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Know Your Rights This Music Festival Season

By Paul Gregoire and Ugur Nedim

The tragic drug-related deaths at the Defqon.1 music festival in southwestern Sydney on 15 September have gained a lot of media attention. And rightly so. But what hasn’t gathered as much attention is the saturation policing at the event.

NSW police were out in force. There were 180 officers at the festival, some of whom were accompanied by drug detection dogs. Police searched 355 festivalgoers and only 69 of these searches resulted in any illicit substances being found. So, that’s a success rate of just 19 percent.

What this means is if you plan to attend an event this season, and won’t be carrying drugs, it’s still important to know your rights because a sniffer dog may well sit next you regardless, which could result in a bodily search or even a strip search.

You have the right to remain silent

During a search, or subsequent arrest, you’re not required to answer any specific questions police ask you, except for providing your name and address. Failure to provide these details – or providing false details – can result in a fine.

In the case where drugs are found, it’s best to remain silent. This will prevent you from saying anything that might be detrimental in the long run. And whatever you do, don’t say you intended to give away or share the drugs, as this can result in a more serious charge of drug supply, rather than drug possession.

Police search powers

The police powers to stop and search a person without a warrant are contained in the Law Enforcement (Powers and Responsibility) Act (LEPRA) 2002. This legislation requires that officers must have a reasonable suspicion to carry out such a search.

Section 21 of the LEPRA provides that an officer may stop, search and detain a person without a warrant if they suspect on reasonable grounds that the individual is carrying illegal drugs, a dangerous weapon, stolen property, or anything used, or intended to be used, to commit a crime.

Reasonable suspicion

The leading authority on what constitutes reasonable suspicion is the 2001 NSW Court of Criminal Appeal case R v Rondo. It sets out that “a reasonable suspicion involves less than a reasonable belief, but more than a possibility.”

So, if an officer pulls you up for a search at a music festival they must have some “factual basis” as to why they’re doing so. And it’s best to ask the officer for the reason why they’re conducting the search.

Reasonable suspicion cannot be that an officer simply thinks you look dodgy, or they don’t like the way you’re dressed, or even if you’re in an area that’s well known for drug use or other criminal activity.

And never say to an officer of the law that you consent to a search. If you do give consent, police will no longer need to demonstrate that they had a reasonable suspicion to search you later on.

Indeed, it’s best to comply with an officer’s instructions, but also to state that you don’t give consent. This could lead to a charge being dropped or thrown out of court at a later date if it’s shown that an officer had no grounds to carry out the search.

Sniffer dogs

Section 148 of the LEPRA provides police with the power to use drug detection dogs in public places without a warrant. This includes using dogs on people at, or entering or leaving, licensed venues and events, such as music festivals, concerts, parades and sporting events.

There’s dispute over whether an indication by a drug dog actually constitutes reasonable suspicion. This is due to the fact that sniffer dogs are highly unreliable and get it wrong anywhere from two-thirds to three-quarters of the time.

However, officers do indeed search people following a positive indication made by a dog. And over recent years, these dogs have become a permanent fixture at music festivals, so be prepared that you could be searched regardless of what you’re up to.

During a search

If an officer does decide to search you, it’s best to remain calm and comply. Trying to resist can result in a charge of resisting arrest. And watch what you say, as swearing can result in a fine or a charge of using offensive language.

Section 202 of the LEPRA requires that in the event of a search, an officer must show you their badge if they aren’t wearing a uniform. They’re also required to tell you their name. And they must provide you with the reasons as to why they’re conducting the search.

Police can carry out three types of searches. A frisk search, where they run their hands down the outside of your clothing. An ordinary search, where they require you to remove items of clothing – such as a coat or shoes – and examine them. And then officers can also carry out a strip search.

Section 21A of the LEPRA also provides police with the ancillary powers to order a person to open their mouth for the purposes of a search, and to shake their hair if they suspect something is being concealed within it. Failure to comply with this request can result in a fine of $550.

It’s perfectly legal to film police in a public space, and this includes music festivals. So, if possible, have a friend stand back and film the search. The police have no powers to prevent this from happening, as long as the individual is not hindering the search.

The invasive strip search

Section 31 of the LEPRA provides that police can carry out a strip search in a place – such as a music festival – if the officer “suspects on reasonable grounds” it “is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.”

If you’re at a music festival a strip search has to be carried out in a private enclosed area, like a tent. And the search must be conducted by a member of the same sex. At no time should your body cavities – including your mouth – be searched, and you should not be touched in any way.

No one should be present other than those needed for the purposes of the search, and nor should any item of clothing be unnecessarily removed. And under no circumstances are strip searches to be carried out on children under the age of 10.

Found in possession

If drugs are located on your person, remember that apart from providing your identity, you have no obligation to speak or answer any questions. And certainly, don’t imply that the drugs were in any way for anyone else.

Be aware that if you are found with a “traffickable amount” of a substance on you, section 29 of the Drug Misuse and Trafficking Act 1985 provides that you can be charged with supply, even if there’s no evidence that suggests you’ve been supplying others. This is known as deemed supply.

As little as 0.75 grams of MDMA – or three or four pills – can be deemed supply. For cocaine, methamphetamine or heroin, three grams or more can land you with a charge of supply. And for cannabis, it’s a lot more – 300 grams.

In the case of arrest

If an officer does arrest you, it’s important to stay calm and don’t resist, as resisting could led to an escalation of the situation and more charges being laid. The best thing to do after being issued with a court attendance notice is to get in touch with an experience criminal lawyer.

A good lawyer can guide you through the process. They may be able to have the charges dropped or thrown out of court, and in the case of a charge of deemed supply, they may be able to have it downgraded to possession.

So, now that you’re aware of your rights, remember to comply with police instructions, but don’t give your consent to a search. And have a great festival season.

