Early Drug Diversion, Privilege and Racism in NSW Police

Humans have used some form of illicit substance for millennia. From opium to alcohol and hashish, escape into the relaxation or euphoria of an illicit substance have been a common escape from traumas, pain and exhaustion. Sometimes, it’s simply been for pleasure.

For millennia, humankind has also known that illicit substances carry a risk of addiction, altered perception and potential harm to the self and others. Whilst alcohol and tobacco are accepted to varying degrees in Australia, the possession of other substances unless under prescription, is generally illegal. The many addicts who find themselves progressively more dependent, spiralling into a new or worsening haze of mental ill health, poor financial standing and homelessness, creates a social risk and economic drain on health and legal services that seems to perpetually defy all efforts at remediation.

In 1999 the Howard Government introduced the Illicit Drug Diversion Initiative (IDDI). Under a “Tough on Drugs” banner, the scheme was a response to a perception of escalating illicit drug use due to heroin and apparently worsening criminality. The policy marked a shift from the harm minimisation approach of the National Drug Strategy prior in 1985, to a firmer stance on abstinence and reduction of supply.

The NSW Early Drug Diversion Initiative

On the last day of February 2024 the New South Wales Government introduced a new Early Drug Diversion Initiative (EDDI). Targeting adults found in possession of a small quantity of drugs, usually for personal use and not of a trafficable quantity, a person detained may be offered a $400 fine or the opportunity to speak with a nominated health professional over the phone. Note the word “may”, not “will”; the offer of EDDI is entirely at the discretion of the arresting police officer. If not offered, the offender will simply be issued a criminal offence.

There is a limit of two diversions per individual, however those already convicted of serious drug offences are ineligible. The offender must be in possession of no more than one illicit drug, although cannabis is exempt from the provision and has specific pre-existing directions for law enforcement. The service operates through the St. Vincent’s Health Network and is a bold initiative with the potential to capture people before they become addicted, and to assist them to understand the consequences before they become mired in the hell created by drug use. A secondary benefit is the reduction in the number of court appearances, taking pressure off the judicial system.

The benefit to the offender is clear – neither the fine nor the EDDI appear on a criminal record check. More importantly, if the offender would struggle to pay the $400 fine, it provides a means to avoid a payment arrangement via instalments or worse yet, enforcement via the courts. The only requirement is for some information to be shared by the health service with Revenue NSW as proof of compliance so that the offence and fine can be closed out.

NSW versus other jurisdictions

The University of New South Wales DPMP Bulletin No. 31 on Non-Criminal responses to drug use and personal possession in Australia compares details of early drug diversion schemes across Australian states. The number of permitted interventions through diversion schemes is between one and three in other states, with the exception of the Australian Capital Territory, which at this stage sets no threshold.  In the NSW and the ACT the discretion of the police officer is to issue either a fine or diversion to health intervention. In the ACT the decriminalisation of drug possession negates a custodial sentence unless the possession occurs in a public space. As for remaining states, the alternative to diversion is a criminal charge. Thresholds of possession vary substantially across jurisdictions, with NSW setting the lowest levels for cannabis and MDMA, and the second lowest for methamphetamine, heroin and cocaine. In every case the threshold is below the Commonwealth, noting that the latter’s legislation fails to define “small quantities”, as the focus is upon supply rather than possession or use.

As with the harsh limits for possession falling under “personal use”, the maximum criminal penalties for conviction in NSW are among the harshest – two years in prison or twenty penalty units in all cases, regardless of the drug type, including cannabis. Whilst imposition of the maximum penalty is unlikely for a first offence and diversions are possible, the conviction is recorded and will appear on a police report. A penalty unit in NSW is used to calculate a fine, detailed in the Crimes (Sentencing Procedure) Act 1999, and at the time of writing equates to $110.

Implementation and Performance of Drug Diversion Initiatives

Publicly available data on the success of such programs shows that those offered diversion rarely re-offend within 18 months. In all states bar Queensland and South Australia, the exercise of option is at the sole discretion of the police officer who apprehends the offender. In some states, cannabis is not excluded from the initiative, however the figures remain positive. So it makes one wonder why NSW restrictions are so tight and why it is so poorly embraced by its police force.

The NSW Bureau of Crime Statistics and Research (BOCSAR) findings on the success after the first thirteen months of the initiative released in March 2026 reinforce this view. In the 13 months to the end of March 2025, only 1,095 diversions were initiated of a total 11,751 possible opportunities, a mere 9.32%. More concerningly, of those 1,095 diversions, a mere 9% identified as Indigenous. The Aboriginal Legal Service has questioned these statistics and implored authorities to treat drug possession as a health issue, rather than a legal matter.

Indigenous people have not been routinely offered EDDI, indicating that the initiative is favouring those of higher socio-economic standing. Uniting NSW has also responded to the report, noting that the discretion benefits those of greater privilege who are more likely able to afford legal representation to defend themselves in court. In doing so, they will often not proceed to a court date, but rather be diverted to some other program. The clear inference is that no criminal offence will be recorded.

A typical penalty imposed by a local court in NSW for possession at or below the small quantity threshold is $2,200, with or without up to two years in prison. The consequence of discretion on the part of the police is clear – an offender who is not offered diversion can incur much more severe penalties, financially, criminally and socially.

Directions to NSW Police for acting with discretion must meet the following criteria:

1. is found to be in possession of a single prohibited drug;
2. is not involved in any concurrent offences that would require a CAN;
3. has no more than two prior Criminal Infringement Notice for a drug offence;
4. is not suspected of drug driving;
5. is not suspected of drug supply; and
6. has no prior convictions for a serious drug offence.

It is clear that the issues that underpin Indigenous disadvantage and continue to drag upon the Closing the Gap targets require direction, not discretion to police. Whilst this risks net widening, where offences become the subject of a criminal note rather than a discretionary caution by police, the reality is that police automatically favour the harshest possible response for an Indigenous person suspected of an offence compared with their non-Indigenous counterparts. Net widening is an issue only for non-Indigenous offenders and the removal of discretion for the EDDI can only improve options for Aboriginal people without any negative consequences for non-Indigenous offenders. The measure would eliminate the potential for racial discrimination in diversion by police, alleviate the workload of the Aboriginal Legal Service and the courts, reduce the pecuniary impost on offenders and their families, and improve the chances of preventing Indigenous people becoming entrenched in the cycle of offence and arrest.