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Two Strike Drug Scheme in NSW

This brief article discusses a new drug initiative  in NSW known as the Early Drug Diversion Initiative (EDDI) which came into legislation and legal effect on February 29th 2024 via the Justice Legislation Amendment (Penalty Notices) Regulation 2024.  It is commonly referred to as the Two Strike Drug Scheme.

Advantages of Two Strike Drug Scheme

Under a major overhaul of NSW drug laws, drug users caught with small amounts of illicit substances now have the option to attend a counselling course run by NSW Health or pay a fine, rather than go to Court. This development will potentially spare countless recreational users from facing criminal penalties. It is estimated that over 6,000 individuals will benefit from the EDDI as they are diverted away from NSW Courts. 

Under the EDDI, the police will have the discretion to choose non-criminal measures when catching people with personal use quantities of MDMA, cocaine, heroin and ice. With this announcement, NSW falls into line with all other states and territories in Australia.

What drugs does it apply to?

The drugs that EDDI or the Two Strike Drug Scheme applies to are the drugs set out in Schedule 1 of the Drugs Misuse and Trafficking Act 1985.  This includes individuals caught with up to:

  • MDMA, like ecstasy, 0.25 grams or up to 0.75 grams if in tablet form
  • Cocaine, 1 gram 
  • Methyl amphetamines, like ice or speed, 1 gram
  • Heroin, 1 gram

Notably, the scheme does not apply if a person is found with more than one type of drug, excluding cannabis.

The program is similar to one in NSW that covers the possession of small amounts of cannabis for personal use only, called the Cannabis Cautioning Scheme.  For further information, see our article on Cannabis Charges: Everything you need to know.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Can the $400.00 fine be waived?

Under the EDDI, police have the authority to issue a $400.00 criminal infringement notice (fine) to individuals found with small amounts of drugs equivalent to a possession offence. This avenue is open to an individual for a total of two times, before the police discretion on issuing a fine is waived. The Two Strike Drug scheme does not apply to drug supply, dealing or trafficking, manufacturing, people with prior dealing convictions or people with large quantities of drugs. 

One of the major aspects of the proposal includes the ability to have the $400.00 fine waived after the successful completion of a tailored drug and alcohol intervention program, organised through NSW Health. 

Background to Proposed Drug Scheme

According to NSW Health Minister Ryan Park, issues of drug use and addiction are primarily a health concern, and are better addressed through health support, rather than through the courts and criminal justice system. Health Minister Ryan Park emphasised that this scheme is evidence-based and it aligns with community expectations and responding directly to expert input and recommendations from the Special Commission of Inquiry into the drug ice. 

The “ice inquiry”, which was led by Professor Dan Howard, revealed its findings in February 2020 after over a year of hearings. This report recommended the full decriminalisation of drug possession in the state, alongside the introduction of thorough pill testing at music festivals and the discontinuation of drug-sniffing dogs. 

While Greens MP Cate Faehrmann views the change as a step in the right direction, she criticized the government for not fully addressing the ice inquiry’s recommendations. She hopes the reform will put an end to police harassment at train stations and music festivals, particularly in relation to the use of drug detection dogs.

Attorney-General Michael Daley stated that the reforms acknowledge that formal involvement with the criminal justice system often heightens the likelihood of reoffending, which can have widespread effects on employment, housing, and relationships. The aim is to ensure individuals receive the necessary health support rather than becoming entangled in the criminal justice system.

How can BSM help?

The criminal team at Brander Smith McKnight Lawyers appear at all Criminal Courts in NSW and are highly experienced with drug possession offences. Contact us now and we will strongly advocate for you in the legal system, represent you in court and protect your rights. 

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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