The NSW Government has announced its intention to give NSW Police the power to issue up to two on-the-spot fines of $400, called Criminal Infringement Notices, to adults for low level drug offending state-wide. This step is taken in an effort to expand and strengthen drug diversion programs in NSW, which utilise health intervention rather than the criminal justice system to address small quantity drug possession. This seeks to save lives and reduce reoffending.

Speaking with the Newcastle Herald on 10 October, Hamilton Janke Lawyers’ Drew Hamilton said that these proposed changes are being welcomed by him and his colleagues “in what must be a recognition that the war on drugs simply isn’t working.”

Mr Hamilton went on to say that “however, any reform that promotes and facilitates a therapeutic approach to minor drug matters must be supported by further funding into rehabilitation and treatment services both locally and across state.”

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How will the new powers operate?

These powers will allow NSW Police, in their discretion, to issue a maximum per person of two Criminal Infringement Notices for minor drug possession rather than a Court Attendance Notice (CAN), with a CAN being issued only for subsequent offences. These fines may then be withdrawn upon the completion of a health intervention program provided by NSW Health.

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Why are these powers being granted?

The introduction of these new laws demonstrates a growing desire for a more rehabilitative justice approach to drug crime in NSW. The scheme recognises that formal contact with the criminal justice system only increases the likelihood of reoffending. The scheme seeks to provide health support to those who need it rather than see them prematurely caught in the court system.

The implementation of this scheme comes as a response to Recommendations made through the ‘Special Commission of Inquiry into the Drug ‘Ice’’ in 2020. Recommendation 12 of the subsequent Report asked that, in conjunction with increased resourcing for specialist drug assessment and treatment services, the NSW Government introduce a legislated police diversion scheme for use and possession for personal use of prohibited drugs.

With studies demonstrating that treating drug offenders is more effective at reducing recidivism – or the tendency of a criminal to reoffend – than is imprisonment, this new drug diversion program is designed to divert thousands of people out of the court system and into health and education services instead.

This reform also aims to ease the current burden on police and courts, allowing for resources to instead be prioritised toward the more serious drug offences of supply and manufacture.

What kind of offences can these fines apply to?

This arrangement addresses low level drug offences only, including personal drug use and small quantity drug possession. The program will not apply to the following:

  • Drug supply, dealing, or trafficking;
  • Drug production or manufacture;
  • Previously convicted drug dealers;
  • People who have large quantities of drugs; or
  • People who have already received two Criminal Infringement Notices for drug possession offences.

 

The approved quantities to which these fines will apply are for low, non-commercial levels of drug use including 0.25mg for MDMA, 1g for cocaine and ice, and 30g for marijuana.

Are the fines mandatory? 

The exercise of these powers is not mandatory. In all cases that may attract an on-the-spot fine under the new policy, it remains at the discretion of NSW Police whether to charge a person and proceed to court or to instead issue a Criminal Infringement Notice. In this way, the scheme acts as “another tool in their kit” when Police are deciding upon the appropriate response to the unique circumstances of a given offence (Police Minister Yasmin Catley).

Key Takeaways

Can the fines be waived?

This scheme seeks to address personal drug use and possession on a health, rather than criminal, level. In order to do so, it encourages people who are issued with a Criminal Infringement Notice to complete a tailored drug and alcohol intervention program. If such a program is completed, the fine will be waived and treated as though it was paid.

This new arrangement is anticipated to commence in early 2024. 

While these new Police powers demonstrate a shifting approach, the scheme is consistent with the gravity in which drug use and possession is held in NSW. If you or someone you know needs legal advice or representation in relation to a drug matter, contact the team at Hamilton Janke Lawyers anytime by calling 4038 1666.

Written By
James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia