Design and Implementation of Australia's First Drug Court
| Author | Ruth Lawrence,Karen Freeman |
| Date | 01 April 2002 |
| DOI | 10.1375/acri.35.1.63 |
| Published date | 01 April 2002 |
of Australia’s First Drug Court
Ruth Lawrence and Karen Freeman
NSW Commission for Children and Young People
and NSW Bureau of Crime Statistics and Research
In 1999 the New South Wales government implemented an evaluated
trial of the first drug court in Australia. This paper outlines the initial
design and legislative framework of the Court, and the Court’s operation
over the first six months. For the benefit of policymakers and researchers,
challenges that arose in the initial implementation and evaluation process
are outlined. Although the Court is based on a North American model,
some aspects of the court proved a challenge in the Australian context
(such as the development of rewards and sanctions). Difficulties in imple-
mentation are outlined, including differences in orientation of a health and
welfare perspective compared to a criminal justice perspective and the
importance of adequate IT resources for evaluation purposes and for a
‘paperless’ court. In outlining these challenges this article concentrates on
the initial implementation phase of a new policy initiative. Long-term
evaluation of the project will determine the true success of the Court.
With significant numbers of drug-related crimes, and disillusionment with tradi-
tional criminal justice approaches to drug-using offenders, there has been renewed
interest in Australia with drug diversion programs. Although forms of drug diver-
sion programs have been operating for ten years (since the South Australian Drug
Assessment and Aid Panel was established in 1984), it was not until 1999 that a
specialised drug court, the Drug Court of NSW, was established.
This paper examines the design, rationale and establishment of the NSW Drug
Court and its development over the first six months1. The paper begins by placing
the development of the court in the context of a variety of drug diversion programs
that have developed in Australia. The paper then focuses on the history and imple-
mentation of the NSW Drug Court including an outline of the legislative frame-
work, the referral process, and the characteristics of participants. For the benefit of
policymakers and researchers contemplating the design, establishment and evalua-
tion of drug courts, the paper concludes by highlighting issues that have arisen in
the implementation and evaluation process in the first six months of operation.
The views expressed are solely the authors and do not reflect the organisations with which
they are affiliated.
Address for correspondence: Ruth Lawrence c/- NSW Bureau of Crime Statistics and
Research, GPO Box 6, Sydney NSW 2001, Australia. E-mail: ruth.lawrence@kids.nsw.gov.au
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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VOLUME 35 NUMBER 1 2002 PP. 63–78
RUTH LAWRENCE AND KAREN FREEMAN
Drug Diversion Programs in Australia
There has been a rebirth of interest in diversion systems in Australia. The concept of
drug diversion has been adopted by all Australian governments and by the Australian
National Council on Drugs, and there has been agreement to implement a national
approach to diversion. The aim of drug diversion programs is to divert offenders who
use illicit drugs into treatment in order to address their drug dependency and curb
their criminal activity. The underlying philosophy of the programs is that a health
and welfare approach is more effective in the long term by addressing drug addiction
which is seen to be the cause of the offending behaviour. The programs also rest on
the tenet that legally coerced treatment for drug abuse is effective.
By definition there are connections between illicit drug use and the criminal
justice system: ‘drug-related crimes’ directly relate to the illicit classification of the
substance, and include possession, use, dealing, trafficking, manufacturing or
growing an illicit substance; while more indirect connections are crimes such as
property crimes committed by an illicit drug user, or crimes which are committed
when a person is under the influence of an illicit substance. Study on illicit drugs
and property crime reveal that it is not a straight trajectory from drug use into
crime, as a heroin user may have already been involved in criminal activity before
he or she was using heroin (Stevenson & Forsythe, 1998; Dobinson & Ward,
1985). The causal connections between drug use and criminal activity remain
complex (see Makkai, 1999a, 1999b).
