Blog

You are here: Home » PagePage 2

Blog Content

Cannabis Legalisation Must be Accompanied By Overhaul of Drug Driving Laws

By Paul Gregoire and Ugur Nedim

The ACT looks set to be the first jurisdiction in the country to legalise recreational cannabis use, which will bring the capital territory into line with ten US states, as well as the entire nations of Canada and Uruguay.

ACT Labor MLA Michael Pettersson introduced the Personal Cannabis Use Bill that legalises the possession of up to 50 grams of cannabis and the home cultivation of up to four plants. This legislation is currently before a parliamentary inquiry, which will table its report by 6 June.

“The committee is undertaking it’s work diligently. And I’m confident that the bill has the in-principle support of a majority of MLAs,” Mr Pettersson told Sydney Criminal Lawyers on Tuesday. “I have watched the testimony so far and am confident we are able to legalise cannabis for personal use.”

The Labor backbencher added that “the inquiry has generated a lot of interest from the public and that’s reflected in the submissions”. And one of these, which is from the ACT Law Society, has raised the issue around cannabis legalisation and the unfair drug driving laws in Canberra.

The association that represents the local legal profession has pointed out that drug driving laws, as they stand in the ACT, aren’t justifiable when it comes to cannabis, as, just like in NSW, police aren’t testing for driver impairment, but rather they test for the mere presence of the drug.

Minute traces in saliva

Section 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act) provides that it’s an offence to drive with “a prescribed drug in a person’s oral fluid or blood”. Under the current regime, ACT police test drivers’ saliva for the presence of a drug, meaning minute traces can read positive.

The dictionary of the Act outlines that there are three prescribed drugs that police are testing for: MDMA, amphetamines and THC, the psychoactive component of cannabis. This is the same as what NSW police were doing until it added cocaine to its testing regime in July last year.

Section 19 of the Act stipulates that a driver has broken the law if they have a “prescribed concentration of alcohol” in their “blood or breath”. This relates to police randomly breath testing drivers for levels of alcohol in their blood scientifically proven to lead to impairment.

The four levels of prescribed alcohol concentration are set out in section 4E of the Act. Most licence holders are permitted to drive with level 1 – up to 0.05 – in their system. But, no individual can drive with the higher levels in their blood. And as the concentrations increase, so too do the penalties.

In its submission to the inquiry, the ACT Law Society put forth that “that drug driving laws should apply in circumstances where a person is impaired and/or intoxicated by cannabis”. And it further recommends that section 20 be amended to reflect this is the case for that drug.

The “harshest” in the land

The ACT Law Society further asserts that the territory has the “harshest drug driving penalties in Australia and that the penalties imposed for committing a drug driving offence are more punitive than those for drink driving”.

An example of this, the Society points out, is that a first time offender “with a small amount of cannabis in their system” – which doesn’t mean they’re impaired – is subject to the same maximum penalty – a fine of $1,500 – as a repeat level 2 drink driving offender.

Further, a first time offender caught with a level of cannabis in their system that may not mean they’re under the influence whatsoever, automatically has their licence disqualified for 3 years, which is the same penalty a first time level 4 drink driving offender receives.

“The penalties imposed for committing a drug driving offence are disproportionate because they do not account for levels of cannabis impairment and intoxication,” the authors of the submission made clear.

Not impaired, but charged

“In our view,” the Society continued, “the higher penalties for committing a drug driving offence may be justifiable in circumstances where a person is impaired and/or intoxicated due to consuming a ‘hard drug’… but not when a person drives with a low-level of cannabis in their body.”

There have been cases in the past where people have gone before the courts under extraordinarily suspect circumstances. A senior ACT public servant tested positive for THC after being pulled over on her motorbike back in 2013.

The woman risked losing her job and the strict national security clearance that came with it. She was eventually given a non-conviction order after spending nine months in court claiming the low levels of THC in her system resulted from some muesli she’d been eating that contained hemp seeds.

And then there was the 2016 NSW Joseph Carrall case. Lismore magistrate David Heilpern found that Carrall was not guilty of drug driving after he’d tested positive for THC in a roadside test, as the man hadn’t smoked any cannabis for nine days prior to testing on the advice of a police officer.

