I have been asked to write about calls for pill testing at music festivals. A google search revealed a raft of stories on the subject – these from just the first page of results:
- Alison Ritter ‘Six reasons Australia should pilot ‘pill testing’ party drugs’ Drug Policy Australia (Online) (December 20, 2018);
- Olivia Willis ‘Six claims about pill testing — and whether or not they’re true’ ABC Health (Online) (January 15, 2019);
- Yan Zhuang ‘What is pill testing?’ Sydney Morning Herald (online) (January 2, 2019);
- Natalie Wolfe ‘Parents’ plea after daughter’s tragic drug death at FOMO festival in Sydney’ com.au (January 16, 2019);
- ‘Why pill testing has never been trialled in Australia’ (by Deakin University) (undated); and
- Andrew Scholefield ‘Will Pill Testing Prevent Drug Deaths?’ Encounter Youth (undated).
In a blog about emergency law it’s not my place to rehearse the arguments for or against pill testing; that is done in the articles above and no doubt many, many more that can be found online and in print. I will consider the issue from a legal and emergency management policy perspective.
EM Policy
From a policy perspective pill testing would be consistent in my view with the concept of resilience put forward in the National Strategy for Disaster Resilience (2011). One death by drug overdose is not a ‘disaster’ from the perspective of the state but it is a disaster for the family of the deceased. The National Strategy wants individuals and communities to own and understand their risks. It’s talking about natural hazards – floods, fires etc – but the principle remains the same. The National Strategy says that:
Governments, at all levels, have a significant role in strengthening the nation’s resilience to disasters by…
- having effective arrangements in place to inform people about how to assess risks and reduce their exposure and vulnerability to hazards;
- having clear and effective education systems so people understand what options are available and what the best course of action is in responding to a hazard as it approaches;
I appreciate that it’s drawing a long bow to link pill testing to disaster resilience, but I do suggest that the principles are the same. Resilience is not enhanced by telling people ‘don’t live here’ or even ‘don’t enter flood waters’. Telling people what to do is not effective, having them understand risks so that they may make an informed choice to act or not act is more likely to lead to resilient decision making. Pill testing may mean that people who are looking for information get better informed about the risks. Telling people about the risk of a drug is only part of the issue. They may decide to accept whatever risks are said to come from ecstasy, or heroin or ice or whatever but informing them of the other poisons that are in the pills may make them change their mind. Further, as noted in the articles above, the way pill testing has been done or proposed it comes with opportunities to engage with those that may be thinking of taking drugs to improve understanding of the risks.
If it is believed that informing people of risks will lead to better risk management behaviour, then this is an example of that sort of campaign. We know that catch phrases like ‘if it’s flooded; forget it’ (or ‘just say no to drugs’) don’t affect behaviour as might be hoped. The message has to be contextualised and made relevant to the people who may make decisions (see for example the Queensland Government campaign and by Sue Daniel and Siobhan Fogarty ‘Car experiment shows extent of flood danger’ ABC News (Online) (18 June 2016)). If that’s true for floods, then pill testing (as well as other approaches) may be a way to bring home the real risk that potential drug users face.
My first point is, therefore, that taking steps to give people information about the actual risk involved in their decisions is consistent with the larger risk management approach that Australia has adopted with respect to other risks. And whilst drawing the link with the National Strategy for Disaster Resilience may be tenuous, I do that, given the audience of this blog, to show that the approach is not inconsistent with the approach to risks that we are familiar with.
The law
A major difference is that driving into flood waters or living in a fire prone area is not illegal, taking drugs is. In New South Wales it is an offence to supply, possesses or self-administer a prohibited drug (Drug Misuse and Trafficking Act 1985 (NSW) ss 10, 12-14, 25 etc). (I use NSW as my exemplar jurisdiction as that is where the debate appears to be taking place given the resistance by Premier Gladys Berejiklian to the use of pill testing. I also assume that the drugs people are seeking to take are prohibited).
Police may stop and search a person where they have reasonable grounds to believe they are committing an offence or ‘has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug’ (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 21). If there is a facility for pill testing, police may well form the view that they suspect anyone who is going into that room is in possession of a prohibited drug and they can therefore search them and if they find drugs arrest and charge them. There suspicion would be even more well founded if they waited until after the drugs had been tested – if the test reveals that what the person brought has no drugs in it then there is no offence, but if the test confirms the presence of prohibited drugs that would be further evidence to justify a search and arrest.
It follows that if there is to be pill testing and if it is to work, there would have to be agreement with local police that they would not stop and search those going into and out of the premises. Whilst I cannot locate a public record of the talk, there was a very interesting presentation at the St John Ambulance Australia 2018 National Convention in Canberra where a representative of the Australian Federal Police discussed the negotiation and process that was required to allow pill testing to proceed at the 2017 Spilt Milk Festival (see Ange McCormack ‘ACT Government approves free pill testing at Spilt Milk festival’ triple J Hack (September 22, 2017)).
There are offences of aiding and abetting drug taking. For example, s 19 of the Drug Misuse and Trafficking Act 1985 (NSW) says:
A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the firstmentioned offence.