Various forms of drug diversion programs are currently operating in four
Australian states and the Australian Capital Territory (Queensland Criminal
Justice Commission, 1999). Several programs have been set up as pilot programs or
trials with evaluations to test if the particular drug diversion program is successful
as a criminal justice intervention. Programs vary in the offender profile targeted,
the degree of supervision offered by the court, the treatment offered, and the stage
of the prosecution process at which offenders are recruited into treatment. Some
programs target all offenders with a certain category of offence. The South
Australian Drug Assessment and Aid Panel, which was set up in 1984, diverts all
persons with simple drug possession offences to a panel. In contrast, other diversion
programs select participants according to the offenders’ criminal justice history.
The Victorian Broadmeadows Magistrates’ Court, for example, is a pre-trial scheme
that diverts first-time offenders into rehabilitation (Criminal Justice Commission,
1999). Different diversionary programs also have treatment orders which vary in
length. In the ACT a Treatment Assessment Panel can recommend that an
offender undertakes treatment for up to two years. Other programs offer specific
short-term intensive treatment options. In contrast, in the Drug and Alcohol
Intervention Program (DAIP) in NSW, which is a deferred sentencing program,
offenders undertake an intensive treatment program including group-based work
which is usually completed within a six-month period (Queensland Criminal
Justice Commission, 1999).
A study on diversion in Australia (Australian Bureau of Criminal Intelligence
in Swain, 1999) identified five distinct types of diversion practices: informal police
diversion, formal police diversion, statutory diversion, prosecutorial diversion and
judicial diversion. These types of diversion vary according to who is doing the
64
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
DESIGN AND IMPLEMENTATION OF AUSTRALIA’S FIRST DRUG COURT
diversion (police, assessment panels, prosecutors, or judiciary), and whether the
process of diversion has been formalised or made statutory. Freiberg (2000) has
recently presented a comprehensive overview and critical analysis of drug diversion
programs in Australia.
Drug Courts
Drug courts are specialised courts which only work with drug-dependent offenders.
Court-monitored drug treatment is provided while drug-dependent offenders are
diverted from imprisonment. The NSW Drug Court is fashioned on key elements
of the US drug court model. Drug courts in the US were developed as a response to
an overloaded court system where judges were seeing ‘ever-increasing numbers of
felony cases involving drugs’ (Bean, 1996, p. 718). The idea of having a specialised
drug court was initiated and developed by judges, with one of the first courts intro-
duced in Miami in 1989. The initiative was seen by some to return case manage-
ment control to judges whose discretion had been eroded from policies such as the
‘three strikes’ policy (Bean, 1996).
Although US drug courts vary in each jurisdiction, they share key components
which include: integration of drug and alcohol treatment services with the court;
provision of a range of treatment services; adoption of a nonadversarial approach
where prosecution and defence lawyers work together in the drug court team;
frequent drug testing to monitor participant progress; a coordinated strategy;
ongoing judicial interaction with each participant; continuing interdisciplinary
education, monitoring and evaluation of program effectiveness; and development
of partnerships with other drug courts, public agencies and the community (OJP,
1997; Murphy, 1997; Makkai, 1998). The target group of US drug courts is non-
violent substance-abusing offenders (although intake criteria may be flexible as in
Dade County, Florida: GAO, 1997). Many programs target first-time offenders with
no prior drug or felony arrests. (Exceptions are Santa Clara County, California,
which targets lengthy substance abuse history, and D.C. Superior Drug Court which
admits offenders with extensive arrest histories: GAO, 1997.) Besides law-abiding
behaviour, the goal of US drug courts is abstinence from illicit drugs and alcohol —
that is becoming ‘clean and sober’ through a lifestyle change (GAO, 1998). The
primary drug of choice varies in different localities and includes alcohol (Delaware,
and Maricopa County), crack/cocaine (Key West, Florida), methamphetamine
(Santa Clara County, CA) and heroin (Bostin, Massachusetts (Belenko, 1998;
Deschenes, Turner & Greenwood, 1995). Many of the US drug courts do not have
heroin-addicted clients.
Although the genesis of the US drug court model was a judge-led initiative in a
handful of courts, the concept was rapidly adopted nationwide. Over a ten year
period a ‘drug court movement’ has evolved, which includes widespread national
support, an association of drug court professionals, a Drug Court Clearinghouse,
provision of technical assistance, some federally funded courts, and twenty-seven
million dollars...
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