Police drug diversion program

The majority of drug offences in Queensland involve people in possession of small amounts of illicit drugs for their own personal use. The Police Drug Diversion Program is a legislated program that allows police to offer an eligible person the opportunity to accept a police diversion as an alternative to prosecution. Police drug diversion does not decriminalise or legalise the possession or use of illicit drugs.

From 3 May 2024, the Police Drug Diversion Program, which previously only applied to minor drugs offences involving cannabis, includes a wider range of personal use drug possession offences.

The below information applies to eligible minor drugs offences committed on or after 3 May 2024.

Eligibility

A person is eligible for and must be offered a drug diversion if:

• they have been arrested for, or questioned about, a minor drugs offence defined under s.378B Police Powers and Responsibilities Act 2000.
• they have not committed another indictable offence in circumstances that are related to the minor drugs offence (an indictable offence related to the minor drugs offence, for example, would be if the person possesses another dangerous drug or S4 or S8 medicine of a quantity that is more than the prescribed quantity for a minor drugs offence).
• they have not been previously sentenced to serve a term of imprisonment for supply, trafficking or production of a dangerous drug or precursors.
• a police officer reasonably believes the minor drugs the subject of the minor drugs offence was for personal use.

A minor drugs offence includes:

• possession of a dangerous drug (an offence against the Drugs Misuse Act 1986, section 9) not more than the prescribed quantity; or
• possession of a thing for use in the administration or consumption of a dangerous drug (an offence against the DMR, section 10(1), (2), (4) or (4A) or 10A(1)(a), (b) or (c)); or
• possession of an S4 or S8 medicine not more than the prescribed quantity.

What are the prescribed quantities for a minor drugs offence?

Drug amount thresholds for a minor drugs offence are prescribed in a schedule within the Police Powers and Responsibilities Act 2012.

Drug types included in the definition of a minor drugs offence are:

• All dangerous drugs listed in schedule 1, part 1, part 2 or schedule 2 of the Drugs Misuse Regulation 1987.
• All schedule 4 and schedule 8 medicines as defined in section 11 of the Medicines and Poisons Act 2019.

What opportunities exist under the Police Drug Diversion Program?

The Police Drug Diversion Program includes three tiers of drug diversion opportunities that can be offered to a person in their lifetime.

1. First eligible minor drugs offence –Drug Diversion Warning
2. Second eligible minor drugs offence – Initial Drug Diversion Assessment Program
3. Third eligible minor drugs offence – Subsequent Drug Diversion Assessment Program

The three options are linear, meaning a person will progress through the opportunities consecutively if they are apprehended for minor drugs offences multiple times.

If a person has been previously offered a police drug diversion in Queensland prior to 3 May 2024 (cannabis-only diversion) and they commit another eligible minor drugs offence, they will only be eligible for the ‘subsequent’ Drug Diversion Assessment Program, which is the final diversion opportunity available. This is because the previous (cannabis-only) diversion is considered the ‘initial’ Drug Diversion Assessment Program and diversion opportunities can only be offered consecutively.

What is a minor drugs offence warning?

A minor drugs offence warning is a one-off warning given to an eligible person by a police officer as an alternative to a notice to appear in court for a drug possession offence. The following considerations apply:

• A person does not have to accept a minor drugs offence warning, they may choose to go to court to have the matter dealt with.
• If the person accepts the minor drugs offence warning, they agree to forfeit the drugs/utensils to the state for destruction.
• Once a minor drugs offence warning is received, the matter is finalised and the person does not have to go to court for the drug possession offence.
• The minor drugs offence warning is not part of the person’s criminal history.
• The person will be given a Minor Drugs Offence Warning notice (either paper copy, MMS or email) and a Property Receipt for the seized items.

What is a minor drugs offence diversion to a Drug Diversion Assessment Program?