Calls from the AFP union

Australian Federal Police Association president Angela Smith told the ABC that the technology the police are using can only give a positive or negative reading. And if the technology “could be developed, drug driving should be treated with low and high range tiers similar to drink driving”.

And there’s good news in this regard, as this technology does exist. The police in Norway are currently utilising it. In that country, authorities have been testing drivers for impairment levels in regard to 20 licit and illicit non-alcohol drugs since February 2012.

This includes the three illicit substances that ACT policing are presently testing local drivers’ saliva for traces of, as well as a range of prescription benzodiazepines that have been shown to be present in the bloodstreams of more drivers who cause crashes in NSW than THC.

So, it seems that it’s high time for police in the ACT, and indeed, right around Australia, to invest in technology that can test for drug impairment levels. This would not only improve road safety, but it would also stop authorities using this backdoor method to punish the public for illegal drug use.

NSW Government Continues its War on Music Festivals

By Ugur Nedim and Zeb Holmes

Despite a spate of drug-related deaths at music festivals in Sydney and other parts of New South Wales, the state government remains staunchly opposed to introducing harm reduction measures such as pill testing which have proven remarkably successful in several European countries – to the point where they are now part of the European Community’s best practice guidelines.

Instead, Premier Berejiklian’s solution appear to be pricing and regulating the events out of existence.

Organisers of the cancelled Psyfari music festival posted on their website that the Berejiklian government has “shown no mercy in wiping these events out in order to make a political point”. The festival was set to celebrate its tenth anniversary this year, but could not meet the additional $200,000 required of them at the last minute for additional ‘user pays policing’ fees.

Police are currently charging $127.80 per hour, per officer to ‘service’ festivals and demanding to have large numbers of officers attend – numbers that are unnecessary in the eyes of many.

The Bohemian Beatfreaks festival was similarly hit with a last minute $200,000 policing bill, after previously being quote $16,000 for the 3,000 person event.

And the Rabbits Eat Lettuce festival was forced to relocate across the border to Queensland after being priced beyond viability.

The Director of Byron Bay’s iconic Bluesfest is also foreshadowing a move out of NSW due to exorbitant compliance costs, potentially ending a 30 year tradition.

Yet another victim

Mountain Sounds is a music festival held annually in the Central Coast of NSW since 2014.

It was scheduled to be held this weekend but had to be cancelled due to the “impossible” restrictions and costs imposed by the state government, including (you guessed it) $200,000 in user pays policing costs levied just a week before the event.

“The combination of excessive costs, additional licensing conditions and the enforcement of a stricter timeline left us no option but to cancel the event,” event management advised.

Organisers had already agreed to downsize their site and cancel more than 20 acts to ensure compliance with newly-imposed safety, licensing and security costs.

The final straw was being advised they would need to pay for the constant presence of 45 police officers, despite being advised on 18 January 2019 that they would only need to pay for 11.

Pay up, or ship out

NSW Greens MLC David Shoebridge has been a vocal critic of the government’s war on music festivals.

“I’ve had a number of festival organisers speak to me about the way in which the NSW police are increasing putting these exorbitant charges on,” he advised. “They’ve described it as effectively a shakedown by the police demanding obscene amounts of money.”

He explained that in recent years, Local Area Commanders have been treating the user pays policing services as a “cash cow”, and that the Berejiklian government’s festival safety review is now being used “as a means of shutting down music festivals they don’t like”.

Government response

Premier Berejiklian has publicly stated that “I don’t think it’s fair for organisers to blame anybody but themselves.”

There are rules in place,” she remarked. “The festival organisers just have to obey the law. It’s not just about making a quick dollar, it’s also about keeping the people who turn up safe.”

The Premier failed to make mention of the unrealistically short notice given to festival organisers.

Interestingly, Berejiklian seemed to change her tune when it came to Bluesfest, saying she was hopeful the rules would not disrupt the iconic event.

“That festival has been going for 29 years, it’s a fantastic festival, it’s low risk so they don’t have anything to worry about,” she remarked. “I don’t want anyone who’s holding a festival for a long time to be worried, this is not aimed at you.”

Police response

Predictably, NSW Police Minister Troy Grant put the blame for cancellations squarely on festival organisers, calling their logistics “inadequate and incomplete.” This is despite the fact many of the festivals ran perfectly well for many years prior.

