Daily Archives: October 11, 2018

October 11, 2018 Drug Possession, Drugs General
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NSW Music Festivals: Life-Saving Pill Testing Out, Saturation Policing In

By Paul Gregoire and Ugur Nedim

The NSW Police Force is continuing its assault on music festivals, while the state Coalition government has reinforced its anti-harm minimisation stance at these events.

NSW police were swarming at the recent Listen Out festival in Centennial Park. But they arrested only five individuals on supply charges, while 154 were nabbed for drug possession – an offence which many including a church-led coalition of 60 organisations is currently calling to be decriminalised.

The crackdown at Listen Out comes a fortnight after the police saturation at the Defqon.1 festival, where two young people tragically died of suspected drug overdoses.

180 officers were deployed at Defqon.1, some of whom were accompanied by drug detection dogs. Police were even observed hanging around the front of the medical tent, which is hardly an encouraging sign for any young person needing to seek help after consuming something dodgy.

In response to the deaths at Defqon.1, NSW premier Gladys Berejiklian tasked an expert panel to consider how to improve safety at these events.

But, the members of the panel are hardly an in touch and forward-thinking bunch. It’s comprised of NSW police commissioner Mick Fuller, NSW chief medical officer Kerry Chant and Independent Liquor Gaming Authority chairperson Philip Crawford.

And in her wisdom, Ms Berejiklian has stated that the panel will not be considering pill testing as an option, even though it’s an internationally-lauded evidence-based strategy that saves lives. She wants more of the failing drug war approach, such as increasing penalties for drug dealers.

Antiquated drug war tactics

“We have received an influx of messages from people reporting the excessive police presence at the Defqon.1 and Listen Out festivals,” Xiaoran Shi, admin of the Sniff Off campaign Facebook page confirmed. She added that recent NSW police statements confirm this.

Following Defqon.1, a NSW police statement outlined that a multifaceted operation – which included the Nepean LAC, Police Transport Command, North West Metropolitan Region Enforcement Squad, and the Police Dog Unit – was deployed in order to deal with the partying youths.

Ms Shi explained that the reason NSW police gives for using this “increasingly aggressive” approach is “saving lives”.

“This is darkly ironic considering the excessive police presence at Defqon.1 this year, where two young people tragically lost their lives,” Ms Shi continued. “It could not be any clearer that overpolicing does not save lives, it costs lives.”

The NSW Greens anti-drug dog campaign Sniff Off has been monitoring the ridiculously-flawed use of sniffer dogs by NSW police since 2011. Statistics show that from two-thirds to three-quarters of the time that a dog makes an indication a subsequent search results in no illegal drugs being found.

A dangerous aspect of the use of drug dogs is that they actually lead festivalgoers to partake in deadly drug taking practices, such as panic overdosing, where a person panics and swallows all of their drugs at once on seeing a drug detection dog operation to avoid getting busted.

Her head’s stuck in the sand

To lower the dangers of drug overdoses at music festivals there is a simple solution: pill testing. It’s been utilised in certain European countries – such as the Netherlands, Germany and Sweden – since the 1990s. Governments in Europe give this life-saving strategy the official thumbs up.

The ACT government was progressive enough to allow Australia’s first pill testing trial take place at Canberra’s Groovin the Moo festival in April this year. Of the 128 punters that had their drugs tested, two were found to have drugs that contained a substance that can be lethal.

That’s two lives potentially saved. But, Gladys doesn’t seem to be paying any attention.

“The NSW premier Ms Gladys Berejiklian said that she supports a zero tolerance approach to illicit drugs at youth music festivals,” remarked veteran drug law reformist Dr Alex Wodak, “what a pity that she doesn’t support a zero tolerance approach to preventable deaths of healthy young people.”

The president of the Australian Drug Law Reform Foundation suggested that if the premier was really invested in a zero tolerance approach she might consider shutting down NSW needle and syringe programs, as well as the medically supervised injecting centre in Kings Cross.