A Drug Diversion Assessment Program is a diversion opportunity given to an eligible person by a police officer as an alternative to a notice to appear in court for a drug possession offence. It involves a person signing an agreement to complete a Drug Diversion Assessment Program appointment with a Queensland Health-funded Alcohol and Other Drug (AOD) specialist health service.

The following considerations apply:

• A person does not have to accept a Drug Diversion Assessment Program, they may choose to go to court to have the matter dealt with.
• If the person accepts the Drug Diversion Assessment Program, they sign an agreement to participate in and complete a Drug Diversion Assessment Program appointment and agree to forfeit the drugs/utensils to the state for destruction.
• Once a minor drugs offence diversion agreement has been signed, the drug possession matter is finalised and the person does not have to go to court for the drug possession offence.
• The Drug Diversion Assessment Program is not part of the person’s criminal history.
• The person will be given a Minor Drugs Offence Diversion agreement (either paper copy, MMS or email) and a Property Receipt for the seized items.
• The consequence for not participating in and completing the appointment before the date on the agreement is an offence against s 791 of the Police Powers and Responsibilities Act 2000 (Offence to contravene direction or requirement of a police officer).

Benefits of taking part in a police diversion

If a person is offered and accepts a police drug diversion (either a Drug Diversion Warning or a Drug Diversion Assessment Program), they:

• will not be charged with a criminal offence for the minor drugs offence;
• will not have to attend court for the minor drugs offence; and
• will not have a criminal record for the minor drugs offence.

A police drug diversion also provides a person with pathways to access health information and support.

Is drug diversion available to children?

Yes. Children are eligible for the Police Drug Diversion Program and have the same eligibility and number of opportunities as adults. Alternatively, police may offer a child a caution or another diversionary option available under the Youth Justice Act 1992.

What happens if a person is caught with multiple drugs?

A person may be eligible for a police drug diversion for the possession of multiple types of drugs, as long as:

• the investigating officer reasonably believes each drug type is intended for the person’s own use; and
• each drug or medicine type is within the prescribed quantity for a minor drugs offence, as per the Police Powers and Responsibilities Regulation 2012.

What happens when a person is apprehended for a minor drugs offence?

The police officer will investigate the offence, question the person, and decide if the person is eligible for a police drug diversion. If the person is eligible, they will be offered the opportunity to accept either a Drug Diversion Warning or a Drug Diversion Assessment Program (depending on what they are eligible for) and given details about what’s involved.

What happens if a person doesn’t agree to the drug diversion?

A person who has been offered a police drug diversion can decline the offer and have the matter heard in court instead. This means the person would be given a notice to appear before the court for the drug possession offence. Each diversion opportunity can only be offered once, therefore a diversion offer is spent regardless of whether a person agrees to or declines the offer.

What happens if a person agrees to a Police Drug Diversion Warning?

The police officer will issue the person with a Minor Drugs Offence Warning notice (electronically or paper copy) and a Field Property Receipt for the seized drugs/utensils.

The police officer may offer the person an optional police referral to a support service but there is no obligation to accept a police referral offered as part of a drug diversion warning.

The police officer will then release the person at the earliest reasonable opportunity.

What happens if a person agrees to take part in a Drug Diversion Assessment Program?

The police officer will make an appointment for the person with a Queensland-Health funded alcohol and other drug health service. The police officer will discuss with the person the most appropriate way for them to complete the appointment (in-person, telephone or video conference appointment). Wherever possible, the police officer will help to ensure the person can attend an appointment at a date, time and location (if applicable) that’s most appropriate for the person. The program is only available in Queensland.

The police officer will explain to the person (and to the person’s support person if required) that they are required to participate in and complete the Drug Diversion Assessment Program appointment and failing to do so is an offence of contravening the direction of a police officer (section 791 of the Police Powers and Responsibilities Act 2000).

The police officer will ask the person to sign a Minor Drugs Offence Diversion agreement, which will contain the information of the scheduled appointment, the conditions of the diversion and a phone number for reschedules if needed. Once signed, the person will receive a copy of the signed agreement (either electronically or a paper carbon copy).

