Aboriginal people in New South Wales are being diverted away from the criminal justice system at significantly lower rates than non-Indigenous people when caught with small amounts of illegal drugs, despite a health-based scheme designed to reduce court involvement having been in place for more than two years.
The Early Drug Diversion Initiative (EDDI), introduced in February 2024, allows people found with small quantities of illicit drugs — excluding cannabis — to receive a $400 fine through a Criminal Infringement Notice (CIN) instead of being charged and sent to court. The fine is waived if the person completes a voluntary telehealth intervention.
But new data released on Monday by the NSW Bureau of Crime Statistics and Research (BOCSAR) raises concerns about whether the scheme is being applied fairly. The figures show Aboriginal people and those living in low socio-economic areas are far more likely to receive a Court Attendance Notice (CAN) than a CIN.
Between February 2024 and March 2025, NSW Police took action against 11,751 people for non-cannabis drug use or possession offences, BOCSAR data shows. Of those, only 9.3 per cent were diverted through EDDI.
While almost three-quarters of those detected were not eligible for diversion — often because they were linked to other offences or carrying more than the threshold amount — BOCSAR Executive Director Jackie Fitzgerald said diversion rates were still low even among those who qualified.
"Only around one in five eligible people were diverted from court, highlighting the significant role police discretion plays in determining whether a Criminal Infringement Notice is issued for drug offences," she said.
The disparity is even more pronounced for Aboriginal people. Among those eligible for the scheme, only nine per cent of Aboriginal people were diverted, compared with 25 per cent of non-Aboriginal people.
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The Aboriginal Legal Service (ALS) NSW/ACT says the figures point to systemic discrimination in policing and show the scheme is failing.
"Even when police have the option to divert an Aboriginal person away from court, they are choosing to charge them and force them to face criminal punishment," says ALS acting CEO Sharif Deen. "This flies in the face of [the] government's Closing the Gap commitments."
BOCSAR's data found diversion was more likely for people with no prior contact with the justice system, and for those found with ecstasy or cocaine rather than methamphetamines.
"While EDDI is intended to reduce court involvement for low-level drug offences, these findings suggest its reach has so far been limited," Ms Fitzgerald said.
"This matters because diversion offers an opportunity to reduce contact with the courts and minimise harm associated with acquiring a criminal record for minor drug offending. This is particularly important for groups such as Aboriginal people and those from disadvantaged backgrounds, who already experience disproportionate contact with the criminal justice system".
The ALS said the low overall diversion rate also exposed deeper flaws in the scheme, including what it described as overly restrictive eligibility rules.
The organisation has renewed calls for the decriminalisation of drug possession for personal use, in line with recommendations from the NSW ice inquiry, as well as a review of police practices and procedures — particularly the use of discretion.
"Experts who work at the coalface have been saying for years: drug use must be approached as a public health issue," Mr Deen said.
"Criminal punishment for drug use only clogs up the courts, and it does real harm to people and communities."
He added that anytime police discretion is used, "we see worse outcomes for our people".
"The NSW Government knows that Aboriginal people are over-represented at every stage of the legal process, from police stops and searches to arrests, charges and imprisonment," he said.
"But the Government is yet to meaningfully confront systemic discrimination and limit the role of police discretion in determining who gets forced into the criminal justice system."
NSW Police have long been accused of targeting First Nations groups — a charge they explicitly deny. Last year, an expert report commissioned by the Justice and Equity Centre (JEC) found NSW Police disproportionately target Aboriginal children and young people through "bail compliance checks".
In 2023, then-NSW Police Commissioner Karen Webb said holding police responsible for Closing the Gap targets would create "competing duties". The comment drew widespread condemnation from lawyers and advocates, who called it an "outrageous statement".
A 2023 report to Parliament by the Law Enforcement Conduct Commission (LECC) found in many cases, police interviews with young people in custody — including Indigenous youth — compromised their right to silence, whilst a 2025 report from the same watchdog recommended that police only conduct home visits when a court order is in place.