The New South Wales Drug Busts that ‘Never Happened’

The NSW Bureau of Crime Statistics and Research (BOCSAR) has faced up to an embarrassing error, admitting that it ‘double-counted’ many drug busts over the past seven years.

It says statistics regarding arrests for cocaine and ecstacy detection have been inflated by more than 30%, while last year more than 13,000 drug events never actually occurred.

The error arose because BOCSAR was adding police statistics on searches to those on arrest – which is a fundamental mistake as both incidents can arise from a single event.

The mistake has meant that statistics about drug detections have been significant inflated, bolstering the argument that the war against drugs is even less successful than previously thought.

Does not affect trends

BOCSAR collects data which used to identify crime trends such as location, frequency, penalties and offender details.

While BOCSAR Chief Don Weatherburn admits the fault lies within his department, he says the actual figures are less important than the patterns they show.

“It is a large number, but the crucial issue is the trend with drug offences. I’m not saying this is not a bad mistake, but it doesn’t seem to have affected the trend from March 2012 to March 2018.”

Funding and policy decisions

BOCSAR data is one of the sources of information used to assess the level of funding for law enforcement in the war against drugs. More arrests and raids can lead to more funding, while a lower rate of success can make it more difficult to justify greater government expenditure.

Between 2010 and 2011, BOCSAR released crime numbers suggesting a larger numbers of detections than were the case.

Funding for drug detection dog operations, border force operations and enforcement generally has steadily increased since that time, partly based on the false premise that police are detecting high numbers of drug crimes.

And funding keeps rising. The NSW Government pledged a record $3.9 billion to the New South Wales Police Force in its 2018-19 budget, with a commitment to continuing sniffer dog operations and doubling roadside drug testing.

And while governments continue to take a hard line stance against drugs and spend big on policing and enforcement, those working in rehabilitation say there’s a major funding shortfall for much needed services for those suffering drug addiction. Many facilities are working with scant resources, particularly in rural areas, and yet there is mounting research to suggest that programmes are highly successful in helping users get their lives on track, and reducing re-offending.

Greens MP David Shoebridge has been a staunch and long-time campaigner against the use of sniffer dogs at events including music festivals. He says the double counting has raised questions about policy decisions, and that its ‘remarkable’ there isn’t a better cross-checking system within the NSW Police Force to pick up on the over-reporting.

“Year on year police have demanded additional resources to meet perceived crime levels with much of this perception based on data produced by BOCSAR. The war on drugs has never been winnable, and what we see from these recent numbers is that the NSW Police is having an even smaller impact on drug supply than many thought,” he remarked.

Better auditing

While BOCSAR has admitted its error, the fiasco points to the need for better auditing and analysis to ensure statistics are accurate and that governments and other bodies are properly advised, so that funding can be allocated and policies developed accordingly.

In the meantime, it seems police may need to work a little harder to justify funding for the war against drugs.

Australia’s First Pill Testing Trial Hailed a Success

By Zeb Holmes and Ugur Nedim

Australia’s first pill testing trial has been hailed a resounding success, after analyses identified potentially lethal ingredients in the drugs of attendees and thereby allowed them to make informed decisions about whether to consume the substances

The trial at the Groovin the Moo festival in Canberra over the weekends tested a total of 85 substances, with many users surprised by what they were about to take.

Lethal ingredients

The trial identified the presence of two highly toxic chemicals, including the “absolutely lethal” N-Ethylpentylone (ephylone), which has been responsible for several deaths and mass overdoses around the world.

Emergency doctor David Caldicott explains that ephylone is a stimulant that can cause circulation problems, dangerous hallucinations and lethal heart palpitations.

The lethal substances were found inside clear capsules and disposed of immediately, potentially preventing another two deaths at Australian music festivals.

It was also revealed that half of the drugs tested were cut with substances not known or expected by users, from paint, to lactose, to toothpaste.

Opportunity to educate and provide support

The testing of substances was conducted in a standalone tent next to the festival’s medical centre. The operation was run by trained staff, including counsellors who took the opportunity to educate users and direct them, where appropriate, to support services.

Pill testing works by taking a minute sample from a pill, or a few granules from a capsule, which are then analysed by a doctor and chemist to determine the composition. The results are then given to the person who provided the substance, allowing them to decide whether to take some or all of it, or to dispose of it in the bin provided.

The service required users to sign a waiver releasing operators, workers and the state from liability in the event of an overdose from the use of the substances tested.

Dr Caldicott reported that five festival-goers discarded their pills upon being given the results of testing, with “a quarter to a third” advising that they would not be consuming the substances.

Ambulance commander Toby Keen said that the number of people treated for intoxication was similar to previous years, but reported that none of the people treated had a wristband indicating their participation in the pill-testing trial.

Government opposition

ACT Liberal legal spokesperson, Jeremy Hanson, says he continues to oppose pill testing on the basis that it sends a message that drugs are safe, and potentially exposes others to legal liability in the event of an overdose after testing.

The ACT Health website disagrees with the claims of sending the wrong message, pointing out that “[e]ven with laboratory-level testing, service staff never advise users that the drug they are taking is ‘safe’.” ACT Health Minister Meegan Fitzharris similarly emphasises that, “It’s really important to note that it doesn’t in any way condone illicit drug use. It is an important harm-minimisation measure.”

And legal commentators point out that the issue of legal liability is adequately dealt with by way of a waiver of liability.

Police cooperation

Meanwhile, police cooperated with the trial by not entering the pill testing stall at any time and not pursuing those who surrendered their substances for testing.

“While ACT Policing does not condone the use of illicit drugs, we do support harm minimisation strategies such as the decision to provide an accommodating environment to allow for pill testing,” a police spokesperson stated. “As a police force, we will continue to target and investigate the sale and supply of illicit drugs.”

