Drug Diversion SA: Police Referral for Simple Possession Offences
Police drug diversion in South Australia
For most possession charges involving drugs other than cannabis, the law requires police to refer the person to an assessment service instead of prosecuting. Talon Legal advises people who have been referred, people told they are not eligible, and people charged after a referral has ended. Book a same-day free 30-minute consultation or call (08) 7094 2021 now.
Drug diversion key facts
| Issue | Position in South Australia |
|---|---|
| Governing law | Part 5 Division 6 (sections 34 to 40B) of the Controlled Substances Act 1984 (SA), version in force from 1 July 2026. |
| Which offences | Simple possession offences: possessing or using a controlled drug other than cannabis, or possessing equipment for its use, under section 33L(1), other than an offence relating to a prescribed controlled drug (section 4). |
| Referral | A police officer must refer the person to a nominated assessment service. The referral stays any proceedings (section 36). |
| Who is excluded | A child; a person also charged with a serious drug offence arising out of the same circumstances; a person referred two or more times in the four years before the alleged offence (section 34(1)). |
| Assessment | The service assesses the person and must or may end the referral for the reasons set out in section 37. |
| Undertaking | Treatment, education or another programme for up to 6 months. The complaint is withdrawn once the undertaking is entered into (section 38). |
| Result | When the undertaking expires, the person cannot be prosecuted for that offence (section 40(4)). |
| If the referral ends | A prosecution can proceed only after a referral that has been terminated, and what was said in the assessment cannot be used in evidence (section 40(1) and (3)). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Charged with a simple possession offence? How drug diversion works
Police drug diversion is set out in Part 5 Division 6 of the Controlled Substances Act 1984 (SA). This guide explains drug diversion SA law: which offences qualify, who is excluded, the assessment and undertaking, and what happens if a referral ends. It states the law current to 5 November 2026.
The Drug Offences SA guide explains how the drug charges fit together, and the drug possession guide explains what possession means in law. Cannabis possession is not part of this scheme and is covered in the cannabis possession guide.
Free Consultation. Advice before the assessment matters most when possession is disputed. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- What is police drug diversion?
- Which offences qualify?
- Who is excluded?
- What happens at the assessment?
- What does the undertaking involve?
- Is there a court case or a conviction?
- What if the referral is terminated?
- What if police charge without a referral?
- Does diversion apply to cannabis or to children?
- How is police diversion different from court diversion?
- What has changed?
- How similar cases tend to play out
- How we help with drug diversion
- Drug diversion case law
- Frequently asked questions
What is police drug diversion?
Police drug diversion is a statutory scheme that sends a person alleged to have committed a simple possession offence to a health-based assessment instead of to court. It is contained in sections 34 to 40B of the Act.
The core rule is in section 36. A police officer must refer a person alleged to have committed a simple possession offence to a nominated assessment service, and must give the person a notice setting out the date, place and time of the assessment. The referral stays any proceedings for the offence.
Referral is mandatory. The section says “must”, and a prosecution for a simple possession offence cannot proceed unless the person was referred and the referral was terminated (section 40(1)).
Which offences qualify?
Only simple possession offences. A simple possession offence is an offence against section 33L(1), other than one relating to a prescribed controlled drug (section 4). Section 33L(1) covers:
- possessing a controlled drug, other than cannabis products or an interim controlled drug;
- smoking, consuming or self-administering such a drug; and
- possessing equipment for using or preparing it.
The maximum penalty for a section 33L(1) offence, if it is prosecuted, is $2,000 or 2 years, or both.
Possession for sale, supply, trafficking and manufacture are not simple possession offences and are not referred. The quantity also matters: possession of a trafficable quantity is presumed to be for sale (section 32(5)), and is likely to be charged as drug trafficking. For methylamphetamine, cocaine, heroin and MDMA the trafficable quantity is 2 grams.
Who is excluded?
Section 34(1) says the Division does not apply to three groups:
| Exclusion | What it means |
|---|---|
| A child | The Division does not apply to a child (section 34(1)(a)). |
| A serious drug offence from the same circumstances | A person also charged with a serious drug offence arising out of the same circumstances (section 34(1)(b)). For this purpose a serious drug offence is an offence against Division 2 (other than Subdivision 4), Division 3, Division 4 (other than sections 33I(2), 33K and 33L) or Division 4A of Part 5 (section 34(2)). |
| Two or more earlier referrals | A person referred two or more times in the four years before the alleged offence, each referral for a separate alleged simple possession offence (section 34(1)(c)). |
The four-year count looks back from the date of the alleged offence, not from the date of the charge.
