Chapter 5Harm minimisation
5.1As outlined in chapter 3, harm reduction and demand reduction join supply reduction as the three pillars of the National Drug Strategy 2017–2026 (theStrategy). The harm reduction and demand reduction pillars primarily impact the consumption of illicit drugs and the individuals that consume them. These measures seek to influence or have impact on the decisions and activities of consumers with the aim of achieving the broader objective of harm minimisation.
5.2Demand reduction measures seek to influence the factors that lead to drug use, including biological, psychosocial and environmental factors. The Strategy identifies the aim of these as preventing uptake and delaying first use; reducing harmful use; and supporting people to recover from drug related problems.
5.3Harm reduction measures respond to risks arising from drug use. The Strategy states that these encourage safer behaviours and reduce preventable risk factors, and ‘can contribute to a reduction in health and social inequalities among specific population groups’. These strategies are largely implemented at the state and territory level, and jurisdictions around Australia have introduced a range of measures, including access to needle and syringe programs, safe drug consumption sites, and the introduction of diversionary pathways from the criminal justice system to treatment services.
5.4While harm minimisation is the principle that underpins the Strategy as a whole, in this inquiry, this term was also used to refer to measures under the demand and harm reduction pillars. Therefore, in this chapter, ‘harm minimisation’ will be used in a similar way.
5.5A significant amount of evidence provided to this committee discussed various harm minimisation measures. This chapter provides an overview of two of these, namely:
decriminalisation of personal use; and
drug checking and safe injecting facilities.
5.6This chapter then identifies areas of possible reform or improvement, particularly in relation to the activities of law enforcement, and concludes with a discussion of some of the major challenges for law enforcement presented by the implementation of harm minimisation measures.
Decriminalisation of personal use
Impacts of criminal responses to drug consumption
5.7A significant proportion of evidence to this inquiry argued that personal use of illicit drugs should be addressed by a policy approach which links consumers with health support.
5.8The committee was told that a punitive approach to illicit drug use not only fails to remedy harms, but also increases risks for consumers. Community Legal Centres Australia described some of these harms as follows:
increasing contact with the criminal justice system, particularly for people experiencing poverty, disadvantage, or discrimination (through unequal exercise of discretion by police, courts etc.)
discouraging help-seeking in relation to the trauma that often underlies drug dependence, for emergency assistance in response to overdoses, and for longerterm treatment and rehabilitation
negatively affecting people’s ability to improve their social and economic
circumstances by creating barriers to employment, housing, and other services (through criminal record discrimination)
disrupting people’s efforts at rehabilitation through unnecessary imprisonment – particularly where criminalisation interacts with states’, and territories’ draconian bail laws to leave hundreds of people in prison awaiting trial for drug charges that will not result in a prison sentence when they finally reach court.
failing to provide adequate treatment and rehabilitation services to people in prison.
5.9Community Legal Centres Australia stated that these harms are disproportionally experienced by people experiencing poverty, homelessness, mental ill-health and trauma, and highlighted the particular impact on Aboriginal and Torres Strait Islander people, who are more likely to face charges for minor drug offences than non-Indigenous people.
5.10The Australian Criminal Intelligence Commission’s Illicit Drug Data Report 2020‑21 contains data on the number of drug‑related arrests during that financial year around Australia. It recorded that of the 140,624 drug arrests during that financial year, 122,824 arrests were for consumer-related offences, while 16,190 were for providing drugs. The consumer-related arrests included arrests that were dealt with through other means, such as Cannabis Expiation Notices in South Australia (SA CENs), Cannabis Intervention Requirements in Western Australia (WA CIRs), Drug Infringement Notices in the Northern Territory (NT DINs), and Simple Cannabis Offence Notices in the Australian Capital Territory (ACT SCONs). A full breakdown of these consumer-related offences is set out in Figure 5.1 below.
Figure 5.1Illicit Drug Data Report 2020-21: Number of arrests for drug consumer-related offences
Source: ACIC, Illicit Drug Data Report 2020-21, October 2023, p. 149.
5.11Some witnesses expressed concerns that a focus by law enforcement on drug possession is leading to high numbers of people coming into contact with the criminal justice system, which may have ongoing consequences for individuals and the justice system.
5.12However, police and police associations were clear that their main focus is on drug trafficking, and that low level possession charges are often resolved with fines and diversion programs, rather than incarceration. South Australia Police told the committee that it ‘has a clear policy that ensures youth who are found with simple possession of illicit drugs…are referred to options which are likely to reduce or avoid their appearance in court’. The Police Association of Victoria (TPAV) pointed out that the greater likelihood is that individuals may be charged with drug offending ‘in conjunction with other criminal offences’.
5.13Mr Scott Weber, Chief Executive Officer of the Police Federation of Australia told the committee that in the absence of other factors, it is unlikely that a first interaction between police and an individual caught with illicit drugs in their possession will lead to the person being sent to jail. Mr Weber told the committee that particularly where the drug found is cannabis, the possessor would likely receive a caution and a referral to an awareness education program. Where the substance is a heavier drug, such as cocaine, heroin or ice, there would be a charging process, but would likely lead to a diversionary program or mandatory education.
5.14The ACIC suggested that further research may clarify what proportion of arrests for possession have occurred concurrently with other charges:
…research could seek to clarify this issue by examining the proportion of people arrested for possession of illicit drugs who are concurrently charged with another criminal offence, and who would not have come to law enforcement attention but for the concurrent (nondrug related) offence. Research of this type would increase understanding of the nature and extent of drug related offending and consider the discretion exercised and action taken by law enforcement officers in relation to drug offences.