There were only two arrests for drug charges at the festival, while an earlier stage of Groovin the Moo, held in the lower NSW Hunter Valley, saw 40 people arrested for drug possession.

NSW government inaction

According to 2016 government data, about 8.5 million people — or 43 per cent of Australians aged 14 and over — have used recreational drugs such as cannabis, methamphetamines, ecstasy and illegally obtained pharmaceuticals in their lifetime. So prohibition has clearly not stopped people from taking drugs.

NSW Greens MP Dr Mehreen Faruqi has called for pill-testing to be introduced across NSW, saying the Groovin the Moo trial proves the practice can save lives.

“The NSW Government needs to get out of the way to allow experts to get on with the job of keeping people safe,” she remarked. There was clear evidence that the government’s current “punitive, heavy-handed approach” to drug use isn’t working.

But unfortunately, both the NSW Labor and Liberal parties have so far refused to support pill testing in our state. It is hoped the recent success of Groovin in the Moo and the voices of health experts and other frontline workers will help change their minds.

The Vic Drug Law Reform Report Part 2: Law Enforcement and Prohibition

As reported in Part 1, the Victorian parliamentary Inquiry into Drug Law Reform report was tabled in state parliament last week. It recommends a large number of sensible policy approaches to illicit substances, many of which relate to drug law enforcement.

Indeed, the report acknowledges that law enforcement strategies have had little impact on eradicating drug supply and demand, but what it has done is increased the harms associated with outlawed substances, including contributing to the growth of “black market crime.”

The document delivers recommendations regarding law enforcement that include decriminalisation for certain offences and an overhaul of drug driving laws, so there’s an emphasis on testing for impairment levels, rather than mere traces of illicit substances as currently happens.

Drug offending

The report identified a range of programs used by courts to address substance use disorders, when they’re found to be an underlying cause of people committing crimes. And the committee recommended these programs be expanded.

One of these is the Court Integrated Services Program. It provides services, such as case management, for offenders with substance use disorders four months prior to sentencing, with the aim of reducing reoffending and promoting safety.

The Drug Court of Victoria is also earmarked for expansion. It allows individuals whose offending is drug or alcohol related to undergo a treatment program, rather than incarceration. If the offender fails to complete the treatment or reoffends, they can be ordered to serve a custodial sentence.

And the drug law reform committee also recommends treating personal drug possession and use “as a health issue rather than a criminal justice issue,” meaning that these offences would become decriminalised.

Law enforcement approval

Executive officer of the Yarra Drug and Health Forum Greg Denham said “quite frankly our emphasis on policing and prisons to stop drug use have failed and we need to take a new direction, with special emphasis on health, human rights and harm reduction.”

Mr Denham has keen insight into the issue of drug law enforcement as he’s a former Victoria police senior sergeant, who served seventeen years on the force. He believes the inquiry has drawn a line in the sand whereby efforts attempting to address drug harms can now be redirected.

The harm reduction advocate agrees with the “general philosophy” of the report, which would leave “the courts to deal with more problematic and difficult cases,” as “the majority of people that use illicit drugs don’t cause any harms to themselves or others and they should be treated accordingly.”

“The report makes sense from a number of perspectives, not the least of which would be the massive saving of public funding if we moved toward decriminalisation models, such as that currently used in Portugal,” Denham further made clear.

The most pressing points

Leading drug law reformist Dr Alex Wodak considers the decriminalisation of personal possession, the regulating and taxing of recreational cannabis, and the expansion of opioid substitution treatment (OST) as the most significant recommendations.

The president of the Australian Drug Law Reform Foundation also pinpoints the trialling of the use of the pharmaceutical-grade opioid hydromorphone for individual’s that haven’t responded to other OST as important.

“Many countries have adopted these approaches some time ago,” the doctor told Sydney Criminal Lawyers. He added that others are “now seriously considering or have approved, but not yet implemented, a number of these policies”

“It’s important to remember that there is now a large and growing consensus that the war on drugs has failed comprehensively,” Dr Wodak continued.

The legacy of the prohibition

According to Dr Wodak, “deaths, disease and costs to the economy from cigarettes dwarf” those caused by all psychoactive drugs. Alcohol is next in line. And bringing up the rear are the harms caused by prescription and illicit drugs.

The drug law reformist posed the question as to why ice suddenly became so readily available in this country. Answer: “the lore of prohibition” is that “drug traffickers try to minimise the chance of being detected, so they try to traffic more powerful drugs that occupy smaller volumes.”

Alcohol prohibition in the US saw beer disappear “replaced by wine and spirits,” Dr Wodak outlined. But, as soon as prohibition was over, “beer reappeared.” And heroin became the replacement a decade after some Asian countries banned the smoking of opium.

The need for reform is drastic

“The more and the longer we press down on the drug market, the more dangerous the drugs in the market become,” the doctor stressed. “There is growing awareness that current policies are not just ineffective, but also dangerous.”

Indeed, in the face of all this evidence, let it be hoped that Victorian authorities heed the recommendations of the report, which have already produced positive outcomes elsewhere around the globe. And from there, the various Australian jurisdictions take the hint and do the same.

The Vic Drug Law Reform Report Part 1: A Sensible Approach to Drugs

The long-awaited Victorian parliamentary Inquiry into Drug Law Reform report was released last week. The 50 recommendations delivered read like a checklist of proposals that drug law reformists and harm reduction experts have long been advocating for.

Significantly, politicians of all persuasions have recommended a much-needed sensible approach to illicit substances, in an acknowledgement that the intensified drug law enforcement approach that’s marked the close to fifty years of the war on drugs is failure.

Inquiry chair Labor MP Geoff Howard remarked in the forward to the report, that “there is growing recognition that a dominant focus on law enforcement strategies… has contributed to increased harms, such as overdoses and black market crime.”