The serious drug offence exclusion turns on the person also being charged with that offence. Where a serious charge is later withdrawn or reduced to simple possession, whether a referral is then required needs specific advice.
What happens at the assessment?
The assessment service must assess the person as quickly as practicable (section 37). It may require the person to consent to the release of their treatment records and criminal record, to attend further interviews, and to undergo an examination.
The service must terminate the referral if (section 37):
- the person fails to attend without a reasonable excuse;
- it considers that an undertaking would not be appropriate;
- the person does not admit the allegation; or
- the person does not want the service to deal with the matter.
It may terminate the referral if the person does not cooperate, refuses the consents or an examination, or refuses to enter into, or breaches, an undertaking. The service must give reasons for a termination, and the Commissioner of Police is notified.
Admitting the allegation. The service can deal with a person only if they admit the allegation. A person who says the drug was not theirs, or who has a defence, should get advice before the assessment. Not admitting ends the referral, and the matter can then go to court, where possession must be proved in the ordinary way. What was said in the assessment cannot be used in evidence (section 40(3)).
What does the undertaking involve?
If the service considers it appropriate, the person can enter into a written undertaking (section 38). An undertaking may require the person to:
- undergo treatment, which can only be with a treatment service;
- take part in an educative, preventive or rehabilitative programme; or
- comply with other matters set out in the undertaking.
When the person enters into the undertaking, the complaint for the offence must be withdrawn, and any custody or bail for that offence ends (section 38). An undertaking can run for up to 6 months, and a variation cannot take it beyond 6 months in total.
Breaching an undertaking is one of the grounds on which the service may terminate the referral (section 37).
Is there a court case or a conviction?
Not if the undertaking runs its course. The complaint is withdrawn when the undertaking is entered into (section 38), and once the undertaking expires the person cannot be prosecuted for that offence (section 40(4)). No court makes a finding of guilt.
The Act also protects the person while the referral is running:
| Protection | Section |
|---|---|
| Taking part is not an admission of guilt and is not evidence of guilt | Section 40(2) |
| What was said or done in the assessment or under the undertaking, and the reasons for termination, are not admissible in evidence | Section 40(3) |
| Information obtained must be kept confidential; disclosure carries a maximum penalty of $10,000 | Section 40A |
What if the referral is terminated?
A prosecution can then proceed (section 40(1)). Bui v Police [2012] SASC 72 shows the sequence. Police referred the appellant to an assessment service, he did not attend his appointments, and the referral was terminated. Police then had the substance analysed and charged him under section 33L(1) ([5]).
Missed appointments. Mandatory termination for failing to attend applies only where there was no reasonable excuse (section 37). Evidence of the reason for missing an appointment, such as a hospital admission, should be gathered straight away.
After termination. The charge is then dealt with like any possession charge, with a maximum of $2,000 or 2 years (section 33L(1)). In Bui, the possession offences were in the lower range, but a 14-day prison term was open given the appellant’s drug record ([20], [30] to [33]).
What if police charge without a referral?
For a simple possession offence, a prosecution cannot proceed unless the person was referred and the referral was terminated (section 40(1)). If police lay a qualifying possession charge without a referral, and no exclusion in section 34 applies, the prosecution cannot proceed. The point should be raised at the first court date.
Police may say a person is excluded because they were referred twice in the previous four years, or because a more serious drug charge arises from the same circumstances. Both can be checked.
Does diversion apply to cannabis or to children?
Cannabis. No. Possessing cannabis, cannabis resin or cannabis oil is an offence under section 33L(2), with a maximum fine of $2,000. It is not a simple possession offence, so it is not referred. The simple cannabis possession page explains how those offences are dealt with.
Children. The Division does not apply to a child (section 34(1)(a)). Children’s drug matters are dealt with through the youth justice system, which this guide does not cover.
How is police diversion different from court diversion?
Police diversion happens before any court case, under the Controlled Substances Act. Court-based programmes are different: they operate within court proceedings, after a charge has been laid.
