Following reports that there has been little progress on two “long overdue” areas of criminal justice reform, the NSW Bar Association has called on the state government to stop “throwing more public money” at the models that do not work.
Questions at a budget estimates last week revealed that there is no progress on treating drug use as the “health issue it is” or on raising the minimum age of criminal responsibility to 10. Both of the long-overdue reforms, the NSW Bar said, would remove people from the criminal justice system who “frankly shouldn’t be there”.
Two years ago, the special commission of inquiry into crystal methamphetamine and other amphetamine-type stimulants recommended that the state government implement a model for the decriminalisation of the use and possession for personal use of prohibited drugs, which it considered a “fundamental and necessary” reform.
It also recommended that the NSW government introduce a legislative police diversion scheme for use and possession for personal use of prohibited drugs, increased resourcing for specialist drug assessment and treatment services.
The NSW Bar said the current model does not work and is “simply perpetuating a cycle of drug use” that is still on the rise. Reflecting on the ongoing use of this model, president Michael McHugh said that “doing the same thing over and over again and expecting a different result is the very definition of madness”.
The Bar Association said it supports the diversionary program as an “important step” towards harm minimisation. Under this approach, a person found in possession of illicit drugs for personal use would be referred by police to an appropriately tailored health, social and/or education intervention for a maximum of three referrals.
“Diverting drug use towards health intervention, education and rehabilitation is not being ‘soft on crime’, nor does it mean this behaviour is not without consequences. It is being smart on crime with the focus on harm reduction for drug users – not drug dealers,” Mr McHugh said. “A depenalisation model is not a radical approach.”
As for the age of criminal responsibility, the budget estimates hearing also revealed that there has been little progress and no national consensus, notwithstanding the government considering the issue for three years from November 2018 before agreeing in November 2021 to develop a proposal to raise the minimum age to 12.
Mr McHugh said that the current minimum age of 10 has “created a cycle of disadvantage” that has had a grossly disproportionate impact on Aboriginal and Torres Strait Islander children. There have been 293 children aged between 10 and 13 who spent time behind bars, and 54 per cent were Aboriginal or Torres Strait Islander.
“While we wait for the government, children as young as 10 are being brought before the courts and held in detention when the medical consensus is that a child’s brain is not sufficiently developed until the age of 14, and that they do not have the required intellectual capacity to be considered criminally responsible.
“The association calls on the NSW government not to delay and raise the minimum age of criminal responsibility to 14,” Mr McHugh commented.
“Both these reforms will remove people from the criminal justice system who frankly shouldn’t be there. The government has taken years to consider these reforms. They are long overdue and it is time for action.”