Reducing youth harms

“We keep saying that we cannot arrest our way out of this problem, yet year on year the amount of drug arrests increases,” stressed Reason Party MLC Fiona Patten. “It is very clear that current policy isn’t working and the government needs to accept these recommendations.”

The inquiry recommendations include that Victorian authorities look towards decriminalising personal possession and use, trialling pill testing at events and removing drug detection dog operations at music festivals.

“At the moment, the war on drugs is a war on our young people,” Ms Patten continued. She explained that a third of Victorians under the age of 30 admit to using illegal drugs, and she doubts this figure is likely to change.

Swimming with the tide

Ms Patten initiated the drug law reform inquiry that received 230 submissions and held nine days of hearings. And she’s no stranger to sparking inquiries that have successful outcomes.

The Reason Party leader instigated the end of life choices inquiry, which saw voluntary assisted dying laws passed last November. And her private member’s bill prompted an inquiry, which saw the Andrews government agree to a trial of the Richmond medically supervised injecting centre (MSIC).

The positive outcomes produced by MSICs around the globe, as well as the Kings Cross injecting facility, are proof “that a progressive approach to drug law really works,” Patten made clear. Not only is the health of injecting drug users improved, but so is the amenity of the local community.

And the inquiry’s recommendations are in line with this type of reform. “We can limp on with our current policy or we can make some real changes,” Ms Patten explained, “by moving the focus of drug offences to health treatment rather than criminalisation.”

Recreational cannabis

The heavy-handed law enforcement approach to drugs embraced by Australian authorities began in the US, when Nixon launched the drug war in 1971. And further back, the prohibitionist system now enshrined in the UN drug conventions was also provoked by the States a century ago.

However, the use of pot for pleasure is now legal in nine US states. And Canada is set to legalise recreational cannabis later this year. The 23rd inquiry recommendation suggests investigating these developments with a view to implementing a system of legalised cannabis for “adult use” in Victoria.

Last year, the committee members paid a visit to Colorado, the first US state to sell retail recreational cannabis. Tax generated by the market has been funnelled into schools and health services. “The regulation of cannabis businesses in Colorado was inspiring,” Ms Patten recalled.

And patients who use medicinal cannabis will be glad to note that the inquiry recommends both the state and federal government slash the red tape preventing access to cannabis medicines, which despite being legal, are currently inaccessible to the vast majority of people who need them.

Opioid substitution therapy

The report states that “the main form of treatment for opioid dependence in Australia is opioid substitution therapy (OST), where the drug of dependence is substituted with controlled opioid medication, mainly methadone and buprenorphine.”

The inquiry makes a number of OST recommendations, including expanding access to treatments, that the government fund dispensing fees to remove barriers to access, and establishing a dedicated arm of government to oversee OST policy.

Ms Patten’s one misgiving is that the report doesn’t feature the Heroin Assisted Treatment program in Switzerland and Canada, which provides heroin to people, who don’t respond to OST. Evidence shows it’s a pathway to stopping, and 99 percent of Swiss participants stay clear of crime.

It’s not the first time

The Andrews government now has six months to respond to the report. Ms Patten believes “the political climate is right to embrace these recommendations.” And she points to the 1980s HIV/AIDS crisis, when the federal government became a world leader in drug reform and harm reduction.

“Victoria has a chance to do the same with drug reform and the recommendations of the report give the government a fantastic foundation to build on,” she concluded.

Part 2 of the report on the Victorian drug law reform inquiry reflects on law enforcement proposals and the problems of prohibition.

A Summary of NSW Drug Laws

By Paul Gregoire and Ugur Nedim

In NSW, the use, possession, supply, cultivation and manufacture of prohibited drugs and/or plants are all crimes. The state offences and penalties relating to prohibited drugs are set out under the provisions of the Drugs Misuse and Trafficking Act (DMT Act) 1985.

Section 10 of the DMT Act outlaws drug possession. Section 12 makes it a crime to self-administer a prohibited substance. Division 1 of the Act also contains the offences of administering drugs to others, letting someone else administer drugs to you, and possessing equipment used to take drugs.

A maximum penalty of 2 years imprisonment and/or a fine of $2,200 applies to each these offences. They are ‘summary offences’, which means they are prosecuted in the Local Court rather than being heard in a higher court such as the District Court.

State regulations and controls regarding medicines, prescribed restricted substances, and poisons are primarily set out in the Poisons and Therapeutic Goods Act 1966. The Act provides that the distribution, prescription and administering of these substances is restricted to qualified and authorised persons.

Section 16 of the Act provides that an individual found in possession of anabolic steroids can face up to 2 years behind bars and/or a fine of $2,200, while those found in unlawful possession of a prescription drug or having forged a doctor’s script can be sent away for 6 months and fined $2,200.

International drug controls

“It’s impossible to understand the history of NSW drug laws without looking internationally,” explained Ben Mostyn, founding member of the UNSW Australian Drug Law Reform Initiative. “The United Nations and the USA have driven the war on drugs by developing the three UN conventions.”

The lawyer outlined that the 1961 Single Convention on Narcotic Drugs is the primary international drug control treaty. It lists a range of restricted drugs under its four schedules. “Of course, little scientific evidence existed in 1961 to support such a scheduling system,” Mr Mostyn added.

The 1971 Convention on Psychotropic Substances was designed to place controls on amphetamines, psychedelics and benzodiazepines. It also contains four schedules of controlled substances. The first schedule being the most restrictive and the fourth being the least.

According to Mostyn, the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, “which Australia is party to, effectively makes it compulsory for countries to criminalise drug possession.”

This convention also contains two tables that list precursor chemicals, reagents and solvents which are frequently used in the manufacture of illicit substances.

Domestic replication of the conventions

Although Australian states and territories are not signatories to these international conventions, and therefore are not bound by their terms, there is a tradition that these jurisdictions should act in accordance with the treaties entered into by the federal government.