If the person does not sign the agreement, the officer will commence prosecution in relation to the minor drugs offence (or in the case of a child, police may take other diversion action).

Children, people with disabilities, Aboriginal and Torres Strait Islander people and people from non-English speaking backgrounds have access to appropriate support and advice, as required by the Police Powers and Responsibilities Act 2000.

What happens in a Drug Diversion Assessment Program appointment?

At the diversion appointment, the person will engage with a trained alcohol and other drug counsellor. The appointment will include a confidential discussion about their alcohol and drug use and may include information and education, harm reduction strategies, and other counselling approaches. The session will be tailored to meet the person’s needs and goals.

If following the appointment, the person would like to access further treatment or support, the alcohol and drug counsellor will arrange a referral for them. Accessing further treatment and support is voluntary and is not part of the Police Drug Diversion Program requirements.

Information shared in the appointment remains confidential unless there are concerns about serious harm occurring to the person or someone else. Police are only advised about whether the appointment has been completed.

What happens if a person is not able to attend their Drug Diversion Assessment Program session?

A person agreeing to a Drug Diversion Assessment Program has 90 days from the date of the first scheduled appointment in which to complete their Drug Diversion Assessment Program appointment.

If the person is not able to attend due to extenuating circumstances, they are able to call the Diversion Coordination Service hotline number (which will be on their copy of the signed agreement) to arrange a reschedule within the 90 days. Rescheduled appointments will be subject to availability and therefore it is in the person’s best interest to keep their original appointment.

What happens if a person doesn’t complete their Drug Diversion Assessment Program appointment by the agreed date?

If a person does not participate in and complete their Drug Diversion Assessment Program appointment within the agreed 90 days, they commit an offence of contravening a direction or requirement of a police officer under section 791 Police Powers and Responsibilities Act 2000. This offence may be finalised with an infringement notice, notice to appear in court, no action taken or a caution (for children).

Can I take someone with me to my Drug Diversion Assessment Program appointment?

Yes, this could be a supportive family member or friend for example.

What are the different appointment modes for the Drug Diversion Assessment Program?

The Minor Drugs Offence Diversion agreement form will confirm what mode of appointment has been scheduled by the police officer; in-person, telephone, video conference or group session.

Regardless of the appointment mode, the person is responsible for making all necessary arrangements to participate in the appointment at the scheduled time and date. For example, this might include organising a computer with a camera and microphone (for a video conference), phone with reliable internet connection (for a telephone appointment), a private and quiet environment (e.g. a library room or office), transport, childcare, and time away from work if required.

For a telephone appointment, the person is required to phone the number provided on their drug diversion form.

For a video conferencing appointment, Queensland Health will send a link to the appointment via email or SMS. Queensland Health will not request personal information or payments.

Will a police drug diversion be on a person’s record anywhere?

If a person is offered and accepts a police drug diversion, the minor drugs possession offence will not appear on their reportable criminal history (which is the criminal history that can be requested by employers for example). It will be recorded on the police records and information management system, QPRIME.

Is information given during a Drug Diversion Assessment Program appointment confidential?

All information given by the person to the program provider is strictly confidential. Police will only be advised about whether or not the person participated in and completed their program appointment.

What should a person do if they have lost their drug diversion form?

To get a replacement copy of a Minor Drugs Offence Diversion agreement, the person will need to contact or visit their local Police Station and request another copy.

Legislation

Police drug diversion is legislated under s. 378A Police Powers and Responsibilities Act 2000 'Additional case where arrest for a minor drugs offence may be discontinued' and the Police Powers and Responsibilities Regulations 2012.

Additional relevant legislation includes:

• Drugs Misuse Act 1986
• Drugs Misuse Regulations 1987
• Medicines and Poisons Act 2019

Drug Diversion Legal Advice Line – Legal Aid Queensland

For free and confidential legal advice about the Police Drug Diversion Program, call 1300 004 924 to talk to a lawyer.