Chris Minns’ Labor government has finally announced it will hold its promised NSW Drug Summit, comprising a four-day forum with two regional dates set for October, along with two dates of hearings in Sydney over December 4 and 5.
Minns delayed the summit after the Daily Telegraph, last year, asked him questions about the ACT’s drug decriminalisation roll-out and he asserted he had “no mandate” to progress such a reform.
“The Drug Summit was an election commitment,” the government said on July 12. “It will bring together medical experts, police, people with lived and living experience, drug user organisations, families, and other stakeholders to provide a range of perspectives and build consensus on the way NSW deals with drug use and harms.”
Such a thorough meeting brings an expectation for progressive drug law reform. There is also a precedent. Former Premier Bob Carr’s 1999 NSW Drug Summit brought serious change, including trialling the now permanent medically-supervised injecting room in Kings Cross.
Since last August, the NSW government had been dragging its feet on the summit. Much of the credit for getting it to announce dates goes to the Uniting Church.
Drug decriminalisation
What sort of drug law reforms are likely to be on the agenda at the 2024 NSW Drug Summit?
The changes sought are focused on people who use drugs, not cultivators, manufacturers or suppliers, because illicit drug use should be treated as a health issue and not a crime.
Uniting’s Fair Treatment campaign has been calling for drug decriminalisation in NSW and the ACT since 2018. More than 70 other organisations have partnered with it, including the NSW Bar Association, Community Legal Centres NSW and the Aboriginal Legal Service NSW/ACT.
In NSW today a person found with a quantity of an illegal drug deemed for personal use can be charged with drug possession — an offence under section 10 of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 2 years in prison and/or a fine of $2200.
Section 12 of the Act also makes it a crime to self-administer an illicit substance, which also carries a maximum of 2 years imprisonment and/or a fine of $2200.
Decriminalisation would mean the criminal sanctions relating to these laws would be revoked so that possession, or use, would be a civil penalty, such as a small fine, or being required to attend a counselling session.
Labor rolled out the Early Drug Diversion Initiative in February which is supposed to meet decriminalisation part way. It allows police to impose a diversionary civil penalty —a fine or a counselling session, on two occasions prior to a third instance which would require a charge.
The problem is that it is discretionary, so officers can choose whether to apply it. Early figures, obtained in parliament, show that police have only diverted 7.5% of those eligible. Currently, police are opting to apply criminal penalties.
Deemed supply
The NSW Council of Civil Liberties is another key organisation calling for the summit. Nicholas Cowdery, one of its former presidents and a former NSW Director of Public Prosecutions is on record calling for the deemed supply law to be revoked.
Section 29 of the Act covers deemed supply, that means that if a person is found with an amount of drugs for personal use, but it exceeds the amount considered to be for personal use and is classed as a traffickable amount, they are then charged with supply.
Schedule 1 of the Act lists more than 200 illicit substances. It indicates the quantities for each that then influence the penalties relating to the amount in possession.
These are: a small amount; a traffickable quantity; an indictable quantity; and a commercial or large commercial quantity.
This means that a person with one MDMA pill can be charged with drug possession, however an individual with three pills can be charged with supply, regardless of whether they were all for that person’s individual use.
The offence of supply, under section 25 of the Act, carries different penalties depending on the quantity of a certain illicit substance.
Yet, the penalty that would apply to a case of a traffickable amount of MDMA an individual has for personal use is 2 years and/or an $11,000 fine if tried in the NSW Local Court. If tried in the NSW District Court, they could receive 15 years jail time and/or a fine of $220,000.
Drug testing, dogs and strip searches
A number of other key harm reduction reforms are likely to be on the summit agenda. One is likely a given, while the other two will surely ruffle the feathers of any NSW Police representatives.
The first major reform is pill testing. This evidence-based drug harm intervention allows for a sample of an illicit substance to be tested to advise the owner of its content and risks of ingesting it.
Pill testing or drug checking has been operating in Europe since the mid-1990s.
Pill testing has been legal in the ACT since mid-2022. The practice started in Queensland this year and Victoria will begin a trial in summer.
In NSW, there has long been heavy resistance to pill testing, despite it leading to less drugs being taken as people often bin them once they find out their content.
Another contentious topic will be the suggestion to remove the warrantless use of drug detection dogs in public settings, especially at music festivals.
The use of sniffer dogs does have negative health impacts, but it is also a social issue as police, on average, find nothing on two-thirds to three-quarters of occasions when a sniffer dog indicates. When an illegal substance is found, it is mostly a small amount of cannabis.
As the use of police and drug dogs has also become more common at festivals, young people are so terrified that they often swallow all their drugs at once to avoid detection. Known as “panic overdosing”, it occasionally leads to death.
The use of strip searches may not make it on to the summit agenda.
Over the past 10 years, drug dog indications that lead to a pat-down search that turn up nothing have increasingly been accompanied by a strip search that, two-thirds of the time, also finds nothing.
NSW police are often unaware of protocols when conducting these invasive procedures and even when they do being ordered to strip naked in front of two armed strangers is often traumatising.
Redfern Legal Centre (RLC) senior solicitor Samantha Lee believes that strip searching youths “is an abuse of power and we know the practice can cause long-term trauma”.
The RLC’s police accountability solicitor has suggested that “the government should implement an immediate pause on the strip-searching of children and place strip-searches on the drug summit agenda”.
[Paul Gregoire writes for Sydney Criminal Lawyers where this was first published.]