Despite the New South Wales Government introducing an initiative which allows police to issue a fine instead of charging those caught with small quantities of illicit drugs, it has only been utilised for 6.9% of people caught.
Data obtained from NSW Police under freedom of information detailed that 1,749 First Nations people who were eligible for diversion were instead charged, with only 46 receiving diversions.
Diversion rates were also low amongst non-Indigenous people, with just 7.8% (617 people) of those eligible being diverted, while 7,269 were criminally charged.
The data revealed that those caught with MDMA or cocaine were most likely to receive a diversion.
Furthermore, five Police Area Commands (‘PACs’) – namely Ryde, Riverstone, the Hills, Manning Great Lakes, and Port Stephens – had not diverted anybody (as at the end of October 2024). Jointly, they charged 483 people and diverted none.
In comparison, the Auburn PAC diverted the most amount of people caught with small quantities of drugs (36%). Sydney City PAC was the second highest with 29% of those caught being diverted.
Advocates have now argued that the decision to divert those caught with the substances away from courts should not be left up to police, or that personal use quantities of illicit drugs should be decriminalised entirely.
What is the drug diversion scheme?
The ‘Early Drug Division Initiative’ gives police the discretion to issue an on-the-spot fine of $400 to those found with small quantities of illicit drugs, instead of charging them with drug possession.
Whether an amount is considered a ‘small quantity’ is based on the illicit drug. Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) (‘DMTA’) outlines a table of prohibited drugs, and what amount is classified as a ‘small quantity’.
For example, 1 gram is the ‘small quantity’ of cocaine, heroin, and amphetamine, whereas it is 0.04 grams for magic mushrooms (psilocybin) and 2.5 grams for ketamine.
For MDMA or ‘ecstasy’ it will depend if the drug is in capsule form. If in capsule form, the applicable amount is no more than 0.25 grams (the small quantity), or 0.75 grams in any other form (the traffickable quantity).
Fines are also available to those cause with possessing equipment for administration of prohibited drugs or caught self-administering prohibited drugs.
However, the scheme is not applicable if you have been caught possessing cannabis leaf. The diversionary program applicable to possession of cannabis is the ‘Cannabis Cautioning Scheme’.
Alternative ways to pay off the fine
Those who receive a fine are encouraged to complete a tailored drug health intervention on behalf of NSW Health. Appointments for the service can be booked online or through calling St Vincent’s Health Network.
It essentially involves speaking to a nominated health professional over the phone. They will discuss the risks of using drugs, healthy options, and how to get further support.
Once you have completed the health intervention, St Vincent’s Health Network will notify Revenue NSW and the fine will be treated as though it was paid, with the amount essentially waived.
If this intervention is not completed, the fine amount will be enforced by Revenue NSW.
Do the fines that can be issued by NSW police carry a criminal record?
Being issued a fine, or paying one, will not result in a criminal conviction.
This is a main benefit of the scheme in that once a fine has been resolved by payment or completion of the health intervention, it will not appear on your criminal record.
However, as outlined, it is important to note that this is a discretionary option and police may still choose to charge you, even where you may otherwise be eligible. There is no current obligation for police to choose this option, or provide reasons where they do not.
The Government has noted that police officers will be able issue up to two on-the-spot fines (referred to as Criminal Infringement Notices or ‘CINs’). However, anyone caught for a third time will likely be charged and have to face court.
What is the maximum penalty for drug possession?
If you are charged with drug possession, the maximum penalty applicable is 2 years imprisonment and/or a $2,200 fine.
The same maximum penalty applies to possessing any item of equipment for use in the administration of a prohibited drug (i.e., a bong or water pipe utilised to smoke cannabis, a pipe utilised ice or rolling papers utilised to smoke cannabis), and administering or attempting to administer a prohibited drug to yourself.
What is the Cannabis Cautioning Scheme?
To be eligible for the ‘Cannabis Cautioning Scheme’ you must be caught with no more than 15 grams of cannabis. Other requirements include admitting to it being in your possession for personal use and having received a caution not more than once before.
Furthermore, police are unable to issue a caution if you were committing another criminal offence or offences at the time, or have prior convictions related to drugs, violence, or sexual assault.
If you receive a caution, you will be provided with a caution notice, which contains the contact telephone numbers for the ‘Cannabis Caution Line’ run by the Alcohol and Drug Information Service.
It provides information about treatment, counselling, and support services. Those who receive a caution are encouraged to contact the Cannabis Caution Line for a telehealth session about their cannabis use.
For more information, or advice on drugs related charges, reach out to our knowledgeable Team for a free first consultation.
