Implement pre-court diversion for drug users now, author of NSW ice inquiry urges

·4-min read
<span>Photograph: Joel Carrett/AAP</span>
Photograph: Joel Carrett/AAP

The author of a landmark inquiry into crystal methamphetamine (“ice”) addiction in New South Wales has warned the government’s commitment to expand pre-court diversion for drug users in the state could be pushed into “the never-never” if it is not implemented by the March election.

On Wednesday the NSW government released its long-awaited response to Prof Dan Howard’s 14-month inquiry into drug addiction in NSW, committing to spending $500m on expanded treatment services and justice initiatives.

But the premier, Dominic Perrottet, rejected Howard’s key recommendation to completely decriminalise drug possession in the state, saying he personally did not support it.

Instead, the government will investigate a pre-court diversion scheme which would introduce a “two-strike” policy allowing people caught with small amounts of drugs to access health intervention programs rather than face court.

Related: After years of delays, the NSW government’s imperfect drugs policy is at least a sign of progress

The review, commissioned by the former premier Gladys Berejiklian following a spate of drug-related deaths in 2018 and handed down in early 2020, was scathing of the state’s approach to addiction, calling for an overhaul of a “tired” justice system.

The issue divided cabinet, and despite repeatedly saying it was close to a response, concerns about being seen as soft on drugs saw the government take almost three years to respond. The recommendations will not be implemented prior to the election next March.

In its formal response, the government said it would consider the pre-court diversion scheme only after June next year, when the chief health officer, Dr Kerry Chant, and the police commissioner, Karen Webb, will “provide advice” on whether the roll out of a suite of services was “sufficiently advanced to allow commencement of a pre-court diversion scheme”.

“The government will then make a final decision regarding implementation of the pre-court diversion scheme,” the report stated.

While pleased with the substantial boost in funding for treatment, Howard said he remained “puzzled” by how long it had taken the government to reach its compromise while warning that failing to act before the election could risk any momentum following the release of the response.

“If it all collapses because the police commissioner comes back and says, ‘well we’re not ready’, that would be really sad,” he said.

“I can see it languishing in the never-never and that is a real worry.”

While disappointed the government had failed to adopt his recommendation for the complete decriminalisation of drug possession, Howard said he had “seen the writing on the wall” by the delay in the government’s response.

He said the pre-court diversion scheme, while positive, was not revolutionary.

“I honestly don’t know why it has taken them so long to come to this compromise,” he said.

“Decriminalisation was obviously the sticking point but we did offer them this as a fallback and the thing about it is just about every other state in Australia other than Queensland has had something like this in place for a long time.”

The diversion scheme will see people avoid being charged for a drug offence if caught with a small amount of drugs. However, it will be a “two-strike” policy, will be subject to police discretion and will not be available for people convicted of certain types of offences.

Related: ‘Complete lack of political courage’: as NSW drugs war rages, expert renews decriminalisation push

Those exceptions – already in place for other diversion schemes in NSW – have seen some groups, particularly Indigenous people, being charged and sentenced for low-level drug offences in disproportionate numbers to the rest of the population.

That, Howard said, was “problematic”. He said the government’s commitment to an expanded pre-court diversion scheme for drug users in the state should be legislated to remove police discretion.

“There has been a real hesitance to do anything to limit the police powers,” he said.

“What we recommended was that it be not discretionary, but a requirement for police to divert people in this way, because once you introduce discretion you get a very real discrepancy in how it is used.

“Why they’re so reluctant to remove discretion is a bit of a puzzle to me.”