Criminal justice responses relating to personal use and possession of illicit drugs: the reach of Australian drug diversion programs and barriers and facilitators to expansion

Context: Australian criminal justice responses relating to personal use and possession of illicit drugs are subject to frequent public debate. Yet systemic gaps in knowledge exist about how Australian drug laws are actually enforced, including to what extent people who come to the attention of Australian police for an offence of illicit drug use and possession end up prosecuted for these offences alone. More importantly, there is no knowledge on the extent to which people get diverted away from a formal criminal justice system response. This is an important omission as drug diversion, whereby offenders are diverted away from criminal justice sanction or into drug education/treatment, constitutes one of the core drug policy responses to illicit drug use and offending in Australia.

Goals: This project sought to provide the first comprehensive analysis of Australian criminal justice responses relating to personal use and possession of illicit drugs and the reach of Australian drug diversion programs. Specific aims were: 1) To outline current Australian laws and approaches taken to illicit drug use and possession in each jurisdiction (including programs on alternatives to arrest). 2) To assess the scale of criminal justice responses to use/possession in Australia over the period 2010-11 to 2014-15, including the number of people detected, prosecuted and/or sentenced for use/possession, the number of people diverted away from criminal justice proceedings, and the populations that are most and least likely to receive a drug diversion by state/territory and demographic factors. 3) To identify barriers and facilitators to the diversion of use/possess offenders in Australia (e.g. legal barriers, program design, resourcing).

Methods: The project employed three parts. First, it systematically identified and documented the current laws and diversion programs for personal use and possession by state/territory. Second, it compiled three sets of Australian Bureau of Statistics data on all police detections, court actions and imprisonment involving a principal offence of drug use and possession over a five-year period (2010-11 to 2014-15), and analysed the incidence of diversion, trends over time and the role of four factors - state/territory, age, sex and prior detections - in shaping drug diversion access. Third, it consulted 24 experts covering criminal justice, health and non-government organisations about barriers and facilitators to drug diversion.

Results and implications: The analysis showed that in Australia on average 44,904 offenders are detected with a principal offence of use/possession each year and that 55% of offenders are diverted by police away from the courts. But the rate of diversion varied significantly across states, between 32.4% and 98.0%, and that people residing in South Australia or the Australian Capital Territory
between 1.7 and 3 times more likely to be diverted than people who reside in Western Australia, New South Wales or Queensland. Experts attributed the different rates of diversion in large part to state policy differences in program design and implementation including for example the traditional absence of drug diversion for use/possession of drugs other than cannabis in New South Wales and Queensland. Multiple avenues to expand drug diversion were identified including trialling newer models of diversion delivery, streamlining police referral systems and introducing a legislative requirement to divert eligible offenders. Importantly, this report also highlighted a strong desire from the experts consulted to reverse the inequity in diversion access with many steps put forward that could be taken to expand diversion in Australia.