Revealed: Government to announce major shake-up of NSW drug laws with ‘two-strike’ scheme

The Minns government will dramatically overhaul NSW drug laws by introducing a broad pre-court diversion scheme for people caught in possession of small amounts of illicit substances, potentially allowing thousands of recreational users to avoid criminal sanctions.

The Sydney Morning Herald has confirmed NSW Labor is poised to announce the most significant shake-up of existing drug laws in the state’s recent history, expanding existing pre-court diversion schemes already in place for cannabis to include all illicit drugs.

NSW Premier Chris Minns will oversee a dramatic shake-up of the state’s drug laws.Credit: Dion Georgopoulos

The changes, to be introduced in parliament this week, would introduce a “two-strike” policy, which would mean people caught with small quantities of illicit drugs including ice, cocaine and MDMA, would be able to receive fines and access health programs rather than face criminal charges.

The changes are a major win for drug law reform advocates long frustrated by NSW’s glacial approach to changing the criminal approach, and represent a sharp shift from a government that has resisted calls for changes.

The proposal, which mirrors one announced but never enacted by the former Coalition government, was a fall-back recommendation of a landmark inquiry into drug laws in the state that had called for the complete decriminalisation of illicit drugs in NSW.

NSW Health Minister Ryan Park said drug use and addiction “are very much health issues” which were “far better addressed through health support outside the courts and criminal justice systems”.

“This is an evidence-based approach in line with community expectations. It responds directly to expert evidence, and recommendations from the Special Commission of Inquiry into the drug ice,” he said.

The scheme will give police the ability to issue up to two $400 fines to adults caught with small quantities of drugs equivalent to a possession offence. However, if a person completes a “tailored drug and alcohol intervention” the fine will be wiped.

The so-called ice inquiry, led by Professor Dan Howard, handed down its findings in February 2020 after 14 months of hearings. It recommended the complete decriminalisation of drug possession in the state, as well as the introduction of pill testing at music festivals and the abolition of drug dogs.

The former government took 32 months to respond to the findings amid fierce disagreement within cabinet over the changes.

Former NSW premier Dominic Perrottet had announced plans for an expanded pre-court diversion scheme in September last year after brokering a compromise between moderate and conservatives in the party, but delayed any decision until after the election by asking NSW Police Commissioner Karen Webb and Chief Health Officer Kerry Chant to investigate whether the scheme could be rolled out.

Their advice – which was due in June – has not been an impediment to the reform, and government sources confirmed the NSW Police had not advised against the change.

Despite expressing strong support for legalising cannabis in the past, Premier Chris Minns has been resistant to backing reform since coming to power. Minns has not supported calls to introduce a pill testing trial in NSW ahead of the upcoming music festival season, saying Labor would not consider it before holding a drug summit in its first term of government.

But a number of senior ministers including Jo Haylen and Rose Jackson are well-known supporters of reform and the government has been under pressure to support drug law reform by the Greens and the Legalise Cannabis Party.

In correspondence to Attorney-General Michael Daley written in early August and obtained by the Herald, Legalise Cannabis MP Jeremy Buckingham urged him to expand the drug cautioning scheme and fix the existing provisions around cannabis offences.

“It will provide better outcomes for low-level drug offending without compromising safety,” he wrote on August 10, noting the amendments would bring NSW into line with other Australian states and territories.

“This will have the twin benefits of reducing demand on the Local Court and improving outcomes for people with lower-level drug offending by diverting them away from the criminal justice system and towards health services.”

He said the cannabis scheme was inordinately impacting First Nations people because they might have been excluded from the cautioning scheme due to prior offences.

Buckingham called on Daley to scrap the need for a person to admit the offence and the exclusion due to previous violence or sex offences which he said “have no direct bearing on drug issues”.

Those barriers are set to be scrapped from the reworked scheme. However police will retain their discretion over whether to issue cautions.

Greens MP Cate Faehrmann said the change was “heading in the right direction” but criticised the government for not addressing the ice inquiry’s recommendations in full.

“I hope this will see an end to police harassment of people at train stations and music festivals, particularly the use of drug detection dogs,” she said.

Daley said the reforms reflected the fact that “formal contact with the criminal justice system only increases the likelihood of reoffending, and this has knock-on effects on people’s employment, their housing and their relationships”.

“We want to see people receive the health supports they need rather than see them caught up in the criminal justice system,” he said.

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