Government’s plan has been floated as a compromise to help placate reform advocates while keeping conservatives in check but it faces staunch opposition
The New South Wales government is considering a proposal to dramatically decrease penalties for illicit drug possession in the state.
The policy, which is currently before cabinet, has been widely welcomed by health experts, drug policy reform groups and parents of young people who have died as a result of drug overdoses at music festivals.
But just days after it was first reported, the policy is facing a vicious backlash from members of the government’s conservative wing, as well as tabloid media and talkback radio.
But what is the policy, and why is it proving so controversial?
What is it?
The government has declined to publicly discuss the policy in detail, but its basic tenets are fairly straightforward.
Under the proposal before cabinet, a person caught with a small quantity of an illicit drug could be issued a warning, rather than a criminal charge. If the same person was caught a second or third time in the same 12-month period, they would be fined.
Only if the person was caught a fourth time in the same period would they be charged with an offence.
The policy has been reported as “effectively decriminalising” drug possession. That is incorrect. While it comes close, decriminalisation means completely removing the criminal sanctions attached to drug use and possession. So while possession would still be illegal, they could not be charged for being in possession of drugs.
It is instead a form of diversion or “depenalisation” – effectively a reduction in the punishment attached to a particular drug charge. It would not be unique in NSW. The state has had what’s known as the cannabis cautioning scheme since 2000.
The caution allows police who catch a person with less than 15g of cannabis to issue a warning, rather than fine or charge them. If a person is caught twice, police can refer them to the Alcohol and Drug Information Service.
The scheme is not perfect. Police have the discretion to decide whether or not to issue a caution, and cannot do so if the person has a previous conviction for violent or drug or sexual assault-related offences. Earlier this year a Guardian investigation revealed Indigenous Australians were far more likely to be charged for small amounts of cannabis possession than the rest of the population.
There are also more recent examples of depenalisation in NSW. Last year, for example, an amendment to the state’s laws allowed police to begin issuing on-the-spot $400 fines for possession of small quantities of drugs at music festivals.
Why is the government considering it?
The proposal is being considered as part of the government’s response to its own special commission into drug use.Advertisementhttps://6a3df49b38cf51e42481d57f8210e08e.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html
The so-called ice inquiry was announced by the NSW premier, Gladys Berejiklian, in November 2018 following a spate of crystal methamphetamine deaths. Its terms were later expanded to include “other illicit amphetamine-type stimulants”.
It enjoyed broad terms, which allowed it to consider both the adequacy of existing approaches to addressing amphetamine use and howthey could be improved. That included looking at issues such as pill testing, which the NSW government has steadfastly refused to consider despite its broad support among health groups.
During the inquiry, Berejiklian said she was “convinced” the inquiry would find no evidence that pill testing worked. She was wrong. When the inquiry’s commissioner, Dan Howard, handed down his findings in February, he not only recommended pill testing by saying there was “strong and compelling evidence” to support it, he went much further and recommended the complete decriminalisation of drug possession in the state.
It has caused quite a headache for the government. When the NSW deputy coroner, Harriet Grahame, recommended decriminalisation following an inquiry into the death of six people from opioids last year, the government ignored her. It is unable to do that with a report it commissioned itself.
Instead, this proposal has been floated as a compromise – a modest but promising reform that could help placate reform advocates while keeping the government’s conservative wing in check.
Has it worked?
Well, no. The policy was discussed at a cabinet meeting on Monday, where it received what has optimistically been reported as “broad” but “not unanimous” support. The next day the policy was leaked to the Seven Network by a conservative member of the government’s frontbench.
While it accurately detailed the proposal, Seven’s report erroneously suggested the plan “effectively decriminalised” drug possession in the state. The Seven story also featured Greens MP David Shoebridge welcoming the plan, a surefire way to set off alarm bells among government MPs worried about how it would look to their base.
On Wednesday the deputy premier, John Barilaro, fronted up on Sydney radio station 2GB to pour cold water on the plan, saying the government would not go “soft” on the policy. News Corp tabloid the Daily Telegraph was also predictably nuanced in its coverage, running a page one story under the headline “You Bunch of Dopes”. The story described the police minister, David Elliott, as being “heartbroken” by the proposal.
The attorney general, Mark Speakman, who first floated the plan, has remained silent, other than to say through a spokesman that the government “does not plan to decriminalise possession of illicit drugs”. Similarly, at a press conference on Thursday, Berejiklian said the government had a “black and white” position of not supporting decriminalisation.
While the politics are still fluid, it now appears more likely the government will propose a compromise of its compromise and opt to limit the warning system to young people, while possibly excluding crystal methamphetamine from its remit.
Why is drug law reform such a vexed issue in NSW?
Believe it or not, it hasn’t always been. In 1999 the then-Labor premier, Bob Carr, established a drug summit in an effort to tackle a spiralling heroin epidemic that had gripped Sydney.
The summit was successful in pushing a major rethink on drug policy in the state and led to the introduction of a number of significant harm-reduction measures, including Australia’s first medically supervised injecting room in Kings Cross, the cannabis cautioning scheme and the NSW drug court.
Those reforms were not uncontroversial, and the injecting room in particular sparked a wave of outrage. The NSW Liberal party called for the then-prime minister, John Howard, to intervene to block the proposal (he declined), the Vatican ordered a group of nuns who were planning to run the service to pull out and the United Nations International Narcotics Control Board objected to its implementation.
It eventually went ahead with the support of the then-Liberal leader, John Brogden, but since then support for drug policy reform has been hard to come by.
Part of the issue has been Labor’s steady loss of appetite for reform in the space. Since the government’s proposal was leaked on Tuesday, the opposition leader, Jodi McKay, has offered no opinion on the proposal, other than to criticise the government for taking too long to respond. When Guardian Australia called the shadow police minister, Lynda Voltz, this week she asked for questions to be put in writing and then never responded.
The former Labor premier and now federal senator Kristina Keneally also felt moved to intervene, saying she was “not yet convinced that what I see is the right way forward”.
“I would strongly urge the cabinet to slow down and listen to some experts,” Keneally told 2GB.
There are some exceptions on the Labor side, though. The Summer Hill MP Jo Haylen tweeted in support of the policy on Wednesday.
“The evidence is clear,” she wrote. “The ‘war on drugs’ does not work. To save lives we must treat drug use as a health issue not a criminal one.”
Haylen is part of a cross-party harm-minimisation roundtable that includes Greens MP Cate Faehrmann, independent Alex Greenwich and Liberal MP Shayne Mallard.
The group released a statement welcoming the policy, saying it would have “a significant impact on the lives of the many people, families and communities impacted by illicit drugs and those caught up unnecessarily in our criminal justice system”.
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