Overview of decriminalisation
5.15Decriminalisation was put forward by inquiry participants as a harm minimisation strategy that removes drug users from the criminal justice system and instead connects them with health support.
5.16Windana Drug and Alcohol Recovery described decriminalisation as follows:
The decriminalisation of illicit drug use would instead see the creation of infringements or administrative sanctions for the personal and use of drugs, moving these matters outside the remit of the criminal justice system and towards the public health system.
Decriminalisation versus legalisation
5.17Decriminalisation was distinguished from legalisation, which occurs when illicit drugs are legalised and comprehensive laws are enacted to regulate their use, supply and access. Mr Greg Denham, the Australian Representative of Law Enforcement Action Partnerships summarised this by describing legalisation as 'regulation and controlled availability on a scale'.
5.18Mr Gino Vumbaca, President of Harm Reduction Australia, drew a comparison between regulation of illicit drugs and the current approach taken to alcohol and tobacco:
Like we do with alcohol and tobacco, we have restrictions around that. No‑one's saying legalisation means it's available anywhere and you can buy it at any service station, any milk bar or whatever in the country. We're talking about removing the criminal penalties associated with it and not putting people before the criminal justice system because they happen to decide to intake a particular substance.
5.19Professor Nick Crofts, Executive Director of the Global Law Enforcement and Public Health Association, argued that at present, the illegal status of illicit drugs means that the ‘regulation’ of these substances falls to criminals. He stated:
If it is legal and it can be regulated—and 'regulated' means in lots of different ways. It doesn't mean over-the-counter sale or street corner sale; it can be on prescription, it can be all sorts of different ways, depending on what the drug is and what the situation is.
Types of decriminalisation—de jure versus de facto
5.20There are different types of decriminalisation: de facto and de jure decriminalisation. Turning Point and the Monash Addiction Research Centre described this distinction as follows:
In law (or de jure) decriminalisation would see drug use remain illegal, but criminal penalties for personal possession and use of drugs would either be removed from the law or replaced with civil penalties such as fines, or administrative penalties such as restrictions on attending designated areas. By comparison, in practice (de facto) decriminalisation retains criminal penalties in law but seeks to prevent them from being applied.
5.21Figure 5.2 below identifies some of the key distinctions between de jure and defacto decriminalisation.
Figure 5.2 Description of de jure and de facto decriminalisation models
Source: Australian Alcohol and other Drugs Council, Submission 24, p. 21.
De jure decriminalisation
5.22The committee was informed that examples of a de jure decriminalisation approach currently operate in certain jurisdictions around Australia, including:
the Drugs of Dependence (Personal Use) Amendment Act 2022 in the Australian Capital Territory, which commenced operation on 28October2023. Under this reform, individuals in possession of illicit drugs below a certain threshold are issued with a caution, a $100 fine or a referral to a drug diversion program.
the Criminal Infringement Notice Scheme (CINS) in New South Wales, which sees police able to issue up to two on the spot $400 fines for personal drug use and possession which can be waived if the individual accesses treatment support.The CINS is regulated by the Criminal Procedure Amendment (Penalty Notices for Drug Possession) Regulation 2019 (NSW).
the Cannabis Expiation Notice (CEN) scheme in South Australia, which was the first method of de jure decriminalisation introduced in Australia in 1987. Under the scheme, individuals in possession of, or consuming, a prescribed amount of cannabis not in a public or restricted place under the Controlled Substances Act 1984 (SA) are issued an expiation notice. If the expiation fee is paid, the individual is not liable to be prosecuted for the offence. A similar cannabis expiation scheme is also in effect in the Northern Territory.
5.23Witnesses told the committee that the benefits associated with de jure decriminalisation are significant. As the thresholds and penalties are clearly outlined in legislation, there is limited police discretion or unintended impacts on particular individuals or groups. As highlighted by the Alcohol and Drug Foundation:
De jure decriminalisation of personal drug use ensures clarity in the application of the law. Clear and consistent legislative approaches are more effective than ad hoc and discretionary measures. Discretion and ad hoc approaches tend to reinforce existing health and judicial inequalities as certain populations have greater exposure to police.
De facto decriminalisation
5.24In comparison to de jure decriminalisation, de facto decriminalisation 'sees the criminal sanctions remain in the law, but law enforcement practices change to not charge individuals with personal drug use'.
5.25To date, de facto decriminalisation is the more common approach taken in Australia, with a range of examples of de facto pathways outlined in the evidence received by the committee.
5.26As advised by the Department of Health and Aged Care (Department of Health), de facto decriminalisation is present in certain forms in jurisdictions around Australia:
All jurisdictions have some form of de facto decriminalisation through diversionary schemes for small amounts of drug possession. Law enforcement or courts may choose to respond to instances of drug possession without pursuing criminal penalties.
5.27Concerns were raised about the operation of de facto decriminalisation models in practice. Most commonly, issues associated with the application of police discretion, particularly in dealing with marginalised groups, were raised with the committee. Professor Dan Lubman, Executive Clinical Director, Turning Point and Director, Monash Addiction Research Centre, explained:
One of the things we're really highlighting is that the response to different Australians depends on where you live and who actually arrests you. We have a number of states that provide really clear drug diversion laws that are in legislation, which are mandated. For example, in the South Australian system it's mandated and 95 per cent of people are given a drug diversion charge, whereas in other jurisdictions that drops to around 50 per cent or less. That's often based on the individual viewpoint of the arresting officer and system.
