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After the tragic deaths of several young music festival attendees, the debate about the pros and cons of pill testing has taken Parliament (and the internet) by storm. NSW Premier Gladys Berejiklian refused to consider the idea, and announced instead the appointment of a panel to advise on ways to curtail drug use at music festivals. NSW Labour leader Michael Daley, on the other hand, has said his party is open to the idea. Petitions and proposals abound. But what do we actually know, and what are the legal issues surrounding pill testing at music festivals?

For testing

The most compelling argument for pill testing is that it may save lives. Secondarily, it may provide a way of producing changes in behaviour and attitudes that are resistant to other, more punitive approaches.

Evidence suggests that illicit drug use is not at all unusual among the demographic likely to attend these events. Data published by the Australian Institute of Health and Welfare in 2010 indicates that more than 11 percent of 20- to 29-year-olds and 7 percent of 18- to 19-year-olds had taken ecstasy or other recreational drugs in the previous 12 months. Seventy percent of ecstasy consumption occurs at clubs, festivals and dance parties.

Adulterated drugs clearly do make their way into the festivals, as the recent deaths suggest. One recent purchaser who believed he had purchased meth reported finding that it contained a lethal stimulant drug n-ethylpentalone. Even one less death is a major victory.

Further, testing or the availability of testing seems to produce caution – always a good development when it comes to illicit drug consumption. An Austrian survey found that 50 percent of those who had their drugs tested said the testing results affected their consumption choices. Two-thirds said they would not consume a drug that tested badly and would warn friends about negative results. The availability of testing may also create an opportunity for medical professionals to reach out to and educate otherwise hard- to-reach individuals about the risks of recreational drug use.

Against testing

The other fundamental theory at issue is abstinence. As NSW Police Force Acting Superintendent Rod Peet put it recently, “You can talk about alternatives and testing and things like that. The best message I can give you is don’t take illicit drugs.” The best way to avoid a deadly or life-threatening experience is to refrain from using party drugs altogether, according to this view. The fear is that pill testing, although it may reduce harm in the short run, would increase it in the long run by creating a false expectation of safety.

Current law deals with illicit drug use by punishing it, and the government panel’s current recommendations would double down on that approach. Among the government’s proposals are changes in law that would:

  • Impose sentences of up to 25 years in jail for drug dealers held responsible for any deaths they cause at music festivals; and
  • Assess on-spot fines of between $400 and $500.

Legal issues

Thoughtful commentators have raised other issues as well. Festival goers who seek pill testing might open themselves up to legal prosecution for illegal possession.

In addition, what sort of legal liability might testing organisations face if they test a drug and incorrectly pronounce it safe for consumption?  Might they then face civil liability as guarantors of the drug’s safety? How could they not given that it is unlikely that the festival goer presenting the drug for testing has a prescription from medical practitioner indicating that it is a suitable drug for the individual personally.

Could they face criminal liability as if they, too, had participated in illegal drug dealing? Presumably proponents of drug testing anticipate testing organisations will have immunity through legislation. However, what will parents of a deceased young person say of an immunity enjoyed by a party whose hands last touched a toxic product that killed their child.

Presumably testing organisations would seek some sort of liability waiver from individuals requesting pill testing. But would the waiver be valid if the individual were found to be intoxicated because of prior drug consumption? What if the individual is a minor and cannot legally give consent/sign a waiver?

The parties to defend a claim or claims arising from poisoning incidents through drug use at a festival after testing has taken place could include the festival organiser, any subcontracted testing organisation, the police as complicit in the carrying out of the testing and obviously the supplier of the drug. The last of these parties is rarely identified and almost never a party to civil proceedings.

The other parties are currently not implicated given that drug use at festivals is explicitly illegal. Once testing becomes mainstream then these parties will come on risk and will need to insure against that risk. That will be an extra cost to those parties and in one form or another borne by taxpayers or consumers.

The range of issues raised by pill testing at music festivals is not completely addressed by either the “just say no” approach of law enforcement or the “test and educate” approach of proponents of pill testing.

The attorneys at Owen Hodge Lawyers would be happy to help shed more light on the issue of pill testing and related matters of drug safety, drug laws and enforcement issues. Please call us to schedule a consultation at your earliest convenience at 1800 770 780.