In R v Becker [2005] SASC 186, the Court of Criminal Appeal described the Drug Court program as aimed at diverting less serious offenders into treatment, and said it did not accept people charged with major indictable offences ([44], [47]). Ineligibility for it was therefore irrelevant at sentence ([48]).
Which court programmes are available today, and to whom, depends on the court and the programme.
What has changed?
- 21 November 2021. Section 35 was deleted and section 38(2) amended.
- 1 April 2019. Section 34(1) was amended by the Statutes Amendment (Drug Offences) Act 2018.
- 29 February 2016. Section 34, which sets out who is excluded, was substituted.
The scheme has also changed shape over time. In 2002, Lander J described it as applying to drugs of dependence but not to cannabis or to other prohibited substances (Scerri v Commissioner for Consumer Affairs [2002] SASC 439 at [46] to [57]). The current definition draws no such distinction. It covers section 33L(1) offences involving any controlled drug other than cannabis products and interim controlled drugs, unless the offence relates to a prescribed controlled drug.
How similar cases tend to play out
Three illustrations of how Division 6 applies on ordinary facts. They are not predictions. The result depends on the person’s history, the evidence and the assessment service.
Lower range. A 19-year-old is found with two MDMA capsules at a music festival. She has never been referred before, so police must refer her (section 36). She attends, admits the possession and enters into a three-month education undertaking. The complaint is withdrawn, and when the undertaking expires she cannot be prosecuted for that offence (sections 38 and 40(4)).
Middle range. A man is referred but misses his assessment because he has been admitted to hospital. The service terminates the referral and police charge him. Mandatory termination for non-attendance applies only where there was no reasonable excuse (section 37). Whether the termination can be challenged depends on the facts, and the hospital records are the first thing to obtain.
Upper range. A woman found with a small amount of methylamphetamine has been referred twice in the four years before the offence. The Division does not apply to her (section 34(1)(c)), and police charge her under section 33L(1). Given her history, imprisonment is available, as Bui shows, but evidence of treatment can make a real difference at sentence.
How we help with drug diversion
Most people referred for diversion do not need a lawyer at the assessment itself. Advice matters most at three points: before deciding whether to admit the allegation, when told diversion is not available, and when a referral ends and a charge follows.
| Stage | What happens | What we do |
|---|---|---|
| Police contact | Police allege a simple possession offence. | Check that it is a simple possession offence and whether any exclusion in section 34 really applies. |
| Referral | Police must refer the person to an assessment service. | Advise on what the assessment involves and on admitting the allegation, especially if possession is disputed. |
| Assessment and undertaking | The service assesses the person and may offer an undertaking of up to 6 months. | Advise on the consents sought and the undertaking's terms. |
| Termination | The referral may end for the reasons in section 37. | Gather evidence of any reasonable excuse and advise on the charge that follows. |
| Court | A prosecution can proceed only after a terminated referral (section 40(1)). | Hold the prosecution to section 40(1), contest possession, or present treatment at sentence. |
We cannot promise a particular result, and no lawyer can. We can make sure the scheme is applied as the Act requires.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Drug diversion case law
None of the decisions below construed the current version of Division 6, which dates from 2016. They show how the scheme has operated in practice, how its earlier form differed, and how possession is proved when a referral ends and the case goes to court.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| Bui v Police [2012] SASC 72 | Supreme Court | Referral, non-attendance, termination and prosecution; imprisonment open with a drug record | [5], [20], [30] to [33] |
| Scerri v Commissioner for Consumer Affairs [2002] SASC 439 | Full Court | The diversion scheme as it stood in 2002 | [46] to [57] |
| R v Becker [2005] SASC 186 | Court of Criminal Appeal | Court diversion is separate from police diversion | [44], [47] to [48] |
| Police v Measey [2017] SASC 194 | Supreme Court | Possession needs knowledge and an intention to control | [46], [50] to [51], [55] |
| McLeod v Police [2019] SASC 69 | Supreme Court | Acquiescence in another's storing drugs is not possession | [34] to [35] |
Case notes
Bui v Police [2012] SASC 72
The judgment records the scheme at work under the version of section 34 then in force. Police referred the appellant to an assessment service, he did not attend his appointments, the referral was terminated, and police then had the substance analysed and charged him under section 33L(1) ([5]). Doyle CJ found a 14-day prison term for the possession offences open and not manifestly excessive, given his drug record ([20], [30] to [33]). The appeal was allowed only in part, on other offences ([38] to [39]).