And the international drug controls are reflected in the laws set out in the DMT Act.

As Mr Mostyn points out NSW uses “a scheduling system, with one primary schedule.” Schedule 1 of the DMT Act contains a list of around 200 outlawed drugs, prohibited plants, illicit drug precursors and reagents.

NSW supply charges

The NSW scheduling system provides a range of quantities for each illicit substance that has an effect on the charges laid against an individual found in their possession, as well as the penalties they face.

These quantities are broken down into a small quantity, a traffickable amount, an indictable quantity, a commercial amount and a large commercial supply. The applicable weights vary from drug to drug.

But the purity of an illicit substance doesn’t matter in the state regime. Section 4 of the DMT Act contains what’s known as the “admixture provision,” which outlines that a person found in the possession of an illegal drug will be charged with the entire weight of the substance, regardless of its purity.

So, if the total weight of a white powder is 1 kilogram, but analysis finds it’s only 25 percent heroin, a defendant will be charged in respect of 1 kilogram of heroin, not with the 250 grams of pure heroin it contains.

This is different to Commonwealth legislation against drug importation and exportation, where the actual weight of the prohibited substance within the admixture is the relevant quantity for the purposes of the law.

Section 29 of the DMT Act stipulates that if a person is found with more than a traffickable amount of a prohibited drug, they can be found guilty of supply, even if there’s no evidence they were intending to provide the substance to another person. This is known as deemed supply.

So, for example, traffickable amount of cocaine, heroin or amphetamines is 3 grams, while an indictable amount is 5 grams. A case involving the supply of an indictable quantity – whether deemed or an actual supply – must be heard in a District Court and a maximum penalty of 15 years in prison, and/or a fine of $22,000 applies.

A commercial quantity of cocaine is 250 grams. This amount can see an individual imprisoned for up to 20 years and receive a fine of up to $385,000. And a large commercial supply of the drug is 1 kilogram, which comes with a maximum sentence of life imprisonment and/or a fine of $550,000.

Cannabis cautioning

Back in April 2000, the NSW government introduced the cannabis cautioning scheme. This means NSW police officers have the discretion to issue a caution to adults found in possession of up to 15 grams of cannabis. And an individual can only be issued with two warnings before charges must be laid.

2011 NSW auditor general’s report revealed that over its first ten years, the cannabis cautioning scheme had diverted more than 39,000 minor cannabis offences from the courts. And the auditor general said that cautioned individuals are less likely to reoffend, than those who are charged.

Drug law reform is way overdue

However, like an increasing amount of NSW citizens, Mr Mostyn believes NSW drug laws are outdated and in need of an overhaul. “The entire way we view recreational drug use, problematic drug use, and addictive drug use needs to be reconsidered,” he told Sydney Criminal Lawyers.

Mr Mostyn questioned the validity of laws that allow a person to be incarcerated for up to 2 years for cannabis or MDMA possession, which he finds is “entirely out of sync with community expectations and the scientific evidence on effective drug treatment.”

The 2016 National Drug Strategy Household Survey found that 74 percent of the Australian population do not support cannabis possession being a criminal offence.

The survey also reveals that 95 percent of the population don’t think people should be sent to prison for cannabis possession, while 87 percent of Australians don’t believe MDMA possession should be a gaolable offence.

And less than 25 percent of the population think people should be put away for being in possession of heroin or methamphetamine.

“The community is way ahead of the politicians on this issue,” Mr Mostyn concluded. It understands “that the criminal justice system is an expensive and ineffective way of dealing with the complicated social problem of drug use and addiction.”

Does Prohibiting Pill Testing Make Our Government Complicit?

By Paul Gregoire and Ugur Nedim

Last Friday’s mass overdose at a dance party in West Melbourne is yet another example of Australian authorities continuing to allow young people to be hospitalised, and even die, whilst governments in Europe have implemented programs to prevent harms at events like these.

Detractors of pill testing insist this evidence-based harm reduction method encourages drug use.

But if the over fifty-year war on drugs should have taught these critics anything, it’s that some young people, as well as quite a few older individuals, will continue to take mind-altering substances whether they’re legal or not.

Indeed, the “just say no” approach expired along with the rest of the Reagan administration.

So more and more people are coming to the view that if these substances remain illegal – and users are forced to obtain them through the black market where there are no quality controls – harm reduction measures are not only justified, but required to save lives.

Yet another avoidable tragedy

At 11 pm on January 26, Victorian emergency services were called out to the I Am Hardstyle event at Melbourne’s Festival Hall in relation to adverse reactions partygoers were having to a bad batch of drugs. Eight people were treated by paramedics in a first aid area, whilst a ninth person collapsed.

Ambulance Victoria state health commander Paul Holman told reporters on the following day that the individuals were “lucky they didn’t die.” He described the patients as hyperthermic, unconscious, and non-breathing.

The nine young people were taken to various hospitals around the inner city. On Saturday morning, five of the patients were in a critical condition, while one was still critical that evening.

Letting the preventable continue

Of course, the Festival Hall incident is only the latest in an ongoing series of overdoses at festivals and events in Victoria, as well as elsewhere around the country. And it’s after each such incident that renewed calls for pill testing, or drug checking services, are made.

Twelve months ago, three people died and 20 were hospitalised after taking a bad batch of ecstasy pills around Melbourne’s Chapel Street nightclub precinct. While, on December 30, a 19-year-old man had to be airlifted from a festival in the Gippsland, due to a suspected drug overdose.

“This most recent tragedy in Victoria, and those that precede it, are all due to our ineffective drug laws and lack of drug checking services,” Nevena Spirovska, the Victorian convener of Unharm, said. “It’s incredibly frustrating to think that these overdoses could’ve been prevented.”

The drug law reform campaigner added that refusing to make pill testing services available at events leads to “overdoses, over-burdened emergency services, and the proliferation of the rhetoric that ‘people who take drugs deserve to die.’”

