Diversion: Australia's alternative to drug law reform

In the late 1990s, there was an increasing push within Australia to decriminalise cannabis and to provide legal access to heroin for those dependent on it. Political circumstances did not permit this, but Australia did adopt an Illicit Drug Diversion Initiative (IDDI), a national agreement to divert illicit drug users away from the police and courts. This has enabled a vast expansion of diversionary opportunities for illicit drug users in Australia. Caitlin Hughes looks at the nature of Australia’s diversion programme and its impacts to date.

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Australia takes a multi-faceted approach to drugs, involving reduction of both supply and demand, with the overall aim being to minimise the harms of drug use to individuals and society. One policy intervention that has increased in prominence in recent years is the diversion of illicit drug users. Diversion involves providing alternate responses to divert an offender out of the criminal justice system or into education and treatment.

While diversion had been mainstream police practice for many years, pre-1999 implementation largely rested on informal mechanisms such as police discretion to not charge an offender and/or ad hoc formal programmes within Australia’s eight states and territories. A significant shift occurred following the adoption of the Illicit Drug Diversion Initiative (IDDI) on 9 April 1999. The IDDI was a formal agreement by the Commonwealth, states and territories to divert minor drug users via police and courts into education and/or treatment. Critical to enabling the expansion of treatment places, it received federal funding (amounting to date to over $490 million).

Somewhat contradictory is that the IDDI funding came through the Coalition Government’s recently adopted National Illicit Drug Strategy ‘Tough on Drugs’. In essence, three factors were integral to the reform: an evidence base on diversion programmes; law enforcement support; and overcoming the political perception that drug diversion was a ‘soft’ reform. The latter was achieved through rhetoric that diversion was ‘tough on drugs’. For example, it did not alter the criminal law and it remained tough on traffickers and offenders who failed to take up diversion. In spite of the rhetoric, the IDDI is essentially a pragmatic and evidence-informed response, one that has received widespread acclaim.

Between 2000 and 2007, 35 new diversion programmes were adopted in Australia, 30 of which were funded by the IDDI. As a consequence, by late 2007, there were 52 diversion programmes operating for drug and drug-related offenders in Australia, with between three and 12 programmes in each state or territory.

The diversion programmes provided across Australia can be categorised into five different types, the characteristics of which are summarised below.

Police diversion for cannabis only: aimed at offenders detected using or possessing 15–100 grams of cannabis. A number of different responses are provided, including cannabis cautioning and cannabis expiation. The former involves a more one-off, therapeutic approach – a formal caution, provision of educational information and optional referral to an education session or telephone service. The latter provides offenders with multiple opportunities to avoid a criminal record through the payment of an expiation fee of $100–300.

Police diversion for other illicit drugs: aimed at offenders using or in possession of between 0.5 grams and 2 grams of amphetamines, cocaine, ecstasy or heroin. Offenders are required to undertake an assessment of their drug use and attend education or counselling sessions.

Police diversion for youth or other drug-related offenders: aimed predominantly at offenders aged 10–18. This approach results in non-therapeutic sanctions including a warning or the requirement to attend a family group conference.

Court diversion for minor drug/ drug-related offenders: aimed at minor offenders with a recognisable drug (predominantly illicit) problem. Most programmes are pre-plea and require that an offender undergo assessment and be deemed as having a treatable drug problem. Eligible offenders then receive tailored drug treatment (predominantly counselling) for a period of 3–4 months while on bail.

Court diversion for serious drug/drug-related offenders: aimed at drugdependent offenders whose offending is directly related to their drug use. Intensive case management, supervision, urine testing and drug treatment for 6–24 months are required. Programmes generally operate pre-sentencing and offer offenders a final chance to avoid imprisonment.

There is variability between the programme designs, which reflects the federal nature of Australia, but with three exceptions, these five programme types operate in all states and territories. The provision of five types of programme reflects best practice principles concerning diversion. Core principles include the need for a broad range of diversion programmes with different levels of interventions, access for all offenders regardless of age, gender, ethnicity or substance of use and careful targeting using clear eligibility criteria.

The critical question is do the programmes work? There are a number of challenges to answering this question, the first of which is differing definitions for ‘work’. Diversion programmes have a variety of goals, for example, reducing the harms from receiving a criminal penalty, reducing offending and increasing access to drug assessment and treatment. Diversion programmes differ in their ability to attain such goals, largely due to their chosen mechanism and target population. For example, the less intensive programmes appear better at reducing demands on police and more intensive programmes appear better at reducing drug use and related problems. Programme outcomes, even among similar programmes, are also often not directly comparable due to population difference.

That said, it has been shown that diversion programmes have had numerous benefits.

Firstly, they have reduced demands on the criminal justice system. For example, the evaluators of the NSW Cannabis Cautioning Programme calculated that the scheme saved 6,000 police hours in each year of operation. This is because fewer offenders were sent to court, and compared to a traditional criminal charge, cannabis cautioning produced a saving of 1.5 hours per officer at the point of arrest and seven hours in cases where an offender would have had to go to court.

Diversion programmes have also reduced offending and the likelihood of imprisonment from reoffending. A national review of 12 police diversion programmes in Australia found the majority of offenders did not reoffend following diversion. Moreover, in spite of marked differences in offending between jurisdictions, the proportionate decrease in offending after diversion was relatively consistent across all jurisdictions, with 69–86 percent of offenders without prior records and 31–54 percent of offenders with prior records not reoffending within 18 months. Even among offenders with prior records – a proven predictor of reoffending – most committed either less or similar levels of offending.

