We acknowledge the traditional custodians of the land on which we meet today and pay respect to Elders past, present and emerging. We also extend that respect to other Aboriginal and/or Torres Strait Islanders who are joining us here today.

David R Horton, creator, © Aboriginal Studies Press, AIATSIS and Auslig/Sinclair, Knight, Merz, 1996. View an interactive version of the AIATSIS map www.abc.net.au/indigenous/map/ Header Artwork produced for Queensland Health by Gilimbaa

AOD and the law What drug and alcohol workers need to know

Presented by Penny Williams

Wednesday 4 October 2017

Where to find information and advice

• Legal Aid Queensland can:

– provide information and advice about family, criminal and civil law

– refer people to other organisations

– help with dispute resolution in family matters

– provide community legal education.

How we help people facing criminal charges • A duty lawyer service to the arrest courts • Information on our website

– www.legalaid.qld.gov.au • Information at a LAQ office

– seek information over the counter – get assistance to file a LAQ application for aid – face to face at a legal advice clinic

• Call our Client Information Service Centre – 1300 65 11 88

• If you need an interpreter, you can call the Translating and Interpreting Services (TIS)

• For the hearing impaired call us via the National Relay Service.

Online resources Drug and alcohol workers can access: • easy to understand

information

• links to legislation • online and printable

factsheets and guides • links to other websites.

Drugs Misuse Act 1986

Possess illegal drugs: • possession isn’t the same as ownership • you can be in possession of a drug even if you

don't own it and even if haven't used it.

Supply illegal drugs: • giving, distributing, selling, administering,

transporting or supplying • offering to give, distribute, sell, administer,

transport or supply • doing or offering to do anything in preparation for

giving, distributing, selling, administering, transporting or supplying.

The penalties are more serious if you’re an adult and you supply: • to a person 16 years or under • to a person who is intellectually impaired • in an education institution or school • in a correctional facility • to someone who doesn’t know they are being

supplied with drugs.

Traffic illegal drugs: • trafficking is supplying drugs in circumstances of

a business or commercial nature • this can involve large amounts of drugs, and can

be several acts of supply, or one transaction • there doesn’t have to be any actual drugs found

to sustain a charge of trafficking – there could be simply paraphernalia, including “tick sheets” and debt lists etc and typically a large amount messages ie SMS, Wickr, Facebook

Produce illegal drugs: • this includes growing, preparing, manufacturing,

packaging and, or production of drugs • offering to do any of these things.

Possess items: • this includes items used to take drugs (such as a

bong, pipe, syringes) • to produce drugs (such as scales, lights,

agricultural equipment) and items that have been used for a drug offence

• or are intended to be used for a drug offence (such as a bowl, scissors or grinder).

Penalties • Police and Court Drug Diversion • Queensland Integrated Court Referral • CourtLink (to commence Nov 2017) • Drug and Alcohol Assessment Referral • Drug and Alcohol Court

(to commence Nov 2017)

Police diversion

If a person has been arrested or questioned by a police officer about a minor drugs offence involving cannabis they may be eligible to participate in a police drug diversion program. ie Drug Diversion Assessment Program (DDAP).

The police have to offer the chance to attend a DDAP if all of the following apply: • arrested for, or questioned about a minor drugs

offence involving cannabis – ie 50 grams or less of cannabis – the person has items that are, or have been,

used for smoking cannabis - like a bong • hasn’t broken the law in another serious way in

circumstances related to the minor drugs offence – ie robbed someone to get the drugs

• doesn’t have a previous conviction for a violent offence against another person

• has admitted to committing the offence in a recorded interview with the police

• has not been offered a previous diversion program. • The police drug diversion program is only for

minor possession offences related to cannabis. • If the person then attends the program at the

scheduled date and time they won't be charged with a criminal offence and won't have a criminal record for a minor drugs offence.

Court diversion A defendant will be eligible to attend a drug education and information session if they: • are charged with one or more eligible drug offences • appear before the magistrates court or the Childrens Court • admit guilt to the offence • have not previously been convicted of, or are currently facing

charges of a sexual nature or a drug offence dealt with in the District or Supreme Court

• if they have been offered two previous diversions, including a diversion under the police diversion program, they will not be eligible for a further diversion.

Eligible drug offences include: • possession of a minor amount of drugs • possession of anything used in connection with

a drug offence if the thing was for personal use • possession of items used for the administration,

consumption or smoking of dangerous drugs • failure to take reasonable care of a syringe • failure to dispose of a syringe.

