Sydney has a cocaine problem. Is decriminalisation the solution?

An absence of policy

For the past 13 years, NSW has been without any formal drug policy or plan.

The previous NSW Health drug and alcohol plan, developed during the 1999 drug summit which led to the development of a youth drug court and the King’s Cross supervised injecting clinic, expired in 2010.

NSW is also the only jurisdiction in Australia without an official diversion or cautioning program, where drug users are referred to health services instead of the justice system for illicit drugs other than cannabis.

Decriminalisation was a key recommendation of the $11 million inquiry, which handed down its 109 recommendations in 2020, but it was one of the proposals rejected by the previous government.

Decriminalisation involves removing all criminal penalties for drug use and possession for small amounts from the law, although fines or other penalties can still be issued.

“De facto” decriminalisation allows police and courts to use discretion whether they charge someone with a criminal offence, issue a fine or caution, or refer them to a diversion scheme.

Decriminalisation does not mean drugs are legal, and trafficking or manufacturing offences can still be prosecuted.

Legalisation involves removing all penalties for possession and personal use of a drug, with regulations established to manage how it can be produced, sold and consumed, like alcohol or nicotine.

Chair of the ice inquiry Professor Dan Howard warned that the NSW government’s inaction on drug reform was fuelling the drug trade.

“By not [introducing decriminalisation] we’re assisting the suppliers. If we’ve got proper treatment programs in place, that will lessen demand,” he said.

“With no formal policy … they’re asleep at the wheel.”

Howard said not introducing decriminalisation was clogging up the courts, with about 20,000 cases in the NSW local court system for the personal use of all types of illicit substances.

“It’s a huge amount of police time, paperwork and court time. All the risks are much better spent on programs for people.”

NSW Attorney General Michael Daley said he recognised there was a need for a comprehensive drug policy in NSW. Labor has promised to hold a drug summit within its first term to guide drug reform, although details have yet to be released.

“The drug summit will be an opportunity to gather advice from legal professionals, health experts, police, academics, support services, families and other stakeholders, to inform a pragmatic and evidence-based approach to drug policy,” Daley said.

University of NSW drug policy specialist Professor Alison Ritter said NSW needed to catch up with the rest of Australia and the world.

“NSW is a long way behind other jurisdictions. There are [scores of] countries that have decriminalised the personal use of drugs. This is not radical. It’s not new,” Ritter said.

Portugal was a leader in the drug reform space, introducing decriminalisation in 2001. Recently, Oregon in the US followed suit.

But issues have emerged in these jurisdictions, fuelled by increased demand for social services amid the cost-of-living crisis.

In Portugal there has been a recent uptick in drug use (although use still remains below European averages), a spike in crime and a decrease in the number of users in drug treatment.

Oregon in the US, which decriminalised drugs in 2020 and offers those caught with small amounts of illicit drugs the opportunity to attend drug screening and assessment, or a fine, has faced an increase in overdoses and public use because users have been attracted from interstate.

Ritter said criticisms misunderstood the purpose of decriminalisation.

“It’s not directed towards reducing drug use and it doesn’t increase drug use. It’s all about removing the criminal justice consequences and reducing the economic burden on the state in terms of the police, courts and the criminal justice system … and it’s very effective at doing that.”

The ACT plans to fully decriminalise possession of less than 1.5 grams of commonly used illicit drugs including cocaine, ecstasy, ice, heroin, LSD and amphetamines, by removing all criminal penalties in October.

NSW Greens MLC Cate Faehrmann has proposed fully legalising illicit drugs to address the cocaine gangs, while earlier this month Legalise Cannabis Party MP Jeremy Buckingham called for a cautioning scheme for illicit drugs including cocaine.

Drug diversion

When rejecting decriminalisation, the previous government instead put forward suggestions for de-penalisation and pre-court diversion schemes, where people could be cautioned and sent to health intervention programs when caught with small amounts of illicit substances, and only charged following repeat incidents.

Advice for whether health services were adequately equipped for this scheme to be implemented was supposed to be provided in June, but this advice has yet to be publicly released. NSW still has no official policy on drug diversion.

Instead, the Drug Court of NSW can hold new offenders accountable to rehabilitation schemes, with $141 million in extra funding for expanded justice initiatives announced following the ice inquiry.

But these court diversions are seldom used: In 2022, fewer than 500 offenders charged with non-cannabis-related illicit drug offences were referred to a diversion scheme. Just 64 of those were for cocaine.

A major issue with diversion is cocaine’s user demographic. As the UN’s Global Report on Cocaine 2023 notes, Australian cocaine users are “occasional users” who may not require health and social-service intervention like intensive users who smoke or inject cocaine derivatives.

National Drug Research Institute Adjunct Professor Nicole Lee said diversion models risked wasting treatment resources, with infrequent users taking up key treatment spaces.

One study estimated that, as of 2017, up to half of the estimated 755,000 people likely to seek alcohol and drug treatment in Australia were unable to get it.

“These are people who probably don’t need treatment but are taking up treatment space. The diversion model has drawbacks,” Lee said.

Police can also issue $400 on-the-spot fines for small-quantity drug possession instead of charging people, though Lee warned these schemes can be fraught with bias.

“[Fines] depend on how hard-line the police officer is or whether they’ve had a bad day. They don’t actually deter people from using,” she said.

Indigenous adults are significantly less likely to receive cannabis cautions compared with non-Indigenous offenders, according to the NSW Bureau of Crime Statistics and Research.

A spokesperson for NSW Police said officers were encouraged to exercise discretion and issue a caution to those eligible, though to receive a caution a person must admit to the offence.

“All cases are treated independently, and decisions regarding charges and cautions are made by the officers in charge of those incidents,” the spokesperson said.

Law and order

Cocaine seizures have reached record highs, with the Australian Federal Police taking 8.9 tonnes in 2022. This year they intercepted a haul of 850 kilograms, worth an estimated $320 million in street deals.

Cocaine use and possession offences have also hit 10-year highs in NSW, with 2630 incidents in the year to March 2023 – 336 more compared with the previous year, with a notable increase in Sydney-based offences.

Police have also been given new powers to search the homes, cars and persons of those under drug supply prohibition orders in select LGAs as part of a two-year trial commencing in 2022.

In response to the spike in offences in specific LGAs, a spokesperson for NSW Police said it focuses on “organised crime activities throughout the entire state”.

“The success of large-scale police operations come in large part from the cooperation of multiple commands and agencies,” the spokesperson said.

“Results are reflective of the efforts of law enforcement working with partners to better understand and address drug issues caused by organised crime in rural and regional NSW.”

NSW Police Commissioner Karen Webb declined to be interviewed.

When asked whether decriminalisation would affect police drug investigations, with users not sharing information with police when charged, the spokesperson said intelligence played a “pivotal part” when tackling drug supply chains.

Lee said large-scale police operations did little to address demand.

“Large seizures, crackdowns and campaigns make a tiny dent in use, and then everything just goes back to normal. Even arresting big-time drug dealers and big drug syndicates make a blip on the availability of drugs and the number of people using,” she said.

“When you spend $1 on drug treatment, you get $7 returned to the community on savings on people using healthcare and not being part of the community. But every dollar we spend on policing drugs costs us $1.30.

“It doesn’t matter what your thoughts are about whether people should or should not be using it. We just need a different way to deal with it.”

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