Mr Grant went so far as to claim organisers of Mountain Sounds failed to respond to police requests for information. Event management has strenuously denied the claim, stating “Mountain Sounds has never in its six years of operating not responded to the police,” they said.

Those who disagree with the way festivals are being treated point out that part of government’s role is to promote social and cultural events, and that the unrealistic costs and demands placed upon festival organisers are contributing to the state’s regression into the nation’s social wasteland.

Warnings Over Potentially Deadly Party Drug

By Sonia Hickey and Ugur Nedim

With the festival season in full swing, several reports have emerged about a rise in the use of the party drug ‘monkey dust’ or MDPV, the scientific name for which is 3,4-methylenedioxypyrovalerone, or MDPV.

Monkey dust is reported to have similar effects to stimulants such as ‘ecstacy’ or MDMA, but there are concerns that a ‘hit’, which can cost as little as ten dollars, can have severe adverse effects.

Bath salts by another name

Monkey dust is not new. It is derived from a South African plant called Khat, which can be chewed like a gum and thereby absorbed through the mouth.

It is what’s known as a synthetic cathinone, which is commonly known as concentrated bath salts.

MDVP was developed by pharmaceutical firm Boehringer Ingelheim in the mid-1960s as a central nervous system stimulant. But the drug’s development never got far enough for it to be tested on humans.

It first appeared in internet drug forum discussions around 2005, and its use became increasingly prevalent in the United States, Europe and elsewhere, where it has caused heart attacks, episodes of psychosis and violent behaviour.

While users report euphoria, feelings of empathy (although less than MDMA), increased sociability, mental and physical stimulation, and sexual arousal, the side-effects can include anxiety and paranoia, delusions, muscle spasms, and an elevated heart rate.

In extreme cases, the drug has been linked to rhabdomyolysis – a process whereby the body’s internal organs overheat and shut down.

It has also been linked to brain injury and death. However, the more serious side-effects are likely to result from high doses.

Monkey dust is illegal in Australia

MDPV has been illegal in Australia since 2010, around the same time in many other jurisdictions including the United States, Canada, and much of Europe.

A year after its ban, the National Institute on Drug Abuse (NIDA) reported that it has been responsible for thousands of visits to emergency room in the United States. In 2011 alone, there were 22,904 reports of MDPV use during emergency room visits. About two thirds of those visits involved combinations with other drugs.

In addition, poison centres took more than 6,000 calls about exposures to the drug in 2011.

The numbers had declined significantly by 2016, with NIDA reporting 266 reported exposures in the first half of the year.

In its pure form, MDVP is a white crystalline powder, but it can be any shade from off-white to pale brown. It is usually sold as a powder, powder-filled capsules or tablets.

MDVP tends to arrive in Australia from China, where it is legal to produce. It is most commonly used as a filler in ecstasy pills, but it can be ingested on its own – snorted, smoked, taken orally or injected.

Young people are being warned that while the drug might produce a ‘nice high’, it can have serious effects.

Pill testing technology can identify monkey dust

The good news is that MDVP can be identified through mass spectrometry or infrared spectroscopy, which is used in pill testing.

As the pill testing debate rages on, the fact remains that testing substances has the potential to save lives by advising users of the contents of their drugs and allowing them to make an informed decision about whether or not to take them and, if so, how much to take.

And importantly, pill testing tents create a valuable opportunity for health professionals to talk to drug users and better educate them about what they’re putting into their bodies, and even guide them to support services.

So far this season, five young people have died from drug-related causes at Music festivals across the country.

It’s important to remember under all circumstances that possessing, selling and using illegal drugs are criminal offences, with penalties that include prison time.

One night of fun can significantly impact on a person’s future, whether through apprehension and prosecution or by the effects of taking unknown substances.

So stay safe, look after your mates and have a great festival season.

Pressure is Mounting for Pill Testing

By Sonia Hickey and Ugur Nedim

Summertime in Australia is synonymous with music festivals.

Tragically, it has also become synonymous with preventable deaths at outdoor music events.

Following the deaths at Defqon.1 and Knockout Games of Destiny Festivals in Sydney two more young men have died and several others are in hospital when festival-goers in Coffs Harbour took an ‘unknown substance’.

A Melbourne man has also died after ‘loading up’ on drugs prior to entering an event, hoping to avoid detection by police.