5.28The Australian Lawyers Alliance (ALA) described allegations of ‘postcode justice’ in NSW where the Cannabis Cautioning Scheme gives police discretion to issue cautions for possession of less than 15 grams of cannabis. The ALA told the committee that statistics from the NSW Bureau of Crime Statistics and Research indicate that cautions are more highly used in areas such as North Sydney (75per cent cautioned), Byron Bay (66 per cent cautioned) and the Northern Beaches (64 per cent cautioned), compared to Penrith (36 per cent cautioned), Newcastle (34 per cent cautioned), Cessnock (28 per cent cautioned) and Singleton (11 per cent cautioned).
5.29Evidence presented to the committee indicated that the use of police discretion to issue cautions instead of charges was more likely to benefit non-Indigenous than Indigenous people. Penington Institute advised that in NSW, 40 per cent of non‑Indigenous people received a caution for minor drug offences, compared with only 11 per cent of Indigenous Australians. The harms caused by these approaches were further expanded by DrKaren Gelb, Acting Chief Executive Officer of Penington Institute, who noted:
We know how harmful it is to be criminalised. We know how harmful it is to have an encounter with police. That's why there's the illicit drug diversion initiative. That's why police have diversion opportunities available. But the evidence also shows that those diversion opportunities are not used equitably across society. It's the more vulnerable, more marginalised parts of the community, such as Aboriginal and Torres Strait Island peoples, who have less access to diversionary opportunities. They're simply not offered to them as often. That diversion, the official program that acknowledges the harms caused by criminalisation, is not as accessible to marginalised communities.
International approaches
5.30Multiple international jurisdictions have decriminalised use and possession of some or all drugs, including Portugal, Netherlands, Switzerland, British Columbia in Canada, Bolivia, Uruguay, Chile and the Czech Republic. In the United States, multiple jurisdictions have legalised cannabis, while the state of Oregon pursued an agenda of decriminalisation in 2020 with respect to small amounts of all drugs.
5.31In discussing the benefits of decriminalisation and legalisation models, witnesses regularly pointed to international examples to highlight the efficacy of these approaches. Given the length of time decriminalisation has been in place in Portugal, that experience is examined in the following paragraphs. The more recent implementation of decriminalisation of all drugs in Oregon is also discussed.
Portugal
5.32In 2001, Portugal comprehensively decriminalised illicit drugs for personal use. This included all cases of consumption, purchase or possession of up to a ten‑day supply of an illicit drug. Individuals found with illicit drugs are subject to administrative sanctions which are determined by the Commissions for the Dissuasion of Drug Addiction. The Commissions consist of legal, health and social work professionals who take a holistic approach to providing access to employment, housing, psychological and medical supports.
5.33Prior to the reforms taking place, the Portuguese Government worked with police to ensure the success of the legislative changes, including through the provision of training and support. Police are still empowered to address drug trafficking and supply, which include harsh penalties.
5.34Crucially, prior to the decriminalisation of illicit drugs in Portugal, significant investment was made by the government in associated health care. The Attorney-General’s Department explained:
Portugal’s decision to legally decriminalise illicit drug possession in 2001 was coupled with ambitious initiatives to improve healthcare responses, leading to an immediate significant reduction in drug-related mortality.
5.35The Alcohol and Drug Foundation explained that increased health spending resulted in an expansion in the number of outpatient treatment units from 50 to 79 between 2000 and 2009. Further, the country invested in a substantial number of needle and syringe programs, and now has triple the number that exists in Spain despite having only a quarter of the population. The Alcohol and Drug Foundation emphasised the importance of the mutual relationship between the two reforms, being decriminalisation and substantial investment in health infrastructure, in achieving positive outcomes through the reforms:
The improved health outcomes that Portugal has seen have required these two reforms alongside one another – without decriminalisation the harms of criminalisation would continue, and without additional investment in health the harms associated with problematic substance use itself would not be adequately addressed.
5.36Evidence to the committee identified a number of positive outcomes that arose out of Portugal’s decriminalisation, including:
HIV diagnoses linked to injecting drug use have declined;
levels of drug use in Portugal have been lower than the European average, with 11.2 per cent of the population having used illicit drugs in their lifetime compared to the European Union (EU) average of 21.7 per cent;
drug-related deaths in Portugal have decreased from the EU median in 2001 to one of the lowest in Europe; and
no observed increase in the use of drugs.
5.37Despite these positive improvements, João Goulão, the Portuguese National Drugs Coordinator and a member of the 10-person committee that first advised the Portuguese Government on decriminalisation, cautioned against considering decriminalisation as a ‘silver bullet’. He stated ‘[i]f you decriminalize and do nothing else, things will get worse’. He emphasised that ‘the most important part was making treatment available to everybody who needed it for free. This was our first goal’.
5.38Recent media reporting suggests that some concerns are being raised in Portugal about rising rates of drug use and overdoses, as well as increased visibility of drug use. This same reporting noted that economic downturns have impacted government funding directed towards Portugal’s drug oversight operation, which decentralised and outsourced part of its operation following a funding drop from €76 million to €16 million in 2012.
Oregon, United States
5.39In 2020, voters in Oregon voted to decriminalise small amounts of illicit drugs. Under these reforms, a person found with less that a prescribed threshold amount can be fined up to US$100. Payment of the fine could be waived if the recipient contacts a dedicated helpline where they are connected with a health professional. Further, a Treatment and Recovery Services fund was established.
5.40In March 2024, the Oregon legislature passed a bill to recriminalise possession of small amounts of drugs such as heroin or methamphetamine, reversing some of the 2020 reforms. The bill also contained provisions intended to expand access to opioid withdrawal and addiction treatment.
