NSW’s Shift to Decriminalise Illicit Substances

Co-authored by: Grace Jolly

KEY TAKE OUTS:

• The NSW Government is set to introduce a complete shake-up of current existing NSW drug laws by broadly expanding the pre-court diversion scheme for small amounts of illicit substances.
• A person will be able to receive up to two fines and be directed towards NSW health programs rather than facing criminal penalties.
• This reform does not mean illicit substances are legalised, but how will it impact the market for these substances?

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The NSW Parliament is attempting to introduce a two-strike policy for persons caught with small quantities of illicit drugs for personal use. Persons found with substances such as ice, cocaine and MDMA will merely receive up to 2 fines and be provided access to NSW health programs rather than being given a Criminal Attendance Notice to attend court.

In supporting this scheme, the NSW Health Minister stated that drug addiction and use “are very much health issues, which are far better addressed through health support outside the courts and criminal justice systems”.

The word ‘decriminalisation’ means removing all criminal penalties for drug use and possession, although fines or other penalties are still able to be issued. By implementing this program, it does not mean drugs are legal but rather regulations are being established to manage how it can be produced, consumed, and sold, much like alcohol or nicotine.

What Does the Scheme Consist Of

Police will be provided with the ability to issue up to two $400 fines to persons caught with small qualities of drugs which are the equivalent to a possession offence. From here, if the person successfully completes a “tailored drug and alcohol intervention” program they will be able to have their fines completely wiped. If this program is not completed, Revenue NSW would enforce the fine.

This scheme could see thousands of illicit drug users avoid criminal penalties altogether.

It has been said that this scheme is a fall back from recommendations from the Special Commission of Inquiry into the drug ice, led by Professor Dan Howard. This inquiry made recommendations surrounding the complete discrimination of drug possession as well as the introduction of pill testing at music festivals.

He states that “by not introducing decriminalisation we’re assisting the suppliers. If we’ve got proper treatment programs in place, that will lessen demand”. It is said without decriminalisation, our court system is clogged up with over 20,000 cases of personal use charges of illicit substances.

In September 2022, former NSW premier Dominic Perrottet voiced his plans for expanding a pre-court diversion scheme, however, this decision was delayed until after the election as NSW Police Commissioner and the NSW Chief Health Officer were asked to investigate the scheme before being officially announced. Their advice did not obstruct the reform process, and additionally, sources have confirmed that the NSW Police did not offer any advice that would discourage or oppose the proposed change.

The current government has not supported the introduction of pill testing in NSW before the up-and-coming festival season, saying Labor will not consider it before a drug summit can be held during their first term of government.

A drug summit will provide an opportunity for legal professionals, health experts, police, and academia to provide their thoughts and opinions on this approach to drug policy.

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Why introduce this scheme?

It has been reported that Australia is now the highest per capital user of cocaine in the world, with an estimated 5.6 tonnes being consumed yearly.

NSW is the only Australian jurisdiction without an official diversion program where access to healthcare services is provided, instead of penalties in the judicial system.

Why should NSW implement this scheme?

Criticisms have been made that NSW needs to catch up with the rest of the world.

Professor Alison Ritter is a specialist at the University of NSW drug policy, she has said that “NSW is a long way behind other jurisdictions. There are countries that have decriminalised the personal use of drugs, this is not radical, it is not new”.

Portugal is currently the leader in drug reform, with decriminalisation being introduced in 2001.

Following suit, Oregon in the USA decriminalised drug use in 2020, with a scheme that offers persons caught to attend a drug screening and assessment, or a fine.

Professor Ritter proclaims that critics have misunderstood the entire purpose of decriminalisation, it is not aimed at reducing nor will it increase drug use, but rather it is used to remove the burden on the criminal justice system.

Further, has ACT decriminalised drugs including cocaine, ecstasy, ice, heroin, LSW and amphetamines less than 1.5 grams, by removing all criminal penalties.

Criticisms

One major critic of the implementation of this scheme was voiced by National Drug Research Institute Adjunct Professor Nicole Lee. She said that these diversion models risk wasting treatment resources with infrequent users taking up treatment spaces.

Further Professor Lee warns that the $400 fines can be affected by bias, “fines depend on how hard-line the police officer is or whether they have had a bad day”, and “they aren’t actually deterring people from using”.

In summary, the proposed Bill currently in Parliament has its advantages and pitfalls, as the state attempts to catch up with global trends, this reform needs to have careful consideration before implementation.

How can Coutts help?

At Coutts, we offer expert legal insights and guidance tailored to these evolving regulations. Whether you have questions about the new diversion schemes, need representation, or seek a comprehensive understanding of these changes, our team is at the ready. Contact Coutts today and let us be your beacon in these changing tides.

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