Crime statistics analysis from NSW, the last Australian jurisdiction to introduce a drug diversion program, shows nine per cent of nearly 12,000 relevant drug events between February 2024 and March 2025 resulted in a person being diverted from court.
Only about a quarter of that group were eligible for the diversion program, and only 22 per cent of those eligible people received the diversion.
Critics said the Early Drug Diversion Initiative was poorly designed and police discretion was undermining the intent of the program and exacerbating disadvantage.
The data showed 10 out of every 11 eligible Aboriginal people were sent to court instead of getting a criminal infringement notice (CIN), compared to two out of every three non-Aboriginal people.
A CIN requires a person to complete a telehealth intervention or pay a $400 fine.
The Aboriginal Legal Service said the data showed systemic discrimination within the police force, adding the program was failing First Nations people.
"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," ALS acting chief executive Sharif Deen said.
"Whenever police have the power to decide who can access alternatives to court and avoid criminal charges, we see worse outcomes for our people."
Wealthy people received the lion's share of CINs (46 per cent) despite making up only a quarter of eligible participants.
Almost all people caught with MDMA and/or at a music festival were diverted, along with half caught with cocaine.
But only 8.5 per cent of ice users were diverted for treatment.
Introducing the scheme, NSW Health Minister Ryan Park said it responded directly to expert evidence and recommendations from the state's ice inquiry.
"Drug use and dependence are very much health issues and ones that are far better addressed through health support outside the courts and criminal justice systems," he said in October 2023.
Mr Deen said the data showed the government had done little to confront police use of discretion concerning Indigenous people.
Uniting's NSW/ACT advocacy head Alice Salomon was similarly scathing, saying the force was policing based on postcode and drug type.
"The scheme's poor design, along with police culture, is undermining the intent behind diversion," she said.
"With non-diverted cases flowing into the courts, the report identified significant potential savings for the taxpayers of NSW if the scheme was better utilised."
People eligible for diversion must have a small amount of non-cannabis drugs and have no prior convictions for serious drug offending, among other criteria.
Drug checking at music festivals was introduced into NSW in 2025.
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