5.41According to media reports, the bill follows increases in the number of overdose deaths, an influx of fentanyl, public visibility of drug use and delays in the rollout of health treatment programs promised under the original 2020 reforms.
Concerns about decriminalisation
5.42Not all inquiry participants supported decriminalisation. Drug Free Australia expressed concerns that decriminalisation exacerbates societal and policing problems. It suggested that following decriminalisation, Oregon has observed a measurable increase in the number of overdose deaths. It described the Portugal model as ‘failed’ and argued that drug use and overdose deaths had both increased since 2001 following decriminalisation.
5.43Rural Health Tasmania raised concerns that decriminalisation may lead to greater issues around impairment in working environments, which may have impacts on work health and safety concerns.
5.44The Police Federation of NSW stated that, in its view, decriminalisation of hard drugs, including amphetamines, heroin, cocaine and MDMA, ‘cannot be achieved safely under current circumstances’. Further, it opposed decriminalisation in its entirety, due to the significant practical difficulties for police that could arise. Instead, however, it proposed the legalisation of cannabis, but only following extensive investment in education and health resources. It explained:
Where the governments can institute quality control, put in the education, tax it and drive education with the money that they're getting, let's do that with marijuana first. Put the resources in place and then see how that works for a couple of years so that we've got the resources and the data that you are looking for to move to the other drugs.
Drug checking and safe injecting facilities
5.45Related to decriminalisation, other harm reduction strategies, such as drug testing, safe injecting facilities, needle and syringe exchange programs and treatment were promoted to the committee as evidence-based strategies for mitigating the impacts of drug harm.
5.46The following paragraphs focuses on two such harm minimisation strategies, namely drug checking and safe injecting facilities.
Drug checking
5.47Drug checking facilities allow individuals to have a sample of their drugs tested for content and purity. One such program, CanTEST, operates in Canberra as a fixed site drug checking pilot. Individuals can present to CanTEST with drugs for checking and speak to an on-site nurse who provides general, mental and sexual health advice. CanTEST publishes monthly summaries and releases community notices to alert individuals when certain substances are detected through the program.
5.48The committee heard evidence of the significant impact the CanTEST service is having in the detection of previously unidentified substances circulating in the community:
CanTEST has demonstrated the role that services such as this can play in identifying emerging trends and risks. For example, last October a new recreational drug not previously seen in Australia was identified, thanks to CanTEST. Critically, in December last year [2022], CanTEST identified a nitazene in a substance tested. Nitazenes are extremely potent synthetic opioids, similar to fentanyl, that have very high risk of overdose and death and have already resulted in deaths in Australia.
5.49Professor Suzanne Nielsen, Deputy Director of the Monash Addiction Research Centre, told the committee that drug checking and the knowledge of what is in substances can influence individuals to not consume substances. This was supported by findings in an independent evaluation of the first six months of the CanTEST pilot undertaken by the Australian National University. Representatives of Directions Health Services Ltd, which operates CanTEST, highlighted two findings in particular: that following drug checking by the service, approximately 30 per cent of users were likely to not consume the drug if it contained ingredients that were different to what the user was expecting; and that approximately one in ten samples tested resulted in a drug being discarded at the service.
5.50The committee received evidence that it is not uncommon for CanTEST to turn people away due to overcapacity. Another witness noted that some individuals have travelled to Canberra from Victoria or New South Wales to access the facility. Given the high level of demand for the service, it was suggested by some witnesses that drug-checking services should be expanded.
5.51Recently, drug checking services have been introduced in New South Wales and Queensland. In March 2024, drug checking services were provided at a music festival in Queensland, which was the first time that such facilities had been made available in that state. CheQpoint, a fixed drug checking facility, opened in Brisbane in April 2024. Between April 2024 and April 2025, CheQpoint will open for operation on Friday afternoons and early evenings.
5.52On 8 April 2024, a four-month drug checking research project commenced at the Medically Supervised Injecting Centre (MSIC) in Kings Cross, Sydney. During this period, people intending to use drugs can have their drugs tested by a specialist drug and alcohol clinician and analytical chemist from The Loop Australia. This service occurs one afternoon a week and is funded by The Loop Australia, with initial funding from National Centre for Clinical Research on Emerging Drugs (NCCRED) and support from the University of New South Wales. As this is a research project, this service has not arisen out of a change in policy from the NSW Government or the passage of any new legislation.
5.53Turning Point and the Monash Addiction Centre identified that the success of expanded drug testing operations ‘depends on service users’ willingness to use them; a willingness that is based on the service users being anonymous and not targeted by police’.
5.54Mr Scott Weber, CEO of the Police Federation of Australia, told the committee that despite some initial resistance to the pilot program in Canberra, police have observed ‘a large amount of people go in there and utilise that facility and get education. A lot of people are leaving their pills there and not even utilising them’. Mr Weber expressed a view that this program should be rolled out across the ACT. While acknowledging that drug checking has some benefits, TPAV took a different view, stating that it ‘is opposed to the testing of pills and other illegal drugs for the purpose of consumption of those drugs’.
5.55Professor Lubman, Turning Point and the Monash Addiction Research Centre, said that the Parliamentary Budget Office has estimated that the establishment and operation of 18 drug testing sites, as well as an Australian drug testing agency and a national drug warning system, would cost $16 million per annum.