“After all, these are both pragmatic and highly effective responses to illicit drugs which are the antithesis of zero tolerance,” said the doctor, who was instrumental in bringing about both these initiatives that have saved thousands of lives in this state since they were implemented.

Looks are more important than lives

But, with NSW police commissioner Mick Fuller making up a third of the members of the music festival “expert panel” and notoriously anti-pill testing police minister Troy Grant still in office, it’s hard to see NSW authorities relenting on their seen-to-be tough on drugs stance.

Ms Shi said that after Defqon.1 and Listen out, “Sniff Off received numerous messages from people reporting that police were standing outside the medical tent, deterring genuinely ill people from seeking medical attention because they feared being questioned or searched by police.”

And to put a further nail in the coffin, Ms Shi explained that there was a stall set up selling drug testing kits at the Defqon.1 festival, and officers who had a bit of time on their hands were hanging around out the front of the store intimidating festivalgoers who were entering it.

Politicking over the lives of youths

As far as Dr Wodak is concerned, the roll out of pill testing is inevitable. And if it isn’t Ms Berejiklian who’s willing to put herself on the line in order to stop the next family’s suffering after their child dies due to a preventable overdose, then it is likely to be the next premier, or the next.

“I am not surprised when older male politicians play the grubby drug politics game,” Dr Wodak told Sydney Criminal Lawyers, as he recalled US president Richard Nixon winning the 1972 election in a landslide victory just after launching the war on drugs.

“At the risk of sounding sexist, I am surprised when a female politician uses the same grubby political strategy,” the doctor concluded. “Older generations have an absolute responsibility to make sure that they keep younger generations alive. Clearly we are not doing that.”

October 11, 2018 Drug Supply
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Deemed Drug Supply Laws Should be Abolished

By Paul Gregoire and Ugur Nedim

Eight out of nine Australian jurisdictions have deemed supply laws, which provide that an individual found in possession of more a certain quantity of a prohibited drug can be charged with supply, even if there’s no evidence of actual or even intended supply.

These laws were adopted throughout Australia in the early 1970s in response to the recommendations of a national inquiry. But the legitimacy of the laws has been questioned since that time, and Queensland later became the only jurisdiction to revoke the provisions.

In most Australian jurisdictions, there are currently at least four ways an individual can be charged with drug supply. Firstly, a person may be caught selling or distributing an illicit substance. Secondly, police may gather circumstantial evidence – such as communications and/or paraphernalia – which is suggestive of supply.

A third way is to have a quantity of drugs sufficient to support a charge of deemed supply. It’s this third avenue that has long been criticised as unjustified, and as undermining the rule of law.

Deemed supply in operation

Section 29 of the Drug Misuse and Trafficking Act 1985 (the DMT Act) stipulates that an individual found in possession of more than a traffickable amount of a prohibited drug in NSW can be deemed to have that substance in their possession for the purpose of supply.

If a charge of deemed supply is brought, it is for the defendant to prove on the balance of probabilities that the substance is in their possession for something other than supply – most commonly for personal possession, or less commonly that they are momentarily holding the drugs for someone else (nown as the Carey defence).

Schedule 1 of the DMT Act contains a list of around 200 outlawed drugs, prohibited plants, illicit drug precursors and reagents. It also outlines the traffickable, indictable, commercial, and large commercial quantities of each substance.

As the amount of any given prohibited substance increases, so do the penalties that apply – up to a maximum of life imprisonment and/or a $550,000 fine.

When personal use becomes supply

A traffickable quantity of MDMA (or ecstacy) is only 0.75 grams, which can be as little as three pills.

An individual could plausibly be found in possession of three pills for personal use, whether at home, at a music festival or anywhere else. But the law allows that instead of possession, they can be charged with drug supply.