Scerri v Commissioner for Consumer Affairs [2002] SASC 439
The appeal concerned the validity of a regulation. In his reasons, Lander J described the diversion procedure as it stood in 2002: simple possession offences included drugs of dependence but excluded other prohibited substances and cannabis, and were dealt with by police referral, assessment and undertakings, with no prosecution except through that procedure ([46] to [57]). The appeal was dismissed (Doyle CJ at [16]; Lander J at [105] to [106]; Bleby J at [112]).
R v Becker [2005] SASC 186
In a sentence appeal for possessing GHB for sale, the Court of Criminal Appeal said the Drug Court program does not accept people charged with major indictable offences and is aimed at diverting less serious offenders into treatment ([44], [47]). Ineligibility for it was irrelevant to sentence ([48]). The appeal was dismissed ([69]).
Police v Measey [2017] SASC 194
Peek J said possession requires a conscious mental recognition of the drug’s presence and an intention to control it to the exclusion of others, and that being in a position to control it is not enough ([46], [50] to [51]). A passenger’s possession of cannabis in a shared car was not proved, and the finding of guilt was quashed ([55]).
McLeod v Police [2019] SASC 69
Stanley J said mere acquiescence in someone else storing drugs in one’s house is insufficient to prove possession; there must be an intention to control as well as knowledge ([34] to [35]). On the facts, the appellant’s attempt to hide the drugs proved control, and the appeal was dismissed ([37] to [42], [60]).
Frequently asked questions
What is drug diversion in SA?
It is the scheme under Part 5 Division 6 of the Controlled Substances Act 1984 that requires police to refer a person alleged to have committed a simple possession offence to an assessment service instead of prosecuting (section 36).
Is drug diversion automatic?
For a qualifying offence, referral is mandatory: a police officer must refer the person (section 36). It does not apply to children, to people also charged with a serious drug offence from the same circumstances, or to people referred two or more times in the previous four years (section 34(1)).
How many times can you get drug diversion?
The Division does not apply to a person referred two or more times in the four years before the alleged offence (section 34(1)(c)). So a third alleged simple possession offence within four years of two earlier referrals is not referred.
Does drug diversion apply to cannabis?
No. Cannabis possession is an offence under section 33L(2), which is not a simple possession offence, so it is not referred under this scheme.
What happens at a drug diversion assessment?
The assessment service assesses the person and may ask for consent to release treatment and criminal records, further interviews and an examination (section 37). If appropriate, the person enters into an undertaking to undergo treatment or a programme for up to 6 months (section 38).
Do I have to admit the offence to get diversion?
Yes. The service must terminate the referral if the person does not admit the allegation (section 37). A person who disputes possession should get advice first, because the matter can then go to court.
What happens if I miss my drug diversion appointment?
The service must terminate the referral if the person fails to attend without a reasonable excuse (section 37), and police can then prosecute (section 40(1)). Evidence of a reasonable excuse should be gathered straight away.
Will I get a criminal record if I complete drug diversion?
The complaint is withdrawn when the undertaking is entered into, and once the undertaking expires the person cannot be prosecuted for that offence (sections 38 and 40(4)). No court makes a finding of guilt.
Can what I say at the assessment be used against me?
No. Taking part is not an admission or evidence of guilt, and what is said or done in the assessment or under the undertaking is not admissible in evidence (section 40(2) and (3)).
Can police prosecute without referring me first?
Not for a simple possession offence. A prosecution cannot proceed unless the person was referred and the referral was terminated (section 40(1)), unless one of the exclusions in section 34 applies.
Can children get police drug diversion?
No. The Division does not apply to a child (section 34(1)(a)). Children’s drug matters are dealt with through the youth justice system.
Do I need a lawyer for drug diversion?
Not usually for the assessment itself. Advice is worth getting before admitting an allegation you dispute, if you are told you are not eligible, or if a referral ends and you are charged. Call (08) 7094 2021.
South Australian courts we attend for drug possession charges
When a referral ends and a charge follows, we defend drug possession charges in the Adelaide Magistrates Court and the suburban and regional Magistrates Courts listed below.
Courts we attend
Book a same-day free 30-minute consultation or call (08) 7094 2021.