5.56While acknowledging that drug checking works for ‘some harms and some drug problems in some populations’, Professor Suzanne Nielsen, Deputy Director, Monash Addiction Research Centre, identified that this method isn’t likely to assist other forms of drug use, such as someone who frequently injects heroin. Professor Nielsen stated:
We need to have a range of different solutions and think about how we're making drugs safer and reducing that harm. I think pill testing is one solution that's very important for a range of the population, but we need a much broader vision than that.
Safe injecting facilities
5.57Safe injecting facilities provide a space wherein individuals who inject illicit drugs (such as heroin) can do so in a medically supervised environment and have access to other treatment and support options.
5.58Two safe injecting rooms operate in Australia. The MSIC commenced operation in Kings Cross, Sydney in 2001 and is operated by Uniting. Uniting told the committee that the centre has assisted over 17,000 people since establishment. The nature of the support offered extends beyond safe and sanitised injecting facilities to broader health and social welfare including assisting with access to housing and treatment. Uniting stated that ‘in 1.2 million supervised injections, the centre has successfully managed 10,611 overdoses without any deaths’. The committee heard from a volunteer with Uniting NSW.ACT, MrKevin Street, who accessed the services at the MSIC. Mr Street told the committee:
I had no intention of quitting heroin. I was going to be a heroin addict for the rest of my life, but one of the things that changed was the support I received at MSIC. The lack of stigma and non-judgement from staff was refreshing and unusual to me. I didn't feel like I was being judged as a criminal. I could walk into the service and nurses would ask: 'How are you going today, Kevin?' Being treated in a friendly manner made me feel worthwhile and comfortable. I felt safe.
5.59Mr Street told the committee that with the support of the MSIC, he was able to access treatment facilities and today accesses Buvidal, which is a monthly subcutaneous opioid injection replacement therapy. He stated that he was also able to obtain housing and other medical treatment through referrals and assistance at the MSIC.
5.60A further facility, the Medically Supervised Injecting Room (MSIR) in Richmond, Melbourne, opened as a trial in 2018. In 2023, the facility became ongoing. Between 30 June 2018 to December 2022, 6,750 overdoses had been safely managed at the facility. In July 2020, former Victorian Police Chief Commissioner, Ken Lay, was commissioned by the Victorian Government to report on a location for a second safe injecting facility in Melbourne. On 23April2024, the Victorian Premier stated that a suitable site for the second facility had not been identified. Therefore, the proposed facility will not proceed.
Proposed reforms and areas of future improvement
5.61A number of proposals were put forward by inquiry participants as measures that could improve relationships between law enforcement, the health sector and consumers of illicit drugs. Some of these are discussed below, namely:
coordination and communication between law enforcement and the health sector;
information sharing;
evidence-based messaging; and
the use of drug detection dogs.
Coordination and communication between law enforcement and the health sector
5.62Some inquiry participants described both a need and opportunity for better coordination and interaction between law enforcement and health service providers. Mr Frank Hansen from Harm Reduction Australia described this sentiment as follows:
Advocating for more coordination and support between both the health sector and policing is, I think, one of the things that we've really got to pursue, and both sides have got to be open to [these] suggestions.
5.63Mr Hansen drew upon his experience as a former police officer working in drug policy in the Kings Cross district of Sydney to provide examples of where such interactions have worked well in the past. Mr Hansen stated that despite early concerns that police would disrupt the function of the needle-syringe exchange program in Kings Cross, such fears were not realised. He said that guidelines and operational practices were established, and police were encouraged to support the initiatives, rather than try and disrupt it. Mr Hansen told the committee that in the main, this led to good outcomes. Mr Hansen also described his observations of the Canberra drug checking trial, which he described as ‘an excellent example’ of policing and pill testing working well together.
5.64At the MSIR in Melbourne, however, the committee heard that an ‘excessive police presence’ in the vicinity of the MSIR may have a deterrent effect on those considering using the facilities. In contrast, the committee heard that an exclusion zone was established around the MSIC in Sydney, which, the Police Association of NSW advised, police accepted.
5.65Others said that the approaches to policing, particularly in the context of interactions between police and drug consumers, need to move away from stigmatisation. Professor Nick Crofts told the committee that ‘you can’t look at the role of police and law enforcement in relation to illicit drugs without looking at the whole system’. He said that ‘trauma informed and shame-sensitive policing’ is becoming integrated into policing cultures in Scotland, parts of the UK and other areas around the world.
5.66Submitters suggested that police could improve the health response by providing treatment when responding to overdoses. Naloxone is a medication which can reverse the effects of an opioid overdose. Some submitters argued that naloxone should be included in police officers’ first aid kits. The Western Australia Police Force became the first jurisdiction in Australia to equip its police officers with naloxone with the commencement of a pilot program in July2021. In August 2023, an announcement indicated that naloxone was to become standard issue for police officers.
Information sharing
5.67One area that was flagged as an opportunity for improvement is information sharing with members of the community and between law enforcement and health representatives. Where drugs of concern are identified in the community or harmful batches are known, the committee was told that there is an opportunity for law enforcement to be involved in the reduction of the harm caused by these substances through the activation of information sharing mechanisms. Mr Sam Biondo, Executive Director of the Victorian Drug and Alcohol Foundation, explained this perspective as follows:
The early release of data from police seizures related to the presence of harmful substances, could, for example, be used to prevent fatalities and deter people from consuming high-risk substances which could be in circulation. It could be done rather rapidly via bulletins from the police.
