I thank the Committee for the opportunity to speak about this important issue on behalf of the Victorian Aboriginal Legal Service.  Before I begin, I’ll start by acknowledging the Wurundjeri Woiwurrung people as the Traditional Owners of the land that I am on today and pay my respects to their Elders, past and present. We are on sovereign, unceded land. I also pay my respects to any Aboriginal people present at the hearing today. 

My name is Ali Besiroglu and I’m the Director of Legal Services at the Victorian Aboriginal Legal Service. I was a senior lawyer at VALS for 7 years practising primarily in criminal law. I then moved to working in civil litigation at a private law firm, taking civil actions against the state of Victoria for police misconduct. I have also acted for Aboriginal families in coronial inquests for loved ones who passed away in police and prison custody. 

Aboriginal communities have been subjected to discriminatory and violent policing since colonisation, and this remains a persistent issue today. Aboriginal people are disproportionately stopped, searched, arrested, charged, and imprisoned. Data released by the Centre for Racial Profiling last year showed that Aboriginal and Torres Strait Islander people are 11 times more likely to be searched by Victoria Police than non-Indigenous people.  

One of the most common offences leading to this over-policing is personal possession of cannabis – the Sentencing Advisory Council in 2016-2017 found that 33% of minor drug offences were related to cannabis. Aboriginal people are far more likely to be charged with drug offences arising from personal use and possession than non-Indigenous people. This is despite the rates of use being similar across the board. 

Crime Statistic Agency data shows that in 2021 to 2022, Aboriginal people were eight-times more likely to be arrested for possession of Cannabis than non-Indigenous people. In contrast, non-Indigenous people arrested for the possession of cannabis were 50% more likely to receive a caution in Victoria.   

These data points show what Aboriginal communities continue to know – that racial profiling and systemic bias continues, and that manifests in the criminalisation of personal cannabis use. 

The Chief Commissioner of Police apologised for this sort of racialised policing at the Yoorrook Justice Commission last year, but we are still waiting for words to translate into action. In Victoria, the disparity in drug-related charges has worsened over the past decade, not improved.  

Victoria’s current carceral approach to personal cannabis use increases Aboriginal people’s contact with the criminal legal system, and this entrenches cycles of disadvantage and reinforces all the harms of discriminatory policing. It puts Aboriginal people who need support in handcuffs, police cells and in prison, re-traumatising them, denying them proper healthcare, and increasing the risk of more deaths in custody. 

Currently, the maximum sentence for possession of a small quantity of cannabis is 5 penalty units, as legislated by parliament. However, when Aboriginal people are provided these fines in courts, their experience is much worse. The inability of being able to pay court fines results in imprisonment and/or the risk of being imprisoned, despite parliament’s intention of providing the maximum sentence of a fine.

We then ask what are the courts doing to address this?

One would think that the Drug Court could be open to a cannabis user. But this is not the case. Entry into the Drug Court requires the accused facing a term of imprisonment, which isn’t available to possession of small quantities of cannabis.

What about cautions for youth or diversion for adults? These options require police discretion to be exercised, and what we know is that when there is police discretion, there is discrimination. As we’ve already stated, Aboriginal kids are 50% more likely to not receive a caution. As for adults, after a review into diversion was conducted in 2015, Magistrates’ Court Practice Direction 10 of 2016 stated the following:

Although persons who identify as Koori make up 3 per cent of the Victorian population and 8 per cent of the prison population, only 0.76 per cent of matters referred to the Criminal Justice Diversion Program comprise accused who identify as Koori.       

These statistics alarmingly show that while Aboriginal people are over-represented in the criminal justice system, they are also under-represented in any systems designed to keep people away from our courts. This is what we mean by the carceral response to cannabis use and possession, disproportionately targeting First Nations communities.    

We saw first-hand the terrible impacts of government criminalising health issues with what happened to Aunty Tanya Day, who passed away in 2017, leading to public intoxication laws being decriminalised. The decriminalisation of public intoxication was first recommended by the Royal Commission into Aboriginal Deaths in Custody over 30 years ago. But the Victorian government did not act on this long overdue reform until Aunty Tanya passed away. The Victorian government accepted public intoxication being a public health issues, and it is our belief that cannabis use and possession of small quantities should be dealt through a public health response lens and not a criminal one.   

At its core, drug use is a public health issue and not a criminal legal issue.  

Yet the Victorian Government’s current drug policy subjects people dealing with addiction to intrusive policing and excessive punishment, instead of giving them the support they need.

We have to ask ourselves what our criminal justice system is doing? We say, nothing – nothing other than imposing fines (with the looming threat of imprisonment for unpaid fines), which do not address the underlying causes of cannabis use.

Criminalising cannabis use punishes vulnerable people instead of addressing the underlying trauma and providing support. Decriminalisation offers a pathway to prioritise community health, reduce criminal legal system interactions, and improve social and health outcomes for Aboriginal people and their families. 

VALS believes that it is essential that past convictions for cannabis offences are expunged to prevent ongoing harm. The effects of criminal records are a profoundly harmful part of criminalisation. Expunging criminal records for decriminalised cannabis offences is essential to ensuring past injustices do not continue to harm Aboriginal people. 

VALS recommends amending the Bill to automatically expunge decriminalised offences from people’s criminal history, including for children.  Without automatic expungement, individuals remain locked out of employment, housing, and other opportunities, perpetuating the very cycles of disadvantage that drug law reforms aim to address.

It is acknowledged that the spent convictions scheme could be used as a justification against expungement. However, there are many exceptions to non-disclosure, including working in government roles. Spent convictions also do not erase entries in a person’s criminal record for the purpose of future sentencing.

VALS wants to see decriminalised cannabis charges removed from criminal records, much like the removal of the hurtful words, ‘ward of the state’ in criminal records, and the great work of Uncle Noel Tovey, a remarkable man who worked tirelessly to have parliament remove the entry of the ‘abominable act of buggery’ from his criminal record.    

VALS does not support the approach towards criminalising children who use cannabis, and instead recommends an approach that decriminalises cannabis for all people, including children and young people under 18 years.  

We want to be clear – this is not the same as authorising the use of cannabis for young people, which is what this Bill does for adult use only.  

The statistics around over policing making it clear that if you do not decriminalise cannabis for young people, it is undoubtedly going to be Aboriginal children and young people who bear the harmful effects of criminalisation, while being locked out of any of the benefits of decriminalisation. Especially after hearing Yoorook’s findings and recommendations, this would be an incredibly unjust outcome.  

It is also important for these reforms to be accompanied by wider access to health and other support services for all people, but children and young people especially.  

Time and time again, we see the government correcting policy and the law as a result of recommendations by the Coroners Court – this happened for Aunty Tanya Day and also in Veronica Nelson’s inquest. But what we want to highlight is that every time a coroner makes these recommendations for reform, which is accepted by parliament, it means that we have failed as a society and you have failed as a government – because this is an acknowledgement that a life had to be sacrificed for reform to occur.

The carceral regulation of cannabis use has been discriminatory in its application, and has done nothing to address underlying causes of cannabis use. What the government has is an opportunity to act now to correct this wrong before the Coroners Court comes knocking and another life is unnecessarily sacrificed in custody.

We thank the Committee for the opportunity to speak on this important issue.