Diversionary Tactics: A short history of halfway measures on drug law reform in Victoria
By Sione Crawford, CEO of Harm Reduction Victoria.
Just recently – in February 2022 – Fiona Patten of the Reason Party – introduced to the Victorian Parliament the Drugs, Poisons and Controlled Substances Amendment (Decriminalisation of Possession and Use of Drugs of Dependence) Bill 2022. In the end this Bill was not supported by enough people in parliament to be carried through. Instead, the Victorian Labor Government promised to review the laws surrounding the diversion of people who use illicit drugs from the criminal justice system.
In between all of that HRVic sent a letter to our members and undertook a little bit of advocacy in what we would call conditional support of Fiona’s bill. Why though? Why did we not jump right behind this and push it as hard as we could?
Well, the answer is in the language used, in the public understanding of dependence and treatment and harm reduction, and in the confusion of all these things.
Diversion is not decriminalisation
I have personally spoken to high-ranking police officers who truly believe we have a sort of decriminalisation in Victoria, in the form of (limited) drug diversion.
And it was this definition of decriminalisation that the amendments sought to bring into being for all illicit drugs.
In Victoria we have the Cannabis Cautioning Program, the Victoria Police Drug Diversion Program, and Drug Court - Court Referral and Evaluation for Drug Intervention and Treatment (CREDIT).
The first two are aimed at “diverting” people away from the justice system and into healthcare, whereas the Drug Court is part of the justice system and may include imprisonment and directed treatment.
With the diversion programs, a criminal record is not recorded if the diversion plan is stuck to by the offender. This plan will be slightly different for all but generally within twelve months you might have to:
Admit the “wrongdoing” (not the same as admitting guilt in court)
Undertake some form of drug education and/or receive counselling
Make a donation
Do some community service
The diversion must be recommended by the arresting police officer. This is key – the police retain discretion. In Victoria we do not divert anywhere near all those who are eligible, and in addition to this we only allow two diversions.
The decriminalisation amendment put forward earlier this year essentially wanted to expand this approach to all illicit drugs, every time an offence was recorded. The police would have no discretion and would have to issue the person an education or treatment notice to be completed within twelve months. If the plan wasn’t stuck to, the original offence is recorded and the person has to go through the criminal justice system
Even though the world might have been better for many people with this system in place, we think there are better ways forward on this issue.
What it comes down to is:
Do we think diversion for all drugs would be enough to overcome the trauma, the injustice and the needless deaths which this War on Drugs has brought us?
My answer would be no, it isn’t. It isn’t because it keeps the police involved in something that is a health issue at worst and a personal choice similar to whether to consume alcohol or not for most of us. Imagine if alcohol was illegal again and everyone caught with a beer or a rum and cola were sent to counselling, no matter their dependence level? What a waste of time.
But there is a second question:
Would full diversion be a step in the right direction, or would it be a dead-end for decriminalisation in Victoria?
And this is harder to answer. In the end we supported it as an organisation because it was what was on offer, and it was more than the major parties had ever offered. There is a chance that this would be as far as we get on decriminalisation but there was also a chance that in a few years we took another step, and that was our hope.
But it is so disappointing that the level of conversation about this in our country and state is still stuck in the War on Drugs paradigm, where people who use drugs illicitly are either scumbags or sick.
There is no doubt that the worldwide system of drug control, corruption, criminalisation, exploitation and incarceration would take an enormous effort to unpick, but we have to keep pushing and trying to make this happen.
Where are we now?
The Victorian Government committed to reviewing the laws around diversion, but we have not heard of a timeline let alone Terms of Reference. As far as we know this is to be led by the Attorney-General’s office and we have requested that people most affected by these laws – people who use drugs – are a part of the process.
This may at least give us a chance to make the case for wider reform than diversion for all drugs. But if the comments made by politicians when debating Fiona’s Bill amendments are anything to go by, we have a long way to go to convince them the changes will benefit society and not destroy it!
June 2022 update
The Diversion Working Group set up by the Victorian Government includes Harm Reduction Victoria, and while we can’t pre-empt the report that will be written and sent to the relevant Ministers, the name of the Group probably provides a clue. It was clearly stated that this would not be a decriminalisation reform but about ensuring the response is more health based.
The ACT government recently passed legislation that retains police involvement in diversions and cautions and maintains their discretionary powers. This was framed as both decriminalisation and harm reduction – we would strongly contend that it is neither of these things, while still being slightly better than the previous laws. The question is whether this is enough to really change things for people who use drugs? Will it lessen the stigma or the discrimination that we face and will it stop people ending up in prison for possession of drugs? If it doesn’t do these things, is it enough? And what will we, or you, do about it?