Examples of minor amounts of common drugs include: • cannabis—50g • heroin—1g • methadone—1g • amphetamine—1g • cocaine—1 g • LSD—3 tickets.

The full list of minor drug quantities can be found in Schedule 1 of the Penalties and Sentences Regulation 2005.

How does the program work? People under 17 • If the defendant is under 17 they attend at the Children's Court. • A court diversion officer (CDO) will talk with them. • The matter is heard in court and the CDO tells the court if they

qualify for the program. The court will send them away and give them a chance to attend the drug education and information session.

People 17 and over • If 17 or over, the defendant will go to the magistrate’s court. • A court diversion officer (CDO) will talk with them. • The matter is heard in court and the CDO tells the court if they

qualify for the program. • However, it is still the magistrates decision whether court diversion

is offered as the penalty.

The advantage of being given court diversion is that the sentence is stated as a good behaviour bond, with a recognisance (sum of money) that could be forfeited, to be of good behaviour for a period of time and included in that is the requirement to attend a court diversion session as agreed with the CDO. A good behaviour bond doesn’t attract a conviction being recorded.

Queensland Integrated Court Referral (QICR) • Queensland Integrated Court Referral (QICR) is

a bail-based referral service that assists people who have been charged with a criminal offence to access services that can help them with issues they may be facing such as drug and/or alcohol dependency, mental illness, intellectual disability, cognitive impairment, and homelessness or risk of homelessness.

The purpose of the program is to: • provide short term assistance to defendants appearing

on charges who have a health and/or social problem by referring them to treatment or community support services

• reduce long term re-offending by addressing the causes of offending behaviour.

If a person breaches a QICR bail condition they may be charged with a further criminal offence of breach of bail. Under the new scheme CourtLink, if a person breaches the bail condition it will not be a breach of bail under s29 of the Bail Act.

To be eligible, a defendant must be on bail or be eligible for bail and have one or more of the following issues: • drug and alcohol use • mental health problems • impaired decision-making capacity • homelessness and social issues • a defendant does not need to be pleading guilty

to all charges to be eligible.

CourtLink From 27 November 2017, QICR will be replaced by a new bail-based pilot program called CourtLink in Brisbane. The difference will be: • no eligibility criteria (ie not restricted to AOD, mental health,

homelessness, cognitive impairment) • new case management staff employed with CourtLink who will

actively work with participants (ie not just referral to community services)

• if community services are involved, they will no longer have to do the reports

• Courtlink is also planned for commence in Cairns Magistrates court as from June 2018.

Drug and Alcohol Assessment Referral (DAAR) • A Drug and Alcohol Assessment Referral (DAAR)

course is available to defendants who identify substance use as a contributing factor in their offending behaviour but who may not be drug and/or alcohol dependent

• The course is imposed as a condition of bail or a recognisance order.

Note: It can only be imposed as a bail condition if the defendant is 18 years or over. As part of a recognisance, a defendant can be 17 years or over.

• There are no charges that exclude a defendant from participating in a course. However, if a person has completed two DAAR courses within five years, they are ineligible.

• A DAAR course may be offered over the phone rather than in person, such as when a defendant is charged with, or has a history of, sexual or violent offences or if there are no service providers in the local area.

If completing a DAAR course is a condition of bail, it’s not a breach of the bail undertaking if a person doesn’t complete it.

Legal rights Things everyone should know…… • you have the right to remain silent, whether you have been

stopped in the street, have agreed to go to the police station or are under arrest

• however, the police do have the power to ask you basic questions and in some situations you may be breaking the law if you refuse to answer.

This is: • your name and address • for drug matters - your place and date of birth • if the police suspect you've broken traffic laws, or if

you’ve seen an accident they have wider powers to get information.

Police interviews Having a police interview • You don’t have to agree to do an interview. • If you’re a suspect, it’s usually best not to until you’ve had

legal advice. • The police will usually charge you anyway, whether you give

an interview or not! When agreeing to a police interview you should be aware of the following: • If you say something, it will be recorded, and you can’t take it

back and it can be used against you in court (unless you can get the interview thrown out, which is hard to do)

• You may feel nervous at the interview, even if you’ve done nothing wrong and you may misunderstand the question or answer incorrectly

• You might begin the interview expecting to be questioned on a specific charge, but what you say can lead to a different, more serious charge or more charges

• You can take a private lawyer with you, but they can’t interfere in the interview

• Even if it doesn't hurt to go and be interviewed, it doesn't usually help you either

• It's rare that the police will drop charges against you based on what you say in an interview

• The police don’t have to tell you the truth about what they might know about the alleged incident.

