NSW Labor Premier Chris Minns has been reverting back to the drug reform rhetoric the former Coalition government had been using over the summer of 2018-–019 when five people died in drug-related circumstances at festivals.
These deaths led to an inquiry into the drug ice and an inquest. Minns’ response had been causing a stir, not just because the Uniting Church and some 70 other prominent organisations have been calling for the decriminalisation of personal drug use since 2018, but also because NSW Labor had promised drug law reform as part of its election platform.
But drug reform campaigners applauded Minns’ new depenalisation scheme, announced on October 9, which involves fining rather than criminlaising those found in possession of a personal amount of an illicit drug. The system means the person can be fined up to two times, before they are charged.
Uniting NSW.ACT pointed out that this means there is now a “bipartisan approach to drug laws” as Minns’ strategy was first proposed by then Coalition Attorney General Mark Speakman in November 2020.
Resuscitated reform
Labor’s October 10 drug law reform announcement states that NSW Police will be able to issue up to two $400 on-the-spot fines to individuals found in possession of a personal quantity of an illicit substance.
“The scheme will encourage people who get a criminal infringement notice to complete a tailored drug and alcohol intervention and, if they do complete it, then their fine will be treated as though it was paid,” Labor said, adding that if they fail the program, the fine stands.
The Justice Legislation Amendment (Miscellaneous) Bill 2023, introduced into parliament the same day, contains the changes. A new section, 23B inserted into the Fines Act 1996, will permit the “completion of certain activities” to be “treated as payment”.
Labor’s announcement said the former Dominic Perrottet government asked police and the department of health to consider this scheme. But it did not state that when Speakman first put it to the Berejiklian cabinet, it contained an initial warning prior to any fines being issued.
The NSW ice inquiry first raised the on-the-spot fining scheme as an alternative to drug decriminalisation: it was its main recommendation for drug law reform.
The state coroner also recommended decriminalisation in its coronial inquest into music festival deaths.
Decriminalisation involves the removal of criminal penalties for the possession of a quantity of an illicit substance that is deemed to be for personal use.
However, under the Minns-Speakman depenalisation scheme, drug possession and its use remain criminal acts that would be initially punished via a fine, unless a treatment program is completed.
Head in the sand
Former Premier Gladys Berejiklian commissioned Professor Daniel Howard to conduct the ice inquiry in November 2018, months after two young people had died at that year’s September 15 Defqon.1 festival and drug law reform was being widely discussed.
In July, Minns pushed his promise of a NSW drug law reform summit back a couple of years, saying he had “no mandate” to follow the ACT Labor-Greens government on drug decriminalisation. Such laws had just come into effect in the ACT on August 28.
Drug law reform group Unharm called on Minns on September 11 to consider pill testing, a system that lets people check the content of their illegal drugs so they can then make an informed decision on whether they still want to take them. Pill Testing Australia has been operating a fixed-site drug checking service in the ACT since mid-last year.
However, just like Berejiklian, Minns has continued to rule out pill testing, despite it having saved lives in Europe since the mid-1990s. He’s borrowed the Coalition’s favoured phrase saying that harm reduction intervention is “no silver bullet”.
But then following all this, on September 30, two young men died at the Sydney Knockout music festival in drug-related circumstances.
Discretionary issues
NSW has been operating the cannabis cautioning scheme since 2020: it gives police the option of issuing warnings to adults found in possession of a personal amount. However, over 2020-2021, police made more than 15,000 cannabis arrests in NSW: around 90% were consumer offences.
In response to the festival deaths over 2018–2019, since January 25, 2019, police have had the discretion to issue fines instead of pressing charges for any individual found in possession of a certain quantity of illicit substances.
Instead of charging someone with personal possession, officers have the discretion to issue an on-the-spot $400 fine for a small quantity of MDMA, 0.25 grams, in capsule form, or a trafficable quantity, 0.75 grams, in any other form, as well as a small quantity of any other illegal substance.
Despite officers having this discretion, over the five years to 2017, police pursued 80% of First Nations people in possession of a cautionable amount of cannabis through the courts, while only 50% of non-Indigenous people were treated in the same way.
“The NSW government has today announced its intention to extend the existing infringement notice system that currently applies to MDMA at music festivals to apply to all drugs and all places,” Uniting NSW.ACT general manager of advocacy and external relations Emma Maiden said on October 10.
“This is a good step forward, but the proposed imposition of a large $400 fine is clearly most damaging to those who can least afford it.
“The proposed reform plan for these fines to be discharged by being referred for a health intervention is a recognition of what we have long been saying,” Maiden said. “Drug use and dependency is a health issue and should be treated as such.”
[Paul Gregoire writes for Sydney Criminal Lawyers, where this was first published.]