SMH: Opinion – Courts are the wrong place to tackle drug use

Professor Alison Ritter is the director of the drug policy modelling program at the Social Policy Research Centre, UNSW.

Last week, I listened to a person describing her journey with illicit drugs, including crystal methamphetamine – ice. She talked about her first arrest, for drug use, and the subsequent, inevitable, snowballing of her arrests, convictions, and ultimately time in prison. These punishments did nothing to help her, nor did they stop her using drugs. This is why the NSW cabinet should support a proposal before it to divert people who use drugs away from the criminal justice system.

The evidence is clear that dragging people through the courts on small possession charges has significant social and economic costs and limited deterrence. Drug convictions can follow a person through life, affecting their employment. And that’s not to mention the monetary cost of prosecuting multiple small drugs charges.

On the other hand, evidence shows that removing criminal penalties for drug use does not increase drug use and does not increase other crime. Predominantly though, drug problems are health problems best dealt with through the health system.

The public agrees with this. The majority, 68 per cent in fact, according to last year’s National Drug Strategy Household Survey, agree that an education and health response is required for people using ice, not sanctions or punishment. The argument that people who use drugs should be punished is not in line with community sentiment, and it fails the evidence test.

Last year an extensive Commission of Inquiry into the Drug Ice consulted with experts, talked with communities, and considered a large amount of evidence about drug use. The inquiry made many recommendations; a number of these concerned changing the laws around the personal use of drugs.

It is reported that the NSW government is now considering what is called “diversion” – providing the opportunity for someone found with small quantities of illicit drugs to be issued a warning, followed by fines on the second and third instance, with criminal penalties thereafter.

Some people may think this proposal is radical. It is not. Almost all Australian states, except Queensland, already have such schemes in place for all illicit drugs, including ice. NSW has such a scheme for cannabis only. The proposal before state cabinet stops short of the “decriminalisation” of drug use, despite decriminalisation being recommended by the ice inquiry. Choosing diversion rather than decriminalisation is a conservative option.

Diverting people who use drugs away from criminal justice responses and towards health responses is not just common sense, and in line with public opinion, it is backed by evidence. NSW has been slow to tackle the problem of drug use. This proposal gives NSW the chance to catch up with the rest of Australia.

The proposal is not perfect. Allowing police to refer people to an appropriately tailored health, social and/or education intervention at each point of the proposed scheme would give this policy a much stronger harm-reduction focus.

There are concerns also over the use of fines instead of referrals to services, as elsewhere fines have resulted in unintended negative consequences. In South Australia, for example, when fines replaced prosecution for small cannabis possession, people unable to pay those fines ended up in jail whereas previously they would not have.

If we can have a sensible approach to drug use, we may be able to prevent many harms to people who use drugs and their families and friends. Diversion is a good first step. All agree that reducing harm should be the goal. After decades of criminalising drug use, it is time NSW tried a new approach, in line with what the evidence says works.

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