Searches A police officer can: • stop and search you if they reasonably suspect

you may have a dangerous drug in your possession (including a strip search as long as it is done by an officer of the same sex)

• stop and search your vehicle if they reasonably suspect there’s a dangerous drug in the vehicle

• in some circumstances, police can search your house (or business) if they reasonably suspect there is evidence that may otherwise be hidden or destroyed

• use drug detection dogs in certain places.

• You don’t have to consent to a police search. If the police ask you if you consent to a search, you can say ‘no’. As mentioned already, in some situations, the police may have the power to search you, your home or your vehicle without your consent.

• It’s usually best to say ‘no’ to a search, but you should obey the directions of the police otherwise you may be charged with obstructing police. If you say ‘no’, then the police will have to decide whether they have the power to search without a warrant or whether they will have to go and get a warrant.

Searching private property The police can enter and search your home without a warrant to: • prevent domestic violence • investigate traffic offences (eg to take a breath test for

alcohol) • catch someone who has escaped from prison or from being

arrested • search for evidence if they reasonably suspect there is

evidence that may otherwise be hidden or destroyed • arrest someone • reach a crime scene • a police officer can enter your home without a warrant to shut

down or prevent an out-of-control event or to identify a person who is committing an offence in relation to an out-of-control event.

Searching vehicles A police officer can stop, detain and search a vehicle and its occupants if they reasonably suspect that there is something in the vehicle, including (but not limited to): • a weapon • a dangerous drug • stolen property • tools to break into houses or cars • something that you plan to use to hurt yourself or

somebody else • evidence that someone has committed a serious

offence (and this evidence may be hidden or destroyed).

Searching a person A police officer can stop and search you if they reasonably suspect that you may have: • a weapon • a dangerous drug • stolen property • tools to break into houses or cars • something that you plan to use to hurt yourself or somebody

else • evidence that someone has committed an indictable offence

(and this evidence may be hidden or destroyed). • A police officer can also stop and search you if they

reasonably suspect you are a participant in a criminal organisation.

Young people and the law

• For any juvenile (10- under 17) charged with offences (any offences) they can access Legal Aid funding and be represented. There is no means test.

• The same diversionary options are available to

children such as Police Diversion and Court Diversion, and for juveniles the law requires that Police MUST consider a caution or other diversionary options before charging a juvenile.

Juveniles can receive more than one caution. If a juvenile is being questioned by police about a serious offence, they must have a support person with them. The support person should be: • a parent or guardian • a lawyer • a person who is acting for you who works in an agency that

deals with the law • a relative or friend, or • a justice of the peace. There are currently proposals to amend the age of a youth offender to include 17 year olds – to divert 17 year olds from the adult criminal justice system. This will likely occur in February 2018.

Providing support letters for court Guide to the contents of a good reference:

• your full name • your occupation • a brief paragraph setting out your own background • how you have come to know the client, and for how long • the fact that you know the client is to appear in court in relation to

criminal charges • any comments you can make about the clients honesty, integrity etc

and the circumstances under which you have dealt with the client which allow you to make

• comments about their character • details of any other positive attributes you feel the client has in

addition to honesty and integrity • details (if you are aware of these) of future plans the client has ie work, family, community service.

• The reference should be addressed to the Presiding Judge (if it is District Court, Supreme Court) or Magistrate Court (if it is Magistrates Court).

• The reference should not normally extend beyond one page

• The reference should be written in your own words • The reference may be handwritten, but a typed

reference is preferable, if possible • The reference should be signed by you, and dated • You should not, in your reference, canvass what

the appropriate penalty should be.

Our office locations • Brisbane (Head Office)

• Bundaberg

• Caboolture

• Cairns

• Inala

• Ipswich

• Mackay

• Maroochydore

• Mount Isa

• Rockhampton

• Southport

• Toowoomba

• Townsville

• Woodridge

Contact us Legal information and referrals

1300 65 11 88 Indigenous information line

1300 65 01 43 Questions about an application you have already submitted

07 3238 3900

@LegalAidQld

Any questions?

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Join us next week for

Substance use disorders among Aboriginal and Torres Strait Islander People in custody: a public health opportunity

Presented by Dr Ed Heffernan.