5.68Mr Biondo told the committee that the timely release of police data could assist communities and community services to prepare for influxes of high-risk substances coming into the country. Mr Biondo noted that in 2022, a sizeable amount of fentanyl had been seized by law enforcement, but information about that seizure was publicly released six months later. Mr Biondo said that given the nature of the risks posed by fentanyl, ‘a proactive harm-reduction approach by the police could be a life saver’. This becomes particularly important, the committee was told, in the prevention of fatal overdoses from novel psychoactive substances:
…the contribution to fatal overdose from novel psychoactive substances in 2017 in Victoria was two. That's increased more than 17-fold by 2021, to 35, to the degree where three separate coroners have called for public alert and drug checking facilities, which the state government's yet to act on. Amongst fatalities, it's significant. A lot of the folk who are taking these substances think they're taking something else.
5.69Professor Nielsen and Mr Biondo suggested that a public alert system may also influence the behaviour of individuals to modify people's consumption and reduce harm.
5.70The Australian Alcohol and other Drugs Council (AADC) informed the committee that such a process already exists in South Australia, namely the South Australian Drug Early Warning System (SADEWS). South Australia Police explained that SADEWS is ‘an informal interagency collaboration allowing for the rapid and confidential exchange of information about drugs seizures, usage trends and clinical outcomes associated with drug use in South Australia’. Stakeholders involved in this network include Forensic Science SA, Drug and Alcohol Services SA, SA hospitals, SA universities, SA Pathology and South Australia Police. Information from SADEWS also feeds into the Prompt Response Network (discussed below).
Prompt Response Network
5.71NCCRED has responsibility for the Prompt Response Network (which receives funding from the Australian Government). The Prompt Response Network has the following remit:
We bring together the federal level jurisdiction as well as state and territory jurisdictional representatives from government. We bring together frontline workers, frontline healthcare service providers, key toxicologists and emergency department representatives to network, to bring together and share early information and trends, and to focus on a public health response that then translates into public health messaging for people who consume drugs.
5.72The Prompt Response Network includes three streams of work:
The Know website which brings together all state and territory alerts related to emerging drugs of concern to create a national overview.
A national community network for healthcare providers involved in the drug sector.
The National Signal Register which is a digital platform incorporating de‑identified data to create a national dashboard of incidents.
5.73The committee was told that there is opportunity for law enforcement to engage with the Prompt Response Network. NCCERD explained that this engagement may be possible through community liaison officers, who could:
…bidirectionally share information about how to reduce harms based on some of the trend data they're seeing from things such as seizures as well as what is happening on the ground with people coming into hospital or being admitted through those kinds of services.
5.74The Burnet Institute outlined the unique insights available to law enforcement and how these could be effectively incorporated into the Prompt Response Network:
For street-level content and purity data to inform harm reduction efforts, testing and reporting would need to occur more frequently, ideally in real‑time. Data could be fed into existing drug information systems such as the Prompt Response Network.
Evidence-based messaging
5.75Throughout the inquiry, the committee heard evidence relating to the importance of evidence-based messaging as an effective harm reduction mechanism.
5.76It was argued that stigma remains one of the most significant barriers for drug users to engage in help seeking behaviours. A range of organisations were critical of previous law enforcement campaigns that sought to address drug-related harms due to their perpetuation of harmful stereotypes and contribution to community stigma for drug users. A number of witnesses spoke to the specific harms caused by the Australian Federal Police’s (AFP) 'Faces of Meth' campaign as an example of the broader consequences for drug users. Such campaigns, the committee was told, increase stigma and barriers to care and accessing care.
5.77Dr Stephanie Kershaw of the Matilda Centre for Research in Mental Health and Substance Use at the University of Sydney emphasised that future campaigns should be evidence-based. Dr Kershaw stated that campaigns demonstrating people with lived or living experience have been shown through evidence to be very effective.
5.78The AFP told the committee that it is conscious of the implications of stigmatising media messaging and was looking to take different approaches. It stated:
The AFP's approach to media on illicit drugs has evolved over time through careful review of public reactions to, and engagement with, AFP content. Instead of employing scare tactics - we look to engage the community on the issue of harm and explain the reasons for our enforcement activities. We recognise that if our content isolates or pushes members of the community away, they are less likely to engage with police and absorb the information provided through AFP media channels.
Use of drug detection dogs
5.79The use of detection dogs to police drug possession was criticised by some submitters for its inaccuracy and potential harm-inducing effects.
5.80The committee was told that the presence of drug dogs may encourage individuals to consume all drugs in their possession, which may be a harmful amount. MsMichala Kowalski from the Drug Policy Modelling Program at the University of New South Wales stated that survey evidence suggested around 10 per cent of respondents indicated they would consume all drugs in their possession when they saw high-visibility policing (including detection dogs). Further, the presence of detection dogs may have influenced individuals to consume drugs that are harder for dogs to detect but may have higher risk profiles.
5.81Other inquiry participants questioned the efficacy of drug detection dogs and noted a report by the NSW Special Commission of Inquiry into the Drug Ice. This report stated that in 2018-19, of 11,000 people searched following a positive drug detection dog indication, illicit drugs were found on 29.6 per cent of those searched.
5.82Other data on drug detection dog indications was tabled in the NSW Legislative Council by the Minister representing the Minister for Police and Counter‑terrorism in September 2024. This data indicates that between 1January 2022 and 30 June 2023, drugs were detected on approximately 26percent of occasions following indications from detection dogs. The same data demonstrated a similar trend over ten years, from 1January 2013 to 30June2023, during which the accuracy rate was approximately 25 per cent.
5.83Mr Tony Bear, Strategy and Relationships Manager at the Police Association of NSW, told the committee the ‘police are but a tool of government’. Likewise, he explained that drug detection dogs are also ‘a tool in protecting or enforcing the legislature from government’.
