Legal profession welcomes changes to NSW drug laws

The NSW Government is expanding drug diversion programs for people caught with small quantities of illicit substances to reduce contact with the criminal justice system and ease the burden on police and courts, as recommended by the landmark Ice Inquiry.  

Under the changes to be introduced in Parliament this week, NSW Police will have the ability to issue up to two $400 fines to people caught with small amounts of drugs including ice, cocaine and MDMA.  

The “two strike policy” would see thousands of people referred to health programs, rather than face criminal charges. This will not apply to any serious drug offences like drug supply. 

Fines will be waivered if the user completes a tailored drug and alcohol intervention.  

Both the Law Society of NSW and the NSW Bar Association have strenuously advocated for action on the recommendations of the Ice Inquiry since they were handed down in February 2020, which included expanding pre-court diversion programs. 

President of the NSW Bar Association Gabrielle Bashir said this move is a “positive development” on Professor Dan Howard’s evidence-based recommendations that will minimise harm and ease burdens on NSW Courts.  

“Drug use and addiction are health issues that are better addressed through health support outside the criminal justice system,” said Bashir. 

“The NSW Bar welcomes the introduction of a pre-court diversion scheme for people found in possession of small amounts of illicit substances, and we will continue to advocate for the introduction of pill testing for the upcoming music festival season, to reduce the risk of these substances to our young people. 

“It is vital to ensure the new scheme is properly supported by resourcing of specialist drug assessment and treatment services, as recommended by the Ice Inquiry. This should consist of health interventions which are available throughout NSW, including First Nations communities in desperate need of culturally appropriate treatment and support services.” 

Bashir said she hopes to see training and oversight of how NSW Police exercise their discretion when issuing fines.  

This move is also consistent with the Law Society President Cassandra Banks’ priority for 2023 to advocate for increased diversion for vulnerable cohorts within the criminal justice system.  

Premier Chris Minns has been resistant to backing reform since coming into power, saying his Government would not consider changes before holding a drug summit. But the Government has been under pressure from other political parties and agencies to support reform and implement changes recommended by the Ice Inquiry.  

Attorney General Michael Daley said he anticipates this scheme will divert thousands of people away from the court system each year, including hundreds of First Nations people. 

“Formal contact with the criminal justice system only increases the likelihood of reoffending, and this has knock-on effects on people’s employment, their housing and their relationships,” Daley said.  

“We want to see people receive the health support they need rather than see them caught up in the criminal justice system. 

“It is still an offence to possess and use illicit drugs and the NSW Government supports people, their families and communities impacted by illicit drugs. 

“This approach to personal drug use and possession will also reduce pressures on the Local Court system and free up its resources to deal with more serious issues.” 

CEO of the Aboriginal Legal Service (NSW/ACT) Karly Warner said the proposed drug reform legislation is a “welcome step” but warns that Aboriginal people will continue to be disproportionately harmed. Warner said the legislation could be strengthened by reconsidering reliance on fines, which aren’t means-tested.

“We all want to see smart and realistic drug laws that result in better access to healthcare for people struggling with addiction, fewer lives at risk behind bars, and safer communities. This new legislation is a step in the right direction but it needs to be strengthened to close the gap,” Warner said.

“We already know police are disproportionately charging Aboriginal people found with cannabis rather than diverting them from court under the existing cannabis cautioning scheme. Whenever diversion is left up to police discretion, we see our communities bearing the brunt of charges. This evidence tells us that this will also be a problem in this new scheme.

A recent NSW Bureau of Crime Statistics and Research study found that 12 per cent of Aboriginal adults with a small amount of cannabis were cautioned by NSW Police, compared to 44 per cent of non-Aboriginal adults.

“We can’t rely on fines to address issues of public health. Look at where that got us during the pandemic: Aboriginal communities and households on low incomes were burdened with disproportionate debt, and many of them ended up with criminal charges after attempting to challenge that unfair debt,” Warner said.

The former government in 2022 tasked NSW Police and NSW Health with preparing a report detailing their readiness to implement changes ahead of final endorsement.  

The Commissioner of Police and Chief Health Officer supported the approach and have advised the Government of their “operational readiness” to implement the scheme from early 2024.