, slowly, the public voice will grow strong enough to give politicians the courage to explore alternatives, even on a trial basis in some areas. A Portugal approach could be a good beginning. One of our major difficulties, however, is obeisance to the USA and the interpretation given to some international instruments that are said to prevent us from following a more rational course.

What are you're thoughts on the story of Jade Lewis at the IQ² debate? Do you feel she actually put forward any valid reasons not to legalise all drugs or was it simply a sad story that luckily had a positive conclusion?

As I said just before she spoke, if our approach had been adopted, then she may not have had to make the journey that she did. She told her story, that’s all. It is a sad story (that many more people could tell in one way or another) but in her case it has had a better conclusion than some others and she is to be praised for the work that she is now doing in community education. But there is nothing in the story that speaks against the decriminalisation, regulation, control and taxation of all drugs. Indeed, she demonstrated just how easy it is to obtain drugs, become addicted to them and stay on them under the regime of prohibition without being able to access proper assistance and treatment. If anything, hers was a strong argument against continuation of the present approach.

Before the IQ² debate started, 32.3% of the audience were undecided on whether all drugs should be legalised. After the debate, only 8% remained undecided. Those against increased by 2.1% while those in favour rose by 22.2% That's a difference of about 10-1 who changed their mind after the debate. Does this surprise you?

No. A rational audience.

What single factor do you consider to be the most convincing reason to change our drug policy.

Two factors – the futility and wastefulness of trying to use the criminal law to control or change a well-entrenched market; and the incidental harms that our present policy is causing. Isn’t one description of insanity doing the same thing over and over and expecting a different result [or something like that]?

Gary Christian from the anti-drug NGO, Drug Free Australia (DFA) regularly states that the government's 2007 household survey shows that 97% of Australians do not want drugs legalised. Do you think that most of the public who naturally reject drug legalisation after constantly being bombarded with most of the media distorting the facts about drugs and politicians pushing their "Tough on Drugs" message might vote differently if they attended the IQ² debate where facts, history and evidence are presented in an intelligent and logical manner?

The answers obtained in surveys are influenced by the way in which the questions are asked, as any pollster well knows. “Legalised” is a word that can mean many different things to different people; but in the mind of the ordinary citizen it may well mean releasing all restraints so as to proliferate the unattractive aspects of drug use that are mostly hidden (or at least suppressed) at present. And there are different requirements for different drugs that would be taken into account in any move to legalisation (or decriminalisation), which was probably not canvassed in the survey.

The answer to your question is yes. People generally are rational beings, open to persuasion by evidence and logical argument – juries act that way every day. The public should not be underestimated and all they need is accurate information on which to base proper conclusions.

A similar event to the IQ² debate, The Festival of Dangerous Ideas took place at the Sydney Opera House in October 2009 and included the topic, Make All Drug Use Legal. One of the speakers, lawyer, Greg Barns blamed the media for most of the problems associated drugs. Was Greg Barns right to blame the media considering the level of misinformation, drug hysteria and propaganda they produce daily?

I am not quite sure I understand the question. I am not familiar with the Barns presentation or how he put his argument. It is not the media that causes drug problems, it’s the law. But you are right in that much of the tabloid media, especially, misinforms the public.

What do you think of politicians being labelled “Soft on Drugs” when they suggest alternatives to current drug strategies?

It’s a childish and simplistic reaction that really says nothing. It’s just a slogan that the user intends to be offensive. This is not a matter of being hard or soft, it’s a question of being smarter and more effective in the way we address a problem in society. The messages that should be sent when alternatives are suggested are that: 1. When we do something that does not produce good outcomes, we should have the sense to admit, on the basis of that experience, that we may be able to do better and to revise our course; 2. When we can see that what we are doing is actually creating harm, we have an obligation to try to prevent that harm and to proceed differently; and 3. Some things are immutable – there will always be a demand by humans for reality-altering substances and there will always be a supply. We need to control that market (and its participants) and remove the incentive for a black market to exist (ie criminal profits).

Finally, if you were Prime Minister Nicholas Cowdery and you could change one law relating to drug policy or drug treatment, what would it be?

[The party system would probably defeat me] – but changing the present approach requires attention to a whole suite of laws in a coordinated and careful, thorough way, proceeding one step at a time. There would be some trial and error – but progress cannot be achieved in that way unless there is a trial.

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