As the drugs being taken are unregulated, the quality and strength can vary enormously, and suppliers will often fill them with potentially deadly ingredients – which cannot be detected without testing.

Pill testing saves lives

Pill testing that is conveniently located inside music festivals proven to drastically reduce or even eliminate deaths from overdoses in European countries.

It first emerged in the early 1990s in the Netherlands – where it is now part of national drug policy – and services are routinely available in Switzerland, Austria, Germany, Spain, Portugal and France.

Since it was introduced in Portugal, for example, there have been zero deaths from overdoses. Like other countries, Portugal allows risk-management services to attend major festivals to provide advice about drug use through psychologists, mental health assistants and medics, as well as pill screening services.

And research from Austria  has found that half of the people who use the drug testing service said the results influenced their drug use behaviour. Two-thirds decided not to consume drugs that were shown to have impurities, those who said they took them anyway consumed less, and an overwhelming number said they would warn friends over a drug batch that generated negative results.

Research from New York published just last month showed similar positive results from a campaign of ecstasy testing.

Pill testing works by analysing a small sample of the pill. Results are generally available within half an hour and those working from the tent can provide invaluable advice and guidance to young users.

Pamphlets are often also provided, with advice about seeking help and support for drug use and underlying issues.

Pressure is mounting on Politicians

Despite the proven benefits, NSW Premier Gladys Berejiklian continues to reject calls for pill testing, making it clear any advice from experts will do nothing to change her stance.

But immense pressure from experts and community groups has some mainstream politicians entertaining the possibility of introducing the life-saving measure.

The New South Wales Labor Party has committed to a ‘drug summit’ if elected in March. Although falling short of saying it will introduce pill testing, the party says it is open to understanding how it could actually work.

In Queensland, the State government has also announced it is open to considering pill testing, partly based on the positive results of a trial at the Groovin’ the Moo music festival in Canberra last year.

Queensland’s opposition party has also announced it would be open to the policy if there was conclusive evidence pill testing would save lives.

Meanwhile, the Greens Party has long been in favour of pill testing.

Even former Australian Federal Police Commissioner Mick Palmer has spoken out, saying “enough is enough” and that clearly the ‘Just Say No’ campaign is not working.

“In responding to tragedy we must sometimes face hard truths. Decades of a punitive approach where we arrest young people has not worked. It is time to take practical steps to make parties safer for our kids,” he told Sydney Criminal Lawyers in a recent interview.

And now, outspoken Anglican priest Rod Bower has weighed into the debate, recently tweeting a photograph of the billboard outside his Gosford church which reads: ‘Just test the damn pills’ (pictured).

Open letter to NSW Government

But it’s also clear that the community is tired of politicians treating young people’s lives as an election platform.

The national campaign for drug reform, Take Control, has written an open letter to the Government which is now circulating online urging a reconsideration of the issue. The letter is currently doing the rounds on social media, attracting thousands of signatures in support.

Indeed, research from the Australian National Council on Drugs (ANCD) suggests that the overwhelming majority of young people are in favour of pill testing.

The controversy remains

But despite the research, pill testing remains controversial for many reasons – mostly due to the old conservative line that it encourages the use of illegal substances.

And some have pointed out that the measure is not completely ‘fail-proof’, because it is not able to identify all substances and cannot force people not to take their drugs.

There are also human factors at play – people can react differently when it comes to ingesting substances.

But the results of Australia’s first pill testing trial at the Groovin’ the Moo Festival in Canberra last year proved the merits of pill testing locally.

Of the 128 festivalgoers who had their drugs tested, five people tossed theirs into the amnesty bins provided, thinking it was best not to take the chance on consuming them, after they’d received the test results provided by the medical staff onsite.

Drugs belonging to two revellers were actually found to contain N-Ethylpentylone, an often lethal stimulant responsible for mass overdoses in Europe. So, the pill testing service potentially saved these individuals’ lives.

And for many Australians, this type of evidence together with the success of pill testing in other countries is enough to work towards minimising the harm here.

Legalising Cannabis Does Not Lead to a Rise in Crime

By Zeb Holmes and Ugur Nedim

An extensive study conducted in the United States suggests that legalising cannabis has not led to a rise in either property crime or violent crime.

