NSW’s Early Drug Diversion Initiative – what it means to receive an on-the-spot drug fine instead of a court date
Not every encounter with police over drug possession in NSW results in a charge and a trip to court. For people found with small quantities of prohibited drugs, NSW Police have the option to issue an on-the-spot penalty fine under the Early Drug Diversion Initiative (EDDI) instead of proceeding by way of a Court Attendance Notice. If you have been issued with one of these fines – or if you are concerned about what might happen the next time police find drugs on you – understanding exactly how the scheme works, when it applies, what happens if you do not pay, and what it means for your record is important.
The EDDI is one of several diversion pathways available in NSW for low-level drug offending. Alongside it sits the Cannabis Cautioning Scheme, the Young Offenders Act diversionary process for young people, and the MERIT (Magistrates Early Referral Into Treatment) program for those with drug dependency issues who are eligible for bail. Each pathway has different eligibility requirements and different consequences. Understanding which applies to your situation – and what your options are within it – requires some knowledge of how these schemes actually work.
What the Early Drug Diversion Initiative is
The EDDI is a NSW Police Force program that gives officers the option to issue up to two penalty notices of $400 each to adults detected for low-level prohibited drug offences, instead of charging them and issuing a Court Attendance Notice. The scheme is specifically designed for simple possession of small quantities for personal use. It does not apply to supply offences, to possession above the small quantity threshold, to drug manufacturing, or to trafficking.
The penalty notice operates like a traffic infringement. You can pay the $400 fine, in which case the matter is resolved administratively and no criminal conviction is recorded against you. Alternatively, you can elect to have the matter dealt with by a court, in which case it proceeds as a criminal charge. The decision to elect to court is not irrevocable, but once you have taken that step the matter enters the criminal justice system as a formal charge.
The Cannabis Cautioning Scheme – a different pathway
Separate from the EDDI, NSW Police operate the Cannabis Cautioning Scheme for adults detected for minor cannabis offences. Under this scheme, police can issue a formal caution instead of a charge. The caution is recorded internally but does not appear on standard criminal history checks and cannot be used as evidence in most subsequent proceedings. Adults can receive up to two cautions under the scheme; a third detection for a minor cannabis offence cannot be resolved by caution and must be dealt with in another way.
The caution is accompanied by health information about cannabis use and a referral to treatment services if the person wants them. It is more rehabilitative in character than the EDDI penalty notice. The Cannabis Cautioning Scheme applies specifically to cannabis possession; it does not apply to other prohibited drugs. For those other drugs, the EDDI is the available diversion pathway, not the cautioning scheme.
When police can choose not to use these schemes
Both the EDDI and the Cannabis Cautioning Scheme are discretionary. Police are not required to use them. An officer who has grounds to believe the possession is connected to supply, who is operating during a targeted drug enforcement operation, who has dealt with the same person before (and the person has already used their two EDDI or caution entitlements), or who considers the overall circumstances inappropriate for diversion, can choose to charge rather than divert. The existence of the scheme does not create an entitlement to a penalty notice or a caution.
Factors that commonly influence the decision against diversion include: the nature of the drug (police are sometimes less likely to divert for methamphetamine or heroin than for cannabis), the quantity found (even if technically within the small quantity tier, a quantity closer to the traffickable threshold may attract more scrutiny), the presence of other drug-related equipment at the scene, the location and circumstances of the detection (a drug enforcement operation in a nightclub differs from a routine stop), and the accused’s demeanour and conduct during the encounter.
What two EDDI uses means – the scheme has limits
A person can receive up to two EDDI penalty notices. After two notices have been issued and paid, the scheme is exhausted for that individual. A third detection for a similar possession offence must be dealt with as a formal charge. Courts will be aware of the prior diversions and they may be relevant to the sentencing exercise, particularly for demonstrating that the person has been given multiple opportunities to address their drug use outside the criminal justice system.
This means the EDDI is a resource to be used carefully. A person who uses both diversion opportunities on relatively minor detections and is then found with drugs in circumstances where a more serious charge might have been available has not necessarily served their interests well. Taking legal advice before deciding whether to accept a penalty notice in a situation that might be contested is always worthwhile.
Can you challenge a penalty notice?
Yes. Electing to have the matter dealt with in court is the formal mechanism for challenging a penalty notice. Once the election is made, the matter proceeds as a criminal charge under the Drug Misuse and Trafficking Act 1985 (NSW). The prosecution must then prove all elements of the possession offence beyond reasonable doubt. Grounds for challenging the charge might include: a disputed search – whether the search that produced the drugs was lawfully conducted; a disputed identification of the substance; a disputed assertion of knowledge and control; or a factual dispute about whether the accused was in possession at all.
Going to court carries the risk of a criminal conviction if the charge is proved. However, for a first offender with genuine grounds to contest, or for someone whose circumstances warrant a s 10 conditional release order without conviction, electing to court may produce a better outcome than simply paying the penalty notice and hoping the matter goes away. Legal advice before making the election is strongly recommended.
Young people and the Young Offenders Act
For young people under 18, the Young Offenders Act 1997 (NSW) provides a separate and more extensive diversionary framework. Young people detected for minor drug offences may be eligible for a warning, a formal caution, or referral to a youth justice conference, all of which are alternatives to charge. The Act reflects the legislative policy that young people should be kept out of the formal criminal justice system wherever possible and diverted to processes that address the underlying behaviour. A young person cannot use the EDDI scheme – the Young Offenders Act framework is the relevant pathway for those under 18.
The MERIT program – diversion for those with drug dependency
For adults with established drug dependency problems who are eligible for bail and who would benefit from treatment, the MERIT (Magistrates Early Referral Into Treatment) program provides a structured diversionary pathway within the court process. MERIT is available to Local Court defendants; it is voluntary; and participation is considered by the magistrate at the final hearing. People charged with strictly indictable drug offences are not eligible for MERIT, but those charged with simple possession or lesser matters may be.
Contact Us
At National Criminal Lawyers, we advise on all aspects of low-level drug matters – including whether a penalty notice should be accepted or elected to court, whether the circumstances of a search can be challenged, and whether the available diversionary options are being used to their best advantage. Even a seemingly minor drug matter deserves proper legal advice if there are any complicating factors.
Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
