When Prof Dan Howard handed the New South Wales government the findings of his landmark inquiry into drug addiction almost three years ago, he knew some of the 109 recommendations would prove unpalatable.
Specifically, any move to decriminalise illicit drug possession was unlikely to get far in a state where both major parties jostle to outdo one another in vowing tougher jail sentences, more police powers and harsher bail laws.
So Howard gave the government a fallback. Instead of opening themselves up to the charge of being soft on drugs, the government could commit to introducing a pre-court diversion scheme which would allow police to direct people found with small amounts of illicit drugs to health services, rather than court.
That compromise was floated by the state’s attorney general, Mark Speakman, earlier this year as he attempted to navigate a cabinet hostile to wholesale reform. In the end, that is the policy it has gone with.
In the government’s response to Prof Howard’s inquiry on Wednesday, which included $358m in funding to address “treatment gaps” in drug and alcohol services and $141m to expand justice initiatives, such as the drug court, Speakman also announced a “two strikes” pre-court diversion scheme.
The idea, a form of what’s known as de-penalisation, already exists. In 2000, the then Labor government introduced what’s known as the cannabis cautioning scheme to do just that.
The scheme is not perfect. Police still have discretion to charge people caught with a small amount of cannabis, and a series of caveats means it is not open to people who have prior convictions for some offences.
Guardian Australia has previously written about how this means sections of the public are more likely to go to court for minor drug possession offences. Between 2013 and 2017 83% of all Indigenous people found with a non-indictable quantity of cannabis in NSW were pursued through the courts, compared to 52% for the non-Indigenous population.
The use of the scheme is also disproportionately applied across jurisdictions. In 2011 the NSW auditor general found that in 2009–10, the use of cannabis cautions ranged from 6.5% in the Manning/Great Lakes local area to 74.3% in the eastern suburbs of Sydney.
Prof Howard highlighted those limitations in his final report, noting it was “apparent that even in the presence of clear guidelines, such as those pertaining to the Cannabis Cautioning Scheme, there are still concerns about differential application between police commands and in marginalised populations”.
Those faults will be replicated in the expanded diversionary scheme announced on Wednesday. The same police discretion will exist, the same restrictions to eligibility, and the same limits on the number of diversions a person can receive.
The pre-court diversion scheme won’t even come into existence until after June 2023, when the state’s chief health officer, Kerry Chant, and police commissioner, Karen Webb, report on “whether the rollout of services and supports under the government’s commitments is sufficiently advanced to allow commencement of a pre-court diversion scheme”.
“The government will then make a final decision regarding implementation of the pre-court diversion scheme,” the response states.
That further delay – almost three years after the government received the Howard review – is lamentable.
It also means its implementation will be subject to what happens at the March state election. The same goes for the expanded treatment funding, which won’t actually be provided until after the implementation of a new alcohol and drug strategy – the first since 2006 – which won’t occur prior to the election.
But it’s progress, and on Wednesday most sector advocates were happy to accept progress in a sector where for years there has been precious little.
It hasn’t always been that way. The cannabis cautioning scheme was introduced the year after then premier Bob Carr’s drug summit. It also led to what were then a series of landmark reforms such as the medically supervised injecting room in Kings Cross.
But politics in NSW has had a problem with addiction for a long time, becoming progressively worse at thinking pragmatically about crime, justice, health and the intersection of all three.
Instead, politicians get their dopamine fix by winning over the segments of the media and electorate which demand adherence to a “tough on crime” approach that decades of evidence tells us does not work.
Finally, the government on Wednesday dipped its toe into a different approach.
