NSW Government Proposes to Divert Certain Drug Offenders Away From the Criminal Justice System

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Illegal Drugs

The New South Wales Government is proposing to implement a new program across the state, which would give some drug offenders a second chance.

It’s a sharp departure from the hardline stance of successive state governments, which have refused to decriminalise let alone legalise drugs and preferred a zero tolerance approach to drug possession offences.

‘Second chance’ for some offenders

Under the proposal, those who are caught with a small amount of illegal drugs would be referred to health or social intervention programs, rather than fined or sent to court where they would face a criminal conviction.

The scheme would l expand the current system of fines handed out for the possession of small amounts of illegal drugs such as ecstasy, cocaine, and heroin, and build on the existing Cannabis Cautioning Scheme which gives police the discretion to caution certain adult offenders.

NSW Cannabis Cautioning Scheme

Under the current Cannabis Cautioning Scheme in New South Wales, police may choose to issue a ‘caution’ instead of issue a fine or a court attendance notice, meaning the person does not need to pay a financial penalty or front court and go through the criminal justice system.

The scheme also cuts down on police and court resources, freeing up these government bodies so they can focus on what many consider to be more important work.

Only two cautions can be given to each person, and he or she cannot be cautioned if they have prior convictions for drug offences, or violent or sexual offences. The amount of cannabis must also be 15 grams or less.

The scheme recognising that fining or arresting and bringing people before the courts can be counter-productive, potentially putting them in situations where they are unable to keep their jobs, or otherwise imposing financial stress on them.

The scheme does not apply to those who are found to be manufacturing or supplying cannabis.

What is the maximum penalty for drug possession in NSW?

Drug possession carries a maximum penalty of two years imprisonment and/or a $2,200 fine. under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW).

While only a fraction of people – mainly repeat offenders or those with larger quantities of drugs – are sent to prison for drug possession, all convictions carry a criminal record, which can have serious and far-reaching consequences for employment, travel and the stigma attached to them.

A criminal conviction is not recorded if a person who pleads guilty or is found guilty in court of drug possession is given a section 10(1)(a) dismissal, a section 10(1)(c) bond which requires compliance with an intervention program or a conditional release order without conviction.

Diverting offenders away from the criminal justice system

The proposal to divert those who possess small quantities of illegal drugs away from the criminal justice and towards treatment follows recommendations by the Special Commission Of Inquiry Into The Drug Ice, which called for a legislated police diversion scheme for personal drug use and more resources for specialist drug assessment and treatment services.

Ice consumption is relatively high in New South Wales, and, because of the nature of the drug, which induces aggression and is highly addictive, young people who try it, can quickly find their lives devastated.

A more balanced approach to drug offences will save lives

Experts have long agreed that Australia would benefit greatly from taking a different approach to the issue of drugs, balancing appropriate penalties for serious criminal offences with the recognition that drug addiction which commonly leads to drug offences, is a health issue.

Over time, it has become very clear that the current punitive approach is not working. In many countries, decriminalisation strategies have been overwhelmingly successful.

Previously the NSW Government has steadfastly rejected calls to take a different approach, including introducing harm minimisation strategies, such as pill testing at music festivals, even after they were recommended by Deputy State Coroner Harriet Grahame in her final report after an inquest into the drug-related deaths of  six festival-goers between December 2017 and January 2019.

The new bill, which is reportedly being worked on by Attorney-General Mark Speakman and Health Minister Brad Hazzard, will “tweak” proposals which have previously been put to cabinet. While these proposals had broad cabinet support, the main two opponents, former

Premier Gladys Berejiklian and former deputy premier John Barilaro, have now resigned, paving the way for the proposals to be reviewed and reworked.

In recent days, the new Premier Dominic Perrottet said drug rehabilitation would be a major focus of his government, and he was prepared to back an approach which gave offenders caught with small amounts of illegal substances a second chance.

The Attorney-General also recently told the media: “We must find a better way to deal with low level drug offenders that helps them kick the habit, before it potentially destroys their lives. And we must ensure that there are sufficient and appropriate health services available to support them when they do.”

“What is clear is that we need to do something different in NSW with drug policy. We know locking people up and throwing away the key is not the answer,” he said.

Drug use in New South Wales

It is a pertinent time for the government to be reconsidering drug policy. As the state begins to open up, and to manage the Covid-19 virus over the longer term, events and music festivals will eventually make their way back onto our social calendars. It would be foolish to think that somehow during months of lockdowns drugs have disappeared from the social landscape.

The ACT has just announced funding for a six month trial of a fixed-site pill testing service in Canberra. Pill testing is still not on the Government agenda in NSW, but the recently announced incremental changes to policy are a good step forward.

The most recent National Drug Strategy Household Survey (NDSHS 2019) reported that an estimated 9.0 million (43%) people aged 14 and over in Australia had illicitly used a drug at some point in their lifetime (including the non-medical use of pharmaceuticals) and an estimated 3.4 million (16.4%) had used an illicit drug in the previous 12 months.

In 2019, the most common illicit drug used in the previous 12 months was cannabis (11.6%), followed by cocaine (4.2%) and ecstasy (3.0%)

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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