CHAPTER 5: DIVERSION AND COMPULSORY TREATMENT

SOUTH AUSTRALIA

The drug diversion scheme operating in South Australia was established when the Controlled Substances Act 1984 provided for the South Australian Drug Assessment and Aid Panel (the panel) as an alternative to the criminal law for illicit drug users.12 The panel is only one of 13 penalty outcomes for drug offenders in South Australia, ranging from a $50 expiation fee for possession of small amounts of cannabis and cannabis resin to $1 million and life imprisonment for the most serious trafficking offence. The underlying philosophy is to make a clear distinction between the drug dealer and the drug user (Gray, Reynolds & Rumbold 1992).

The new Act came about primarily as a result of the recommendation of the Sackville Commission that drug assessment and aid panels should be established to which all persons charged with simple possession offences involving drugs must be referred before a prosecution may proceed. Juvenile Aid Panels were also established - as an alternative to the juvenile court system - which continue to operate and to provide for the diversion of some, but not all, young offenders out of the criminal justice system ([8]Gray, Reynolds & Rumbold 1992).

The panel provides for absolute diversion in so far as the panel and its clients, not the courts and prosecutors, determine the outcome of proceedings. All persons charged with a 'simple possession' offence (i.e. involving personal use of illicit drugs other than cannabis and cannabis resin and including use or possession of implements for the use of an illicit drug) must be referred to the panel, thus precluding any issue of discretion on the part of courts or prosecutors, and removing the offender from the court system ([9]Gray, Reynolds & Rumbold 1992, p129).

The panel, however, considers only a limited number of offences, and although an amendment to the Act permitted courts to refer matters to the panel for the preparation of pre-sentence reports, this power has rarely been exercised ([10]Gray, Reynolds & Rumbold 1992, p130). The panel consists of a lawyer and two people with extensive knowledge of the problems and/or treatment of illicit drug use. Hearings are private and proceedings confidential in order to create an atmosphere of trust. Clients are referred from either the police or the courts, more often the former. Before being dealt with by the panel, the client must have admitted to the offence and be willing to undertake the assessment and any treatment or counselling which may be required. The client may choose the option of being dealt with by the courts. Those who do not appear willing to change their lives and those who do not respond to the initial letter from the panel or attend their appointment are referred back to court.

Those dealt with by the panel must undertake to comply with the directions of the panel and attend panel sessions as requested over a six-month period.13 At the end of this period the panel instructs the court and the police to withdraw the matter, and no record of any drug offence may be used subsequently against the client ([11]Gray, Reynolds & Rumbold 1992, p129).

The major findings of an evaluation of the panel were that:

1. Out of the 1,400 clients seen between May 1985 and September 1991, most were male and in their 20s, directed to the panel for illegal possession of, mostly, amphetamines followed by heroin.
2. The panel did not provide the early intervention hoped for. Although most clients were being offered the opportunity for assessment for treatment for the first time, many already had criminal histories. Intervention at an earlier stage is desirable for a more successful outcome.
3. The amount of polydrug use 'should be seen as a matter of significance and concern. This includes the dangerous - though legal - drugs, alcohol and tobacco, which will often prove more of a problem and potentially more destructive to clients than the illicit drug problem that brought them to the attention of the panel in the first place' ([12]Gray, Reynolds & Rumbold 1992, p133).
4. While cannabis and cannabis resin offences were excluded from the panel's jurisdiction, 'there were indications of extensive and potentially harmful levels of cannabis use among many clients' ([13]Gray, Reynolds & Rumbold 1992, p132).
5. The characteristics of most of the clients were such that the treatment required was based on coping and lifestyle skills 'rather than strategies influenced by models of physiological addiction' ([14]Gray, Reynolds & Rumbold 1992, p132).
6. The panel is only as effective as the treatment and other social supports which are available.
7. The statutory barrier allowing only people over 18 to be seen by the panel means that many have had drug habits for years. Although structured to deal with these cases, the Childrens Aid Panel is not sufficiently a specialist drug assessment and aid body, nor are drugs its primary concern.

Overall 'the justification for the panel as a means of diverting offenders from the criminal justice system and providing intervention opportunities is overwhelming' ([15]Gray, Reynolds & Rumbold 1992, p134). Interviews with criminal justice personnel indicated that the panel is satisfactory from the point of view of cutting down on court congestion and from the point of view that it is treatment-focused rather than punitive. There is also no stigma of a conviction being recorded. However, it seems that within the confines of the Act, the police have the discretion as to what charge to lay, e.g. if the offender is known by the police and has an amount of the drug which could be trafficked, he may instead be charged with trafficking.