SMH: Ice commissioner warns law and order debate is holding back reform

The commissioner who led the state’s ice inquiry has warned an outdated law and order war on drugs threatens to derail critical reform and leave NSW lagging behind the rest of Australia.

Dan Howard, SC, said he was concerned that a failure to grasp the concept of decriminalisation could squander the chance for reform as Premier Gladys Berejiklian’s cabinet remains split over the issue.

The “tired law and order war on drugs continues to thunder from some quarters”, he said.

“I have found the current debate that seems to be raging in the media and elsewhere over the government’s pending response to the ice inquiry’s report disturbing – it appears to be fuelled by a considerable misunderstanding of the facts and evidence before the inquiry,” Professor Howard said.

“What is currently being debated is ‘depenalisation’ of simple drug use/possession which is really a very modest reform of a kind that every other state bar Queensland has already introduced.”

Professor Howard said depenalisation is not legalisation nor even decriminalisation, where the ability of the state to prosecute would be removed.

He said it was not an isolated recommendation but part of a comprehensive package of reforms.

“Depenalisation means leaving the crime of simple possession of a small quantity of drugs for personal use on the statute books but not prosecuting until other measures have first been tried,” Professor Howard said.

“This could be referrals to an appropriate health intervention, cautions or on-the-spot fines on one or more occasions of drug possession – the inquiry recommended three – before any prosecution proceeds.”

The government’s proposed response to the year-long inquiry has bitterly divided the government after details of the three-strike possession policy emerged last week as result of a leak from cabinet.

The Premier stressed that the government had no intention of legalising drugs, but Police Minister David Elliott and Deputy Premier John Barilaro were vocal in their opposition to the proposal.

The issue will go back to cabinet on December 14.

The leak came just days before Ms Berejiklian was due to know the direction of findings from the Independent Commission Against Corruption inquiry into former MP Daryl Maguire.

Ms Berejiklian was called to give evidence in October at the inquiry into the disgraced former Liberal politician, who she was in a “close personal relationship” with for at least five years.

Late on Friday the commission said it had “advised parties that submissions … have been delayed”.

NSW Labor leader Jodi McKay has written to Ms Berejiklian, asking that she request the suppression order on the submission relating to the Premier be lifted.

“If, as you maintain, you have done nothing wrong on this matter then surely you will have no objection to Counsel Assisting’s recommended findings being made public without delay,” Ms McKay’s letter says.

The drug debate also follows a difficult fortnight for Ms Berejiklian, which included her admitting she failed to isolate after a COVID-19 test and defending pork-barreling in Coalition seats.

One senior minister, who spoke anonymously citing cabinet confidentiality, said while the intention of the drug policy leak may have been to stall the proposal, it was also damaging to the Premier.

“I think whoever leaked this wanted to stop the policy but it was also undermining for Gladys because it made her look like she has no authority over her cabinet,” the minister said.

Another senior minister said Ms Berejiklian’s judgment had been poor but stressed there would be no leadership challenge and Ms Berejiklian would only be replaced if was her decision.

“She needs to take a break, reset and get some clean air over Christmas,” the minister said.

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