Politicians pushing for the inevitable

On November 29 last year, the Victorian Greens gave the first reading in state parliament on the Lab-Grade Pill Testing Pilot Bill 2017. If this legislation is taken up, it will pave the way for pill testing services in the state.

Victorian Greens MLC Colleen Hartland has been advocating for pill testing for years now. She told Sydney Criminal Lawyers that the bill is set to be debated in 2018, possibly around mid-year. And the latest tragedy “has certainly reinforced” the need for it to be passed.

Ms Hartland said events like last Friday’s are “sadly” going to happen. “We know that every year, particularly in summer, there are significant overdose incidents,” she explained. “It’s not a question of if it will happen, it’s a question of when.”

“The tide is turning”

The Victorian Greens health spokesperson said “we’re starting to see a groundswell of support in the community.” But, in the case of some politicians, we’re seeing them put “politics before people’s lives, because politically this is not an easy issue.”

Although, Ms Hartland pointed out that there are “some very promising signs,” such as the example of Labor MP Geoff Howard, who “has gone against the rest of his party and publicly supported lab-grade pill testing at festivals.”

Mr Howard, who is chairing a state parliamentary inquiry into drug law reform, attended the Rainbow Serpent festival last weekend to discuss the benefits of pill testing with health experts, and harm reduction advocates.

Victorian premier Daniel Andrews said on Sunday that he was not prepared to reconsider his opposition to pill testing. However, Mr Andrews was too sheepish to give his support to the North Richmond safe injecting facility, until just about every state institution had provided its approval first.

It’s self-evident

The I Am Hardstyle event that was held at Festival Hall last Friday night also takes place in Germany and Austria. In these European countries, along with others such as the Netherlands, Switzerland and France, pill testing has been a reality since the 1990s.

Authorities in Europe are so set on preventing festival goers from experiencing any harms associated with drug use at these events that the European Union actually produced pill testing best practice guidelines.

As Ms Spirovska outlined pill testing has multiple benefits: individuals “have their substances chemically tested, engage in an informed dialogue with trained professionals issuing appropriate harm reduction advice for that substance, and alert authorities to bad batches of drugs.”

There’s been suggestions that last Friday’s overdoses were linked to PMA, which is similar in effect to MDMA, but much more toxic. While the overdoses on Chapel Street last year, and another tragedy on the Gold Coast in 2016, were linked to ecstasy laced with the dodgy substance NBOMe.

What could have been

Hypothetically, a pill testing service would have allowed any of the individuals affected by these bad batches of drugs to have these substances checked by health professionals using laboratory-grade equipment. And the partygoers would have been warned about the dangers their drugs posed.

These individuals could have then made an informed decision whether to deposit their drugs in amnesty bins provided. And if they had disposed of them, they wouldn’t have subsequently ended up in hospital, and none of them would have died as a result of taking a deadly drug.

Morally wrong not to

The ACT government made an enlightened decision last September, when it approved the nation’s first legal pill testing trial at a music festival.

And despite the initial plan for the trial that was to be held on land controlled by the federal government mysteriously falling through, it looks as if the STA-SAFE consortium might be running the pill testing trial at the Groovin the Moo festival this April.

According to Spirovska, the implications of governments continuing to refuse to implement pill testing trials “are tragic and potentially deadly.” And “authorities have an obligation to take action on this public health issue.”

“Being informed and safe is not a privilege young people should be dying for,” she concluded.

Medicinal Cannabis: Legal But Inaccessible

By Sonia Hickey and Ugur Nedim

The Turnbull government passed the Narcotic Drugs Amendment Bill in February 2016. The ensuing legislation set up a licensing scheme to allow for “the cultivation and production of cannabis and cannabis resin for medicinal and scientific purposes.”

A handful of licences were issued within the first few months, and many more were in various stages of determination. Recognising it would be some time before locally produced cannabis-based products would be available, the Health Minister Greg Hunt set up an importation scheme.

But two years after the legislation was enacted, medicinal cannabis is still notoriously difficult to access.

Benefits of medicinal cannabis

The potential value of medicinal cannabis in treating a wide range of conditions has been confirmed by scientific research in a number of countries.

The medicine has been found to ease the discomfort associated with chemotherapy, to treat the symptoms of Alzheimer’s disease and multiple sclerosis and to reduce seizures in cases of severe epilepsy. Cannabis medicines have also been widely recognised for their ability to provide relief for those living with chronic pain.

The problem is that doctors can’t prescribe the medicine unless they have been specifically authorised to do so. And even if they could, it is unlikely the local chemist would stock what you need. And on top of that, the limited availability makes the cost of the medicine beyond the reach of ordinary people.

In fact, the very same federal and state laws that made medicinal cannabis legal have such restrictive rules and regulations, that accessing the medicine is impossible for many.

Bureaucracy limits access

Medicinal cannabis campaigners such as Lucy Haslam are baffled – they say there are hurdles at every step of the process, from cultivating the plant and manufacturing the medicine, through to prescribing and dispensing it to patients.

Only one medicinal cannabis product has been approved by the Therapeutic Goods Administration (TGA) – the government department that allows medications to be legally distributed in Australia.

To legally obtain any other cannabis-based product, patients must apply to the government on an individual basis. If the product contains THC – the element that gives cannabis its dissociative effect – approval is required from both the state and federal governments.

Applications must be completed by a specialist medical practitioner, not a local GP, and the specialist must establish a case for why medicinal cannabis should be used instead of another drug that already exists on the TGA register.

Doctors and even politicians assert that the process is so complex and inconsistent that it is unworkable.

Of the 64 applications for access to medicinal cannabis made to NSW Health between August 2016 and October 2017, more than 40 were sent back for further information. Eighteen were rejected entirely.

Only a handful of people have so far been granted access to medicinal cannabis – roughly 150 people across the entire country.