The research adds further credibility to calls for cannabis legalisation in Australia, helping debunk the conservative myth that cannabis use leads to criminality.

Imprisoning the indigent

The US currently imprisons nearly 2.3 million people, which is the largest prison population on earth.

A significant portion are behind bars for low level offending, including repeated low level drug offences such as drug possession.

The nation disproportionately imprisons the poorest and most vulnerable, including African and Latino Americans, and mandatory sentencing policies such as ‘three strikes’ laws ensure low level felonies lead to lengthy prison sentences, even life imprisonment.

The study

The recent study, published in the Journal of Economic Behaviour and Organization, used crime rate data from 1988 to 2013 from states which initially decriminalised medicinal cannabis, many of whom proceeded to legalise the use and possession of the drug.

Researchers compared that data with year-by-year averages from states which did not legalise the plant, finding no discernible difference.

The Californian experience

California was the first jurisdiction in the United States to legalise medicinal cannabis in 1996, with 30 states and the District of Columbia later following in its footsteps.

Over the period of the study, violent and property crime rates have dropped by 20%.

It is important to note that, as is the case in NSW, these types of crimes have been falling throughout the US for over 30 years – and it is certainly not suggested that legalisation is a primary reason behind the reduction.

However, it should also be noted that crime rates in California have fallen at a faster rate than states that did not legalise the medicinal or recreation use of the plant, and that research has found that legalisation has now all-but destroyed the black market for the drug in the state, crushing a number of Mexican drug cartels and even leading some go out of business – with their violent crimes going with them.

The law on drug possession in New South Wales

Drug possession remains a crime in our state.

The maximum penalty for possession a prohibited drug, such as cannabis, is two years in prison and/or a fine of $2,200.

For a person to be found guilty, the prosecution needs to prove beyond reasonable doubt that he or she:

  • Had physical possession or control of a prohibited drug,
  • Knew or reasonably believed it was there, and
  • Knew or reasonably believed the substance was a prohibited drug.

If a person pleads guilty or is found guilty of cannabis possession, the magistrate can exercise his or her discretion not to impose a criminal conviction (criminal record) but, instead, dismiss the charge under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or place the person on a Conditional Release Order without conviction for up to two years.

Cannabis cautioning scheme

Since the year 2000, NSW has had a cannabis cautioning scheme which allows police officers to exercise their discretion in certain situations not to send people to court for possessing cannabis.

Police can only issue a cannabis caution to adults who have not previously been convicted of a drug offence, a sexual offence or an offence of violence.

A caution is only available for possessing under 15 grams of cannabis, and only two cautions can be administered upon any person.

Medicinal cannabis in New South Wales

Although laws have been passed in our state to legalise medicinal cannabis, it has proven to be far more difficult to access than in places like California, not to mention much more expensive.

In NSW, both the cannabis prescriber and product itself are required to go through the arduous process of registration and licensing.

It is legal for those suffering certain medical conditions to access medicinal cannabis under clinical trials or the Special Access and Authorised Prescriber Schemes administered by the Therapeutic Goods Administration (TPA).

As of October 2018, the TPA has approved the following medical conditions:

  • chemotherapy-induced nausea and vomiting
  • refractory pediatric epilepsy
  • palliative care indications
  • cancer pain
  • neuropathic pain
  • spasticity from neurological conditions
  • anorexia and wasting associated with chronic illness (such as cancer).

Just legalise it

Neither of the major political parties, whether on a state or federal level, support the broader legalisation of cannabis.

The Greens is the only party with seats in federal parliament to have announced a policy to legalise the use and possession of the plant across Australia.

The plan is to make cannabis available through an “Australian Cannabis Agency”, which would have the sole responsibility for distributing the product.

The new Agency would issue licendes for production and sale, as well as monitor retailers.

It would also be responsible for collecting a tobacco-style tax from consumers, which would then be used for education and treatment programs.

Federal Health Minister Greg Hunt has criticised the, asserting the (widely disproven) claim that cannabis is a “gateway drug” to other “harder drugs”.

“We do not believe it is safe, responsible or something which should be allowed”, Mr Hunt stated.

Meanwhile, Opposition Leader Bill Shorten has accused the Greens of generating “political clickbait”, making clear he does not support broader legalisation.