A third benefit has been reduced drug use, frequency of drug use and/or harmful use. For example, the proportion of offenders who self-reported as regular cannabis users decreased from 95 to 74 percent before and after undertaking the Queensland Police Drug Diversion Programme, and participants in the Western Australian Pre-sentence Opportunity Programme also reported significant reductions in self-reported drug use.

Fourthly, the programmes have improved physical health, mental health and relationships. For example, evaluators of the NSW MERIT programme found significant improvements in relation to HIV risk-taking behaviour, poly-drug use behaviour, psychological wellbeing and elements of physical health. They also found improvements (though not
significant) in relation to social functioning.

Lastly, the programmes have increased the cost-effectiveness of responses. For example, studies of the NSW Magistrates Early Referral Into Treatment court diversion programme revealed that drug diversion offered savings equivalent to $2.98 for every $1 invested. This was attributed to reductions in the costs of police investigation, hospitalisations, criminal activity and prison and probation supervision costs.

Studies have also shown that diversion programmes can have counter-productive impacts. A particular concern is the issue of net-widening, whereby the likelihood of receiving formal criminal justice contact is increased following the introduction of diversion programmes. As shown in the South Australian Cannabis Expiation Notice Scheme, net-widening can occur because diversion is faster for police to implement. It can also occur due to the belief that diversion will be beneficial for offenders.

In recent years, there have been two important learnings. First, the likelihood of positive or negative impacts appears shaped by individual programme design, for example, the choice of eligibility criteria. Second, the effectiveness of diversion programmes is shaped by the broader diversionary and criminal justice system design. Good design can be facilitated by careful choice and early evaluation of diversion programmes and considering how the programmes operate together. It also helps to identify potential linkages or referral points between the programmes and reduce potential conflicts and gaps for specific types of offenders, for example, indigenous people.

The Australian Illicit Drug Diversion Initiative demonstrates there are alternatives to drug law reform that have the potential to address drug-related offending. The choice and design of programmes needs to suit local circumstances and goals, but with appropriate design, diversion programmes can offer a very useful and politically palatable way of increasing opportunities to reduce drug use, drug offending and criminal justice costs. At the same time, they provide more humane responses to illicit drug offending.

• Dr Caitlin Hughes is a researcher with the Drug Policy Modelling Program at Australia’s National Drug and Alcohol Research Centre.

References

ADCA (1996). Best practice in the diversion of alcohol and other drug offenders: Proceedings of the ADCA diversion forum. Canberra: Alcohol and other Drugs Council of Australia.

Baker, J., & Goh, D. (2004). The cannabis cautioning scheme three years on: An implementation and outcome evaluation. Sydney: New South Wales Bureau of Crime Statistics and Research.

Bull, M. (2003). Just treatment: a review of international programs for the diversion of drug related offenders from the criminal justice system. Brisbane: School of Justice Studies, QUT.

Bull, M. (2005). A comparative review of best practice guidelines for the diversion of drug related offenders. International Journal of Drug Policy, 16, 223-234.

Christie, P., & Ali, R. (2000). Offences under the cannabis expiation notice scheme in South Australia. Drug and Alcohol Review, 19(3), 251-256.

Crime Research Centre (2007). WA diversion program – Evaluation framework (POP/STIR/IDP). Final report for the Drug and Alcohol Office. Perth: Crime Research Centre, University of Western Australia.

Health Outcomes International Pty Ltd and Turning Point Alcohol and Drug Centre (2004). Evaluation of Queensland Illicit Drug Diversion Initiative (QIDDI) Police Diversion Program (Final Report). Kent Town, SA: Health Outcomes International Pty Ltd.

Howard, J. (1999). Media release: Tough on Drugs Diversion Programme. Canberra: Office of the Prime Minister.

Howard, J. (2002). Media release: Illicit Drug Diversion Initiative. Canberra: Office of the Prime Minister.

Hughes, C., & Ritter, A. (2008). Monograph No. 16: A summary of diversion programs for drug and drug-related offenders in Australia. Sydney: National Drug and Alcohol Research Centre.

Hughes, C. E. (2009). Capitalising upon political opportunities to reform drug policy: A case study into the development of the Australian “Tough on Drugs-Illicit Drug Diversion Initiative”. International Journal of Drug Policy. 20(5), 431-437.

MCDS (2004). The National Drug Strategy: Australia's Integrated Framework 2004-2009. Canberra: Ministerial Council on Drug Strategy.

Morrison, S., & Burdon, M. (2000). The role of police in the diversion of minor alcohol and drug-related offenders (National Campaign Against Drug Abuse Monograph Series: Monograph no. 40). Canberra: Department of Health and Aged Care.

Northern Rivers University Department of Rural Health (2003). Evaluation of the Lismore MERIT Pilot Program Final Report. Lismore: NSW Attorney General's Department.

Payne, J. (2006). Specialty courts: current issues and future prospects. Trends and Issues in Crime and Criminal Justice (317).

Payne, J., Kwiatkowski, M., & Wundersitz, J. (2008). Police drug diversion: a study of criminal offending outcomes (Research and public policy series, no. 97). Canberra: Australian Institute of Criminology.

Pyne, C. (2007). Media release: $165 million for Drug Diversion Initiative.

Roberts, L., & Indermaur, D. (2006). Timely intervention or trapping minnows? The potential for a range of net-widening effects in Australian drug diversion initiatives. Psychiatry, Psychology & Law, 13(2), 220-231.

Wundersitz, J. (2007). Criminal justice responses to drug and drug-related offending: are they working? (Technical and Background Paper No. 25). Canberra: Australian Institite of Criminology.