Drug testers would not be guilty of this offence. To be guilty of an offence such as this the defendant has to actually intend or desire to assist the principle offender to commit the offence. A drug tester may not want the person to take drugs and, given the explanations of how pill testing has been used, may actively counsel the person against taking the drugs.
Further pill testing is about testing the pills to determine what is in them. It is not, or need not be, about testing to confirm the purity of the drugs, rather it’s testing to determine the impurities in the pill. It’s not encouraging people to take drugs but discouraging them from taking whatever is in the pill that may kill or harm them.
There have been suggestions of legal liability (see again Ange McCormack ‘ACT Government approves free pill testing at Spilt Milk festival’ triple J Hack (September 22, 2017)). That article asks:
What happens if you have your drugs tested, get a concerning result, but decide to take them anyway? Could Harm Reduction Australia or the other groups on site be liable for what happened to you?
Gino Vumbaca says the consortium has received legal advice on this issue, and that it isn’t a “black and white” scenario.
“Our understanding is we wouldn’t be [liable],” Gino says.
There is no duty to protect people from harm that they intend to cause themselves (Stuart v Kirkland-Veenstra [2009] HCA 15) nor is there authority to stop people taking risks that they chose to take but someone else thinks is unwise (see PBU & NJE v Mental Health Tribunal [2018] VSC 564 discussed in the post Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018).
Providing the pill testing took place in the way described in the various articles above, with no assertion that a pill that even if it contains no contaminants is therefore ‘safe’ to take, then there could be no liability. The position could be confirmed with appropriate disclaimers – Civil Liability Act 2002 (NSW) ss 5L and 5N).
Discussion
I do not attempt to persuade anyone on whether pill tasting should or should not take place. Nor do I enter into the argument of whether or not the possession of drugs for personal use or the self-administration of those drugs should or should not be illegal. As the law currently stands it is illegal to possess, supply or administer prohibited drugs.
What follows is there are legal issues with respect to pill testing. Those are that having pill testing facilities is setting up an area where people who attend are flagging to police that they may be committing an offence and that could allow police to stop and search people. If that happened the benefit of pill testing would be lost.
Other identified legal issues are potential liability for pill testers for aiding in the commission of an offence or some liability if a person takes a drug after pill testing. It would be my view that if the pill testing was conducted in the way described in the earlier articles, there would be no liability for pill testers or event organisers.
In any event if governments wanted pill testing to take place those legal issues could be, and have in the past, been addressed by planning and if necessary, by legislation as has been done, for example, to allow for safe injecting rooms (Drug Misuse and Trafficking Act 1985 (NSW) Part 2A).
Pill testing would seem to be consistent with government approach to other risks in that it would provide information to people to allow them to make more informed choices. Telling people what choices to make is not an effective way to minimise risk taking behaviour; giving information and allow people to understand risk is the current policy approach. Proving people information about the product they are thinking of consuming is consistent with that approach and would be familiar to readers of this blog as an appropriate way to encourage people to mitigate their risks.
Conclusion
The law is not, and should not be, a barrier to pill testing. The issue of whether or not pill testing should be adopted is not a legal issue. If it is to adopted there are legal issues to be addressed but the law is not an insurmountable barrier.
Australian Emergency Law 
I was under the impression that NSW police do have restrictions on the stop and search powers near the safe injecting room in Kings Cross? The relevant legislation around the safe injecting room may provide greater light on that issue. I have heard heroin and other drug dealers were taking advantage of that.
If pill testing were to be legalised there could be similar provisions in legislation restricting the stop and search of people entering and exiting pill testing premises.
Part 2A of the Drugs Misuse and Trafficking Act 1985 (NSW) does not impose restrictions on police stop and search powers. It does say that a person does not commit an offence if they are in possession of or self-administer a small quantity of a prohibited drug, or have drug taking equipment. (What is a small quantity is defined for each drug, it’s not a judgement call for the police). That imposes some limits on police as they have to have a reasonable suspicion that a person has committed an offence before they can stop and search and if there’s no offence, they can’t search. But of course they could stop and search, and charge, a person on their way to a safe drug injecting room.
Sub-section (4) says:
That’s an odd section as I can’t see how anyone would think it did affect that discretion but I suppose spelling it out encourages police to consider whether they should take action in those circumstances, but it does not say that they cannot charge a person ‘travelling to or from, or … in the vicinity of, a licensed injecting centre’.
Sub-section (5) says:
I do not know if the police have issued ‘any guidelines applicable to police discretions’ with respect to action near drug injecting rooms.
There’s no doubt that if pill testing was to occur there would have to be some legislative reform and the licensed injecting room legislation will be a useful starting point. That is what I said when I said:
The ambit of the accessorial liability provisions in the Act aren’t really a live threat to festival organisers with pill-testing and associated medical advice any more than they are at present.
In any event, there is no need for legislative reform — the only thing that needs to change are police attitudes and having festivalgoers sign effective waivers. That’s if the experience of Canberra is anything to go by.
There is however always going to be some residual threat of civil liability, but having pill-testing and less drug-related harm at festivals only mitigates such.