Bumper Summer for Music Festivals, but Still No Pill-Testing in NSW

The summer season of music festivals about to start across NSW, and the state continues to attract big name acts and high profile events like the Rolling Loud Hip Hop Festival, which is expected to bring thousands of fans to Sydney early next year.

In the meantime, despite acknowledging that music festivals are a strong part of Australian culture, and benefitting from their money-making potential, the State Government continues to beef up police numbers and resources including sniffer dogs to stop drug use. And there is still no sign of pill testing.

Instead, two months ago, the NSW State Government announced a range of new initiatives for combatting drug use at music festivals including on-the-spot fines of up to $500 for drug possession and tougher penalties for dealers who supply drugs to people who die.

At this point the Government says it us working through other issues with the legislation such as the penalties for someone who gives drugs to a friend.

‘Throwing the book’ at dealers won’t help

Many pill-testing advocates are angry that the plan simply ‘throws the book’ at dealers and does nothing address the idea of reducing risk and minimising harm for those people who will take drugs.

This is because when the Government had an opportunity to listen to pill-testing experts it didn’t do so.

After the deaths of two people at Defqon1late last year, the New South Wales Government went into ‘damage control’ and assembled a panel of experts briefed with the task of making music festivals ‘safer’. At the time, many hoped that it heralded a change in mood by the state politicians, but Premier Gladys Berejiklian swiftly made it clear that the panel would not be considering the merits of pill testing because the Government didn’t support it.

In recent weeks NSW Police Commissioner Mick Fuller has further inflamed the situation by saying that the belief that pill-testing was going to save lives is a ‘myth’.

But in fact, results from Australia’s first sanctioned pill-testing trial at the Groovin the Moo Festival in Canberra earlier this year proved that not only could free pill testing services actually be provided without encouraging more people to take illicit substances, but it prompted some to throw their drugs away.

Of the 128 festivalgoers who had their drugs tested on the spot by laboratory-grade equipment, five people tossed theirs into the amnesty bins provided after receiving the test results provided by the medical staff onsite.

Pill-testing can save lives

Drugs belonging to two revellers were found to contain N-Ethylpentylone, an often lethal stimulant, responsible for mass overdoses in Europe potentially saving these two individuals lives.

Pill testing has been available in several European countries including the Netherlands, Switzerland, Austria, Belgium, Germany, Spain and France for some time, and was more recently introduced in the UK. And the results show that not only does pill-testing have the ability to save lives, it has positive effect that goes beyond saving lives.

Outcomes of pill testing over seas

The experience in some parts of Europe has been that over time, pill-testing has actually changed the black market in positive ways – potentially lethal ingredients which were the subject of warning campaigns were seen to leave the market.

Specific research from Austria shows that 50% of people who had their drugs tested said the results affected their consumption choices. Two-thirds said they wouldn’t consume the drug and would warn friends in cases where there were negative results.

In the UK, two-thirds of users consulted by not-for-profit testing service The Loop said they would not take drugs found to contain harmful substances. More than half said test results had affected their consumption choices and many said they intended to dispose of their drugs or take less of them.

Another less measurable benefit is that pill-testing booths provide an opportunity to reach an otherwise unreachable, but high-risk group of recreational drug users and provide both communication and education about their lifestyle choices as well as information about drug support services. According to testers and healthcare professionals, pill testing not only gave users a chance to know what they’re really taking but also to engage with health professionals about their drug use outside of a very formal medical setting.

In Europe, pill testing has also facilitated the capturing of long-term data about the substances in drugs as well as drug use.

Meanwhile in NSW, the Government is still doing what it has always done in response to this issue – throw more resources and tougher problems – an approach that has so far, had little effect on solving the problem.

When will the Government listen?

Of course, harm minimisation programmes like pill-testing are not a panacea by any means. They are highly controversial, mostly because people think that they will encourage more drug takers or remove the stigma’ that’s associated with taking illegal substances, and that by agreeing to pill testing is turning a ‘blind eye’ to those who break the law.

But in NSW, the traditional ‘zero tolerance’ approach is not working, and many believe that we will continue to have, more tragic and unnecessary deaths from drug taking at music festivals unless we try a new approach.

Experts are frustrated that despite all the proven benefits of pill-testing, the NSW Government flatly refuses to even trial it. And the community is getting weary too – many young Australians

are highly supportive of pill testing; a finding consistent with young people’s overall views about drugs: they want better information in order to make informed choices.