5.84Mr Wayne Gatt, Secretary of TPAV, told the committee that a positive response from a detection dog provides police ‘with a reasonable belief to conduct a further inquiry’, which would generally be a full search of that person. Both MrGatt and Mr Weber from the Police Federation of Australia identified that dogs may pick up a scent on an individual if they were recently in possession of illicit drugs. Mr Weber said that where this may be the case, the false detection may provide an opportunity for police to have a conversation with an individual to educate them.
Challenges for law enforcement
5.85Evidence to this inquiry indicates that progressively, a greater number of jurisdictions, both domestically and internationally, are exploring and implementing health focused harm minimisation measures and removing criminal sanctions for consumption-related drug offences. A few submissions, particularly those from police associations, highlighted that a number of challenges must be recognised and addressed in the progression of any such reforms. They include:
community safety concerns;
road safety and impairment; and
the availability of health treatment facilities.
5.86Each are discussed below.
Community safety
5.87Some witnesses emphasised that movements toward decriminalisation could have potential ramifications that extend beyond individual drug users to their families and also the broader community.
5.88The AFP told the committee that police ‘witness first-hand the connections between illicit substances and the cycles of crime’, stating that ‘drug use can drive crime’. The effects of this harm may be experienced as ‘individual or community-level harm (such as increased family violence and road trauma) through to sophisticated, and often violent organised crime, placing the broader community's safety at risk’. It pointed to ACT Policing data that ‘demonstrates a correlation between drug use and other offending, including property crime, assaults and driving offences’. It stated:
Anecdotally, ACT Policing members report that they observe crime in "peaks and troughs" in line with substance users "highs and lows". For instance, individuals are observed by police to commit crime in line with their "highs" from methamphetamine. Offenders have told police that they commit more crime to fund their drug habit due to either a lack of supply of that drug, or lower drug purity (meaning, where the "high" does not last as long as illicit substances of higher purity).
5.89The police associations in Victoria and NSW emphasised the importance of maintaining the safety of police officers and community members in the course of any reform agenda.
5.90As mentioned above, the Police Association of NSW stated that at present, a threshold has not yet been met to ensure that community safety would be protected in any reform agenda that involved the decriminalisation of any drugs, and the legalisation of drugs other than cannabis.
5.91TPAV emphasised that community safety is the ‘foremost consideration’ for police in the contemplation or consideration of any reform process. It provided two examples where it suggests that harm minimisation measures may potentially lead or have led to an increase in public safety concerns.
5.92First, TPAV noted that the decriminalisation of public drunkenness in Victoria has created a scenario where police called to resolve situations involving an intoxicated person are unable to act in the interest of the community. It raised concerns that the decriminalisation of illicit drugs may have a similar safety impact. It queried what, if any, powers police would have to detain a person pending ambulance attendance and urged that safeguards be put in place should decriminalisation occur to ensure police retain necessary powers to account for community safety.
5.93Second, while acknowledging the positive impact of the MSIR on heroin related deaths in the local community, TPAV submitted that it ‘has come at a significant detriment to the amenity of the local area and the lifestyle of its residents’. Further, surveys of TPAV members in 2019 and 2022 indicate that police working in the vicinity of the centre had observed a detrimental impact on policing and crime since the opening of the facility. Mr Gatt, TPAV, argued that problems with the existing facility should be addressed and rectified before any additional rooms are established at a state and federal level.
5.94A different experience appears to have occurred in relation to the MSIC in Kings Cross, Sydney. Uniting NSW.ACT stated that residents surrounding the MSIC supported the opening of the facility because they were ‘sick of the status quo’. Uniting stated that this support increased over time, attributing this to the reduction of drug use and the numbers of discarded syringes in public settings.
Road safety and impairment
5.95A major concern raised in the context of decriminalisation is the impact that decriminalised drug use may have on road safety, and in particular, the ability of law enforcement to appropriately police driving impairment.
5.96The ACIC’s Illicit Drug Data Report 2020-21 included information on drug driving. Its key findings were:
amphetamine/methamphetamine was the most commonly detected drug in drug driving tests conducted during 2020-21;
male drivers accounted for most positive drug driving tests;
the 30 to 39 age group accounted for more positive drug driving tests than any other age group tested; and
drivers who tested positive to only one drug accounted for the majority of positive test results in all jurisdictions except Tasmania.
5.97The Illicit Drug Data Report stated that ‘the likelihood of a driver who tests positive to a drug being involved in a crash is higher compared to a driver who has not consumed a drug’. It drew upon research published by the Royal Australasian College of General Practitioners and commentary from the Alcohol and Drug Foundation which described the side effects of different drugs and provided a crash risk estimate of benzodiazepines, opioids and cannabis. That information is reproduced in Figure5.3 below.
Figure 5.3Commonly detected drug classes, their Crash Risk Estimate and associated side effects
Source: Royal Australian College of General Practitioners and the Alcohol and Drugs Foundation in ACIC, Illicit Drug Data Report 2020-21, October 2023, p.9.
5.98TPAV expressed concerns about the risks to road users of illicit drug use, including both consumers and ‘innocent’ road users who may be impacted as a result of another’s use of drugs. It stated that ‘the influence of illicit drugs in road trauma is increasing, yet the capabilities of police to screen for illicit drugs at the roadside is not’. It suggested that 41 per cent of motorists and motorcyclists killed in Victoria in the last five years had drugs detected in their system, with cannabis and stimulants the most widely detected.
