Queensland police will retain the right to charge children over minor drug offences for which adults will soon only receive a warning, under new drug laws introduced last week.
The state government’s Police Powers and Responsibilities and Other Legislation Amendment Bill would give adults caught carrying small quantities of illicit substances three chances before facing a criminal charge.
In a press release the government said they were taking “a commonsense approach based on the evidence that if you divert people early to health and education services, they are less likely to reoffend”.
“This is about helping people, who are often young, deal with a health issue.”
But advocates and legal experts have warned the legislation could disadvantage children who would still be subject to police discretion under the new laws.
While the proposed changes would allow police to issue unlimited warnings to children – unlike for adults, who only get three warnings – they would also have discretion to lay charges, including for a first offence. Police will have no discretion to charge an adult on their first minor drug offence if the bill is passed.
Damian Bartholomew, solicitor at the Youth Advocacy Centre (YAC), called for a provision to be added to the bill to make it mandatory that eligible children be diverted by a warning or another diversion already provided for in the Youth Justice Act.
Bartholomew said without that, the bill “leaves young people open to court proceedings in circumstances where an adult must be diverted by a warning”.
YAC is also calling for courts to have the ability to dismiss a charge if they determine a young person should have been diverted under the drug diversion provision.
Bartholomew said under current laws, if court proceedings are commenced, courts cannot dismiss the charge on the basis for such a reason.
“This places young people eligible for the scheme at a significant disadvantage to adults who must receive a warning rather than proceed to court,” he said.
“This contravenes fundamental principles that young people in the criminal justice system should not be treated more harshly than adults.”
The police minister, Mark Ryan, said that he was “advised by the Queensland Police service that to make the amendments suggested would ultimately limit the diversion and rehabilitation options available for youths”.
“This position is supported by the Department of Youth Justice,” Ryan said.
Ryan said officers are lawfully required under the Youth Justice Act to consider the most appropriate way of dealing with a youth found in possession of drugs.
“This already includes diversion and rehabilitation options such as an informal warning, administering a formal caution, or referring the youth to a drug diversion program for minor drug offences,” he said.
“That being said, stakeholders and advocates are encouraged to forward any suggestions to the parliamentary committee reviewing the proposed legislation.”
But the Greens MP for Maiwar, Michael Berkman, said police should not have the discretion to charge a child for minor drug offences where they couldn’t even charge an adult.
“What’s really concerning – and I’d hope this is just a drafting error – is that children could be worse off than adults under this new drug diversion scheme,” Berkman said.
“Police should … not be able to charge a child for possession,” he said.
Rebecca Lang, chief executive of the Queensland Network of Alcohol and other Drug Agencies, said the government should clarify how the laws will affect children.
“We certainly will be making the point to government that people – especially not children – should not be being engaged in the justice system purely around their substance use,” Lang said.
“We would absolutely agree that [diversion options] should not be discretionary for police. It should be mandatory.”
Berkman also said expanding the diversion program was a good “first step” but decriminalisation or legalisation should be prioritised.
“Expanding access to the diversion program is a sign that this government’s finally listening to the evidence on reducing drug harm.
“It’s a good step forward but I’m disappointed they’ve stopped short of decriminalisation or legalisation as recommended by the Productivity Commission.”