Defies Logic: Premier Will Intensify the War Against Drugs to Make People Safer

By Paul Gregoire and Ugur Nedim

Following the tragic drug-related deaths of two young people at the Defqon.1 festival in September, NSW premier Gladys Berejiklian tasked an expert panel with investigating how to improve safety at events like music festivals.

And in true Coalition style, Ms Berejiklian announced last week that her government had accepted in-principle the recommendations made by the panel in its report, which means she’s going to double down on failing drug war tactics.

The premier explained that in order to create a safer environment for young people at festivals, the government will be creating a new offence that will make dealers responsible for the deaths of people who buy drugs from them and subsequently die.

As well, to “ensure that offenders face swift and certain justice”, the government will be trialling on-the-spot fines of up to $500 for festivalgoers found in possession of illegal drugs.

Although the initial reaction to the announcement was disbelief, it’s hardly too surprising. The expert panel was comprised of NSW police commissioner Mick Fuller, NSW chief health officer Dr Kerry Chant and Independent Liquor and Gaming Authority chair Philip Crawford.

And what’s more, the panel made clear in their report that Berejiklian had told them prior to their investigation that her government “has no tolerance for illegal drugs and pill testing is not within the terms of reference”.

Counterproductive policing

President of the Australian Drug Law Reform Foundation Dr Alex Wodak stressed that increased policing won’t achieve its stated aims. He outlined that “senior and experienced police” have been asserting that “saturation policing doesn’t have a significant effect on drug availability”.

The doctor said that initially this admission came from retired police, including commissioners. But, these days, serving officers are beginning to admit saturation policing doesn’t work. “The political elite have also known this for at least a decade or two,” he added.

Indeed, there’s a growing number of former high-level police officers calling for a different approach to be taken to illicit substances than the one the NSW premier advocates for. The list includes former AFP commissioner Mick Palmer and ex-NSW police commissioner Ken Moroney.

And Dr Wodak further pointed out that “the two deaths that sparked this reaction occurred when saturation policing – plus sniffer dogs – had already been provided”. There was a huge police presence at the Defqon.1 festival in September, with 180 police officers deployed at the event.

Increased penalties = increased profits

The expert panel’s seventh recommendation was that a new offence of drug supply causing death be introduced. The premier said she believes the maximum penalty for this crime should be set between 10 years, and the 25 years for manslaughter.

But, Dr Wodak warns that this proposed law is likely to make selling drugs more profitable. “Dealers will raise their prices to compensate for the increased risk,” he explained. “If drug prices rise, so will profits.”

And in his estimate, once the profits increase, then they’ll be more “wannabe drug dealers” lining up as “the higher profits justify the increased risk”. And as more drug dealers appear on the scene, the obvious result would be that more drugs are sold.

“The drug market is the Achilles heel of drug prohibition,” Dr Wodak added. “That’s why political conservatives were so prominent in early support for drug law reform.”

Increasing the harms at festivals

The use of highly-ineffective drug detection dogs at music festivals has long been criticised, as their presence actually leads festivalgoers to partake in dangerous drug taking practices.

These include preloading, which is when an individual takes all of their drugs prior to an event to avoid being found in possession of them. And another detrimental effect is panic overdosing, which is when a person consumes all of their drugs at once on seeing a sniffer dog operation.

There’s been at least two recorded incidents panic overdosing in NSW, one of which was the death of James Munro at the Defqon.1 festival in 2013.

Now, if some young people attending a festival are aware that there will be police officers making the rounds of the event issuing $500 fines for drug possession, it might seem like a good idea to take all of their drugs before arrival, which, of course, could lead to overdose.

And it also seems very likely that the immediacy of an on-the-spot fine could further compel an individual who’s holding drugs at a festival and spots a drug dog to take an amount of drugs at once that could prove fatal so as to avoid the penalty.

An evidence-based approach

“Drug law enforcement has a poor record. It’s usually ineffective, often counterproductive and always expensive. In contrast, harm reduction is just the opposite,” Dr Wodak continued. “So, pill testing has a much better chance of saving lives and money.”

These days, the majority of Australians support the roll out of pill testing services at music festivals. These setups allow festivalgoers to have their drugs tested by laboratory-grade equipment and then make an informed decision about whether to take them.