As mentioned, another barrier is the high cost of treatment – making medicinal cannabis products unaffordable for many ordinary Australians, and is not covered by Medicare.

It is hoped that when Australia begins to actually establish its own local production, supply will increase and the medicine will be more affordable.

The black market is thriving

It has been reported that as a result, the unauthorised supply of cannabis medicines is thriving.

There are producers who are simply trying to do the right thing – to provide a medicine to chronically ill people which they cannot otherwise access.

They have seen the benefits of the drug first hand. But despite their goodwill, these suppliers are being raided, arrested, charged and sent to court to face the prospect of a criminal record or even imprisonment.

Meanwhile, the bureaucracy continues to fail those in need.

Drug Supply Charges for Cough Medicine Ingredient Dismissed

By Paul Gregoire and Ugur Nedim

Matthew Woods and his co-accused Phillip Kandarakis were arrested in April 2014, and charged with the supply of a prohibited drug under section 25(2) of the Drug Misuse and Trafficking Act (DMT Act).

Officers from Strike Force Taipan executed a warrant at Barrack Heights, where they seized 4,993 grams dextromethorphan. The weight was not less than the large commercial quantity of the drug.

The pair were charged with supplying the drug between 20 March and 2 August 2013. The maximum penalty for the offence of supplying a large commercial quantity of a prohibited drug is life imprisonment and/or a fine of $550,000.

Dextromethorphan is a common active ingredient in over-the-counter cough medicine. On the streets, the drug is known as “dex,” or “poor man’s PCP.” The drug can produce a euphoric or hallucinogenic effect on those who use it.

The quantity found at Kandarakis’ property had been sourced in India, and then forwarded to Sydney. It was claimed the drug was going to be used in a salted mix for cows.

Dextromethorphan is an isomer of the drug methorphan. An isomer is a molecule that has the same molecular formula as another molecule, but has a different chemical structure.

Disputing the charge

Before a jury was empanelled, Mr Woods’ lawyers made an interlocutory application to NSW District Court judge Helen Syme to quash the indictment on the basis dextromethorphan is not a prohibited substance under the DMT Act.

Section 3 of the Act outlines that a prohibited drug “means any substance, other than a prohibited plant, specified in schedule 1.” A substance “includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers.”

Schedule 1 lists the traffickable, small, indictable, commercial and large commercial quantities of all prohibited plants and drugs. Methorphan, along with levomethorphan (another isomer of methorphan), are listed in the schedule. However, dextromethorphan is not.

Schedule 1 of the DMT Act also includes an analogue provision.

This subsection states that a prohibited drug also includes any unlisted related drug if it is either “a structural isomer having the same constituent groups as the drug,” or if it is “a structural modification obtained in one or more of the following ways…” And a long list of ways is outlined.

“Under the analogue provision, where a substance that is not a prohibited drug has psychotropic properties, and is structurally similar to a prohibited drug in specified ways, it is treated as a prohibited drug for the purpose of the Act,” explained Liberal MLC Matthew Mason-Cox in 2013.

The findings of the trial judge

Both the prosecution and defence tendered statements from experts. And there was little disagreement between them.

They agreed that an isomer can either be a structural isomer or a stereoisomer. A structural isomer has the same molecular formula as another molecule, but a different bonding arrangement between atoms. Whereas, a stereoisomer has both identical molecular formula and arrangement of atoms.

Dextromethorphan is a stereoisomer of methorphan, but not a structural isomer.

Judge Syme concluded that as dextromethorphan is an isomer of methorphan, but not a structural isomer, it is not capable of being included in the analogue provision of schedule 1 of the DMT Act.

However, Her Honour found that dextromethorphan does appear in the Poison and Therapeutic Goods Act 1996 as a restricted substance. And this Act contains offence provisions for the supply of restricted substances.

The judge ruled the drug was prohibited, as she found no conflict between the two Acts.

The Crown concedes

Mr Woods appealed Judge Syme’s interlocutory judgement to the NSW Court of Criminal Appeal (NSWCCA) on the sole ground “that her Honour erred in finding that dextromethorphan is a prohibited drug under the DMT Act.”

On 31 August last year, the Crown conceded that dextromethorphan was not a prohibited substance for the purposes of the DMT Act, and that Her Honour had made an error.

The Crown’s concession was that the definition of a prohibited drug in section 3 of the DMT Act “means” any substance specified in schedule 1, including the analogue provisions.

Both parties agreed that the definition of substance is the “preparation and admixture and all salts”, which means the total weight of the substance found, not merely the weight of the drugs contained within that substance.

So, for example, if the total weight of a white powder is 1 kilogram, but an analysis of the substance finds that it is only 25 percent heroin and the rest is something else, the accused will be charged in respect of 1 kg of heroin for a NSW state offence such as possession or supply, not with 250 grams of the substance.

The Crown conceded that substance is not meant to work as a “catch-all” for all substances that are not listed within schedule 1, or covered in the analogue provisions.

This was consistent with the argument made by Mr Woods’ lawyers.

The NSWCCA was told that that if the trial judge was correct, then the list of chemicals specified as prohibited substances would expand “far beyond those considered to be prohibited drugs under either the explicit list included in the schedule or those brought within the schedule by the analogue provisions.”

The NSWCCA findings

The NSWCCA agreed with this line of argument. They therefore allowed the appeal, vacated the judgement, and quashed the indictment. On 2 February this year, the court also ordered the state to cover Mr Woods’ legal costs.

“The effect of this court’s decision is that the applicant had been charged with an offence unknown to law,” the NSWCCA justices found. “No further proceedings under the DMT Act can be brought against him for the supply of dextromethorphan, as it is not a prohibited drug.”

Moves underway to ban the substance

Following the findings of the NSWCCA, NSW attorney general Mark Speakman announced the government was looking into classifying dextromethorphan as a prohibited drug.