The maximum prison time for MDMA possession is 2 years behind bars and/or a fine of $2,200. However, the maximum penalty for supplying between 0.75 grams and 5 grams of MDMA is 15 years in prison and/or a fine of $220,000 where the case is dealt with by the District Court.

Supply treated more seriously than possession

Most drug possession offenders are diverted away from the strict application of the criminal justice system, whereas if an individual is charged with drug supply, they’re more likely to be subjected to the full force of the long arm of the law.

And this situation could become a lot more drastic for people who use party drugs, as NSW premier Gladys Berejiklian has suggested that the expert panel she’s tasked with reviewing how to improve safety at music festivals consider tougher drug supply penalties.

The adoption of unjust laws

The 2015 article Deemed Supply in Australian Drug Trafficking Laws: a Justifiable Legal Provision? examines the rationale behind the adoption of deemed supply laws in this country, and outlines why they should be done away with.

Former NSW Director of Public Prosecutions Nicholas Cowdery, National Drug and Alcohol Research senior research fellow Dr Caitlin Elizabeth Hughes and UNSW Professor Alison Ritter authored the paper.

They explain that the reasoning behind the enactment of deemed supply laws were perceived difficulties in prosecuting and sanctioning drug traffickers, as well as the need for “desperate measures” to deal with the threat drug trafficking posed to the Australian public.

All jurisdictions adopted the laws. However, an overhaul of Queensland drug legislation in the mid-1980s saw deemed supply provisions dropped due to an outcry from legal and civil liberties groups, stressing that the laws were unnecessary, unjust, and impinged on the rights of the accused.

Inconsistency with criminal law

The authors point out that deemed supply laws are inconsistent with the three core principles of Australian criminal law: that there must a crime and an intent to commit it, a person is innocent until proven otherwise and the burden of proving the accused’s guilt is on the prosecution.

However, as the paper makes clear deemed supply laws completely undermine these criminal law foundations. An individual can be arrested, prosecuted and punished for drug trafficking without any actual proof of the supply or the intent to supply.

The accused from the outset is presumed to be guilty, rather than innocent. And the burden of proof is upon the accused to show that they were in the possession of the illicit substance for another purpose other than supply.

Inconsistent with international laws

The article goes on to explain that Australian deemed supply laws are out of step with drug laws in most other nations. In other jurisdictions around the world the mere quantity of an illicit drug is not enough to prove supply, and a number of other incriminating factors need to be taken into account.

The United Kingdom considered introducing deemed supply provisions in 2005. However, the proposal was thrown out as the approach was seen as “unjust, impractical, perverse and arbitrary”. One major criticism was the random setting of amounts to distinguish personal use and supply.

The harms caused to people who use drugs

Since 1985, the goal of Australia’s National Drug Strategy has been harm minimisation: reducing the harms associated with drug use. And with this it follows that drug traffickers should receive the most severe criminal punishments, and not people who use drugs.

However, as the paper explains, deemed supply provisions blur the line between drug suppliers and people who use the substances. There are documented cases where individuals found with drugs in their possession for personal use have been convicted of supply and sent to prison.

Indeed, deemed supply laws seem to be set up to penalise people for personal drug possession and small time dealers, as in cases where major crime figures are found in possession of large quantities of drugs, the reversal of the burden of proof is hardly necessary for the prosecution’s case.

Time to revoke the laws

“We recommend that deemed supply provisions be subject to legislative review or preferably abolition from Australian drug trafficking law in favour of a system where charges for supply are based on proof of actual trafficking or preparation for trafficking,” the report authors state.

They go onto explain that this would mean that a person in possession of only three MDMA pills would not automatically be presumed to have the intent to supply to others, unless there was something else that indicated they were, such as large amounts of money or a contact list.

This change to the laws “would be neither radical nor unfeasible”, according to the authors, but it would rather be “a progressive move towards proportional and justifiable drug trafficking laws”, which would rectify a poor policy decision that was make four decades ago.