The first government-sanctioned Australian pill testing trial took place at Canberra’s Groovin the Moo festival in April this year. The drugs of two individuals who used the service were found to contain a substance that can prove lethal, meaning the service potentially saved both their lives.

European nations have been employing this life-saving method for decades now. In countries like the Netherlands, Switzerland and Spain individuals can have their drugs checked at events or at permanent sites. In fact, the European Union has produced pill testing best practice guidelines.

So, many were dumbfounded when the state’s top cop Mick Fuller got on the microphone last week and stated that pill testing was a “myth” and there was “no science behind” it.

The broken law enforcement approach

Dr Wodak said that Ms Berejiklian antics were reminiscent of the famous nursery rhyme, where extra resources were thrown at something that cannot be fixed. “The Premier will now double the King’s horses and double the King’s men to see whether she can put Humpty Dumpty together again.”

“This isn’t a policy,” the doctor went on. “It’s a political strategy.” And he questioned whether it was her lack of support in the Coalition or her imminent defeat in the next election that was leading her to conduct this “drug policy grandstanding”.

“Whatever the reason is it’s hard to believe she really expects this is going to make any difference to protecting young people,” Dr Wodak concluded.

Canada Legalises Cannabis, But There’s Not Enough to Go Around

By Sonia Hickey and Ugur Nedim

Less than a week after Canada legalised recreational cannabis, the country is running out of weed.

Licensed dispensaries are struggling to keep up with demand, with some forced to post “out of stock” signs and close shop.

Canada is only second country in the world behind Uruguay to legalise (rather than just decriminalise) the use and possession of cannabis, and the world has been watching with interest as legislators rework laws, as the economy gets a boost, the black market shrinks and the government begins to reap the financial benefits of new types of taxes on private suppliers, taxes on purchases, general income tax from private cannabis-related businesses and income from state-owned businesses.

New laws

Canadians over the age 18 or 19 (depending on the province) are now allowed to possess up to 30 grams of cannabis, while households can grow up to four plants.

Canadians can also purchase the drug and related products at dispensaries, and order them through websites or shops. Some suppliers are state-owned while others are owned privately. Anyone caught selling the drug to minors will face up to 14 years in prison.

The new laws also effectively pardon those with convictions for possessing less than 30 grams of the drug.

Despite cannabis being legalised on 17 October, it’s understood that some customers began pre-ordering supply as early as September.

Statistics suggest that 5.4 million Canadians will buy cannabis from licensed dispensaries this year – which is about 15 per cent of the population.

Demand exceeds supply

A study released earlier this year by the University of Waterloo and the CD Howe Institute foresaw a supply shortage, predicting licensed producers would only be able to meet about 60 per cent of demand in the first year of legalisation.

Many who’ve missed out are angry, and growers have been unable to say exactly when they will be able to meet the demand. There are now concerns about what will happen over the coming months, as only 111 stores of a planned 250 opened their doors in time, and many of those that opened have now had to shut down due to a shortage in product. The remaining stores are set to launch by 2019, provided there is enough stock.

The Canadian cannabis market is estimated to be worth around $4.2 billion a year, and the government projects collecting nearly $300 million in taxes as a direct result of legalisation.

The government also expects to make hundreds of millions of dollars through saving money that would otherwise be spent on enforcing laws and putting offenders for small possession and limited cultivation through the judicial process.

But, the government has always maintained that one of the major reasons for introducing reform has been to bring black market operators into a regulated system, and to prevent younger people from accessing cannabis.

Implementing legalisation

Medicinal cannabis has been legal in Canada since 2001, with the Trudeau government spending the last two years working towards legalisation for all purposes. This required amended existing laws, enacting new ones, setting up a licencing scheme and formulating guidelines for distribution and sale.

Licensees are subject to strict advertising rules, similar to those relating to tobacco, and the plant can only be sold in plain packaging of a single, specified colour.

Other countries

Uruguay became the first country to legalise cannabis use and possession in 2013. In the United States, nine states and the District of Columbia have legalised the plant.

But despite moves in Australia to make medicinal marijuana legal, there are no plans by the major parties to legalise the plant for recreational use – as jurisdictions continue to criminalise the possession, cultivation and sale of cannabis.

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.”

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.