A spokesperson for the attorney general said dextromethorphan had been referred to the government’s committee that makes recommendations about adding substances to the DMT Act list.

“Although it is a substance that can be abused, it also has legitimate medicinal uses,” the spokesperson remarked.

Dextromethorphan has not yet been not listed in schedule 1 of the DMT Act, although it remains a ‘restricted substance’ and is heavily regulated under the provisions of the Poisons and Therapeutic Goods Act.

Reaping the Benefits of a Regulated Cannabis Market

Developers in the US state of Colorado announced last month that if they receive the final approval from the city council, they’ll be opening the world’s first marijuana mall. Chris Elkins and Sean Sheridan said they’ve already obtained city permits and a building has been purchased.

The mall, which will contain five cannabis dispensaries, is set to open next April in the town of Trinidad. Recreational marijuana in Colorado is now a billion dollar a year industry that generated $198.5 million in tax revenue last year.

Colorado and Washington were the first two US states to legalise recreational cannabis on November 6 2012. And since that time, six more states have legalised recreational use, which means one in five Americans now live in a jurisdiction where they’re free to take pot for pleasure.

Get with the times

Many are heralding the economic benefits the burgeoning legalised weed markets are bringing to these states as a “green rush,” much like the mid-nineteenth century Californian gold rush. But unlike gold, cannabis isn’t a scarce resource, and the growth industry is unlikely to run dry.

And as Australian authorities continue their decades-long heavy-handed law enforcement approach to the recreational cannabis, the experience in the States is leading many local commentators to question the government’s continuing cannabis marijuana prohibition stance.

Reaping the benefits

The legal cannabis industry in the US was worth $6.6 billion last year, according to New Frontier Data. That included $1.9 billion for recreational sales, as well as $4.7 billion via the medicinal cannabis market. The use of marijuana for medicinal purposes is now legal in 29 US states.

The states of California, Massachusetts and Maine all voted to legalise recreational cannabis use last November. The sixth-largest economy in the world, California is set to commence retail sales on January 1 next year, while Massachusetts and Maine are following in mid-2018.

And with the addition of the Californian market, it’s estimated that the US cannabis industry will be worth $24.1 billion by 2025.

However, even before these additional markets begin, it’s been estimated that as of January this year, there were 122,814 full-time jobs being supported by the legal cannabis market. And 57,958 of them have been created by the retail sale of recreational marijuana in the five states where it’s available.

These figures include those that cultivate the plant, along with retail outlet owners and employees. But, they also take into consideration lawyers advising cannabis businesses, realtors specialising in commercial cannabis real estate, and electricians consulting grow operations.

Viva Las Vegas

Nevada was the last big player to set up a recreational marketplace. On July 1 this year, it began legal sales. However, it got off to a rocky start, as the first licence to transport the product from the farm directly to the store was issued two weeks later.

This left retail outlets concerned that they were going to run out of marijuana products as demand was better than expected during the first fortnight. Dispensaries in that state raked in more than $27 million in the first month of recreational sales, which generated $3.6 million dollars in taxes.

The largest cannabis store in the world opened its doors in downtown Las Vegas this month. NuWu Cannabis Market is an initiative run by the region’s Indigenous Paiute people. While taxes on their products are the same, the revenue is going towards funding health services for their community.

The Colorado experience

The first legal recreational cannabis purchase in the United States this century took place in Denver, Colorado on January 1 2014. And ever since, the Mountain State’s regulated market has been held up as the shining example of the benefits recreational marijuana can bring.

Victorian Reason MLC Fiona Patten advocates for legal recreational cannabis in Australia. She paid a visit to Colorado in July to get a firsthand experience of the state’s regulated market.

Ms Patten said she was “incredibly impressed” by what she witnessed. Whilst there, she met with a whole range of organisations, including the departments of health and finance, along with the police, to find out how the industry is fairing.

“Everyone’s fear is that the legal industry seeps into the illegal industry. And there are protections on that,” Ms Patten told Sydney Criminal Lawyers. “They believe that 85 percent of all cannabis that is sold in Colorado is sold through the legal system. We can’t say that for tobacco in Australia.”

For the wider community

The tax revenue generated by recreational cannabis sales in Colorado has been funnelled back into community healthcare services, including drug rehabilitation, as well as providing the funding to build new schools and for the allocation of grants to educational facilities.

As Ms Patten pointed out, Pueblo County in Colorado is going to begin providing grants to all high school graduates beginning their university education as of next year. And on top of all this, the Reason Party leader noted “there’s lots of consumer education.”

State officials in Colorado have reported the availability of the drug has had no overall adverse effects since it began being sold in retail stores. Cannabis products are heavily regulated, and they’re sold in childproof containers.

“They’ve got this amazing seed to sale tracking system,” Ms Patten continued. It’s required that each plant for sale is tagged with a radio frequency identification chip. “So, every seed that a licenced cultivator grows is tracked right to when the person buys the product that it created.”

The Australian scene

A 2013 National Drug and Alcohol Research Centre report found that Australian law enforcement activities cost over a billion dollars a year. The 2015-16 Illicit Drug Data report found that cannabis continues to be the most dominant illicit drug in Australia in terms of arrests, seizures and use.

The Australian Bureau of Statistics estimated that Australians spent in excess of $3.6 billion on cannabis in 2010. This is more than the $2.97 billion they spent on wine over the year 2015-16.

And an Essential Media poll taken late last year found that 55 percent of those surveyed supported cannabis being taxed and regulated like alcohol and tobacco.

For Ms Patten, it’s a no-brainer. “We are spending billions of dollars on prohibiting cannabis, when we could be earning billions of dollars on cultivating and regulating it,” she concluded. “We give this money to organised crime. Why wouldn’t we be giving it to our schools and hospitals?”