5.99Currently, in all states and territories except Tasmania, it is an offence to drive while illicit drugs are detected in the driver’s system. The determinative factor for criminality is not the level of impairment or intoxication of the driver, but rather whether such a substance is present in drivers’ bloodstream.
5.100Some inquiry participants argued that impairment should be the determinative factor for legal liability, rather than the presence of the substance alone. In this regard, particular attention was directed towards cannabis. The committee was told that cannabis remains traceable within a consumer’s system after the substance has ceased to be intoxicating. In most cases, cannabis can remain in an individual's system for potentially weeks after use, though it is likely to only having an impairing effect for about four hours on average after use.
5.101However, unlike alcohol, while current tests can detect the presence of drugs in a driver’s system, no reliable test exists to determine levels of illicit drugs, be it cannabis or otherwise, in the bloodstream, or to what degree different levels of drugs are likely to impair the consumer. The Police Federation of Australia stated that it had particular concerns about roadside drug testing in jurisdictions where decriminalisation of cannabis has either been rolled out or considered, noting that unlike roadside testing for alcohol, there is no widely accepted process for assessing impairment for cannabis.
5.102TPAV suggested that determining impairment from cannabis is complex, pointing to research which has found that it is difficult to determine the point at which THC impairment on driving subsides. A study undertaken by the Lambert Centre for Cannabinoid Therapeutics at the University of Sydney found:
There appears to be no universal answer to the question of “how long to wait before driving?” following cannabis use: consideration of multiple factors is therefore required to determine appropriate delays between [cannabis with THC] use and the performance of safety-sensitive tasks.
5.103The study suggested that individuals should wait at least five hours following inhaling cannabis but caveated that recovery time will depend on several factors. Further, oral THC induced impairment may take longer to subside. It stated that further research would ‘permit better characterisation of [THC’s] effects and help inform the development of guidelines and drug-driving legislation to promote safe driving practices’.
5.104Further, TPAV pointed to research conducted by the Lambert Centre in 2019 which found that two devices commonly used for mobile drug testing returned a considerable number of false positive and false negative results. This study concluded that ‘while these devices are useful tools for detecting recent cannabis use, confirmatory testing is absolutely necessary and of the utmost importance’.
5.105TPAV argued that roadside drug testing is ‘considered costly and time intensive, drawing heavily upon police resources’. It stated:
In a recent study involving police across Australian jurisdictions, police emphasised the significant cost and time burden imposed when required to test motorists for the presence of drugs in contrast to alcohol.
5.106It concluded that there is ‘a clear need for further research to be conducted aimed at reducing the high cost and time requirements necessary in roadside drug testing’. It noted that in Victoria, in 2018, the National Transport Commission recommended to the Drug Driving Working Group that a national approach to purchasing drug testing equipment be investigated and developed.
5.107Both TPAV and the Police Federation of Australia argued that decriminalisation of cannabis should not be considered until impairment is able to be measured and policed in the same way as it is for alcohol.
5.108In addition to the defence implemented in Tasmania, it appears that other jurisdictions are exploring the feasibility of changing the current restrictions on driving with THC detected in a person’s system.
5.109In November 2023, the Victorian Parliament passed legislation which enabled the Victorian Government to commission a trial to investigate if there are conditions under which individuals who are prescribed medicinal cannabis with THC can drive safely. The trial will be developed and conducted by an independent research organisation, and will take place in a controlled driving environment, away from public roads.
5.110Recent media reporting suggests that the Western Australian Government is also considering reform, establishing a working group to consider a defence which would enable unimpaired people to drive while using medicinal cannabis under prescription.
Availability of health treatment facilities
5.111The Police Federation of Australia further raised concerns that the current treatment landscape is not sufficient so as to support a rise in demand for services that could occur should decriminalisation take place. A similar sentiment was expressed by the Police Association of NSW which stated that ‘appropriate infrastructure must be in place prior to the implementation of the legislation’. In its view, this includes ‘a regulating body, health service provisions for users, training for all workers involved in the implementation, and a community safety campaign’. The Police Association of NSW stated that without greater investment in health outcomes, ‘the police are then stuck in between and have to cop the 24 hour, seven days a week callouts to overdoses and to these things’.
5.112The AFP expressed a similar view. It stated that it ‘supports in-principle the policy intention of diverting individual drug users from the criminal justice system toward a health-focused response’. However, it cautioned that where users are not diverted to such a response, or that response is ineffective and under resourced, ‘decriminalisation is likely to have unintended consequences for law enforcement’.
5.113As indicated earlier in the report, inquiry participants also stated that the available health infrastructure is not currently adequately resourced nor widely available and requires greater investment. It was stressed to the committee that the benefits of drug decriminalisation ‘are particularly realised where illicit drug decriminalisation occurs with concurrent investment in the health system’.
5.114Professor Lubman, Turning Point and Monash Addiction Research Centre,added that unlike health conditions like cancer, the treatment options available for illicit drug addiction are limited and lacking the sophistication of other responses.
5.115Dr Simon Judkins, Chair of the Mental Health Working Group at the Australasian College for Emergency Medicine, expressed a similar view, adding that the treatment options available to emergency department physicians require improvement. He said:
If we see somebody in the emergency department who has a drug addiction problem and they've come to the emergency department for help, we'll try and refer them to a drug and alcohol service to get that specialist care. Most of the time there's a scrap bit of paper with a phone number on it: 'Give these people a call tomorrow, and they might be able to see you in the next couple of months. By the way, it's going to cost you a lot of money.
5.116Dr Judkins stated that ‘we should have multiple access, multiple specialists, and [treatment] needs to be accessible because people turn up in crisis’.