The NSW Government’s New Drugs Policy Might Actually Be A Form of Decriminalisation
As ever, the devil is in the detail.
Yesterday, the NSW Government announced the introduction of laws to directly target drug dealers at music festivals across the state, following the deaths of two attendees at Defqon.1 in September.
Premier Gladys Berejiklian stated that the new offence could see dealers at music festivals slammed with penalities of between “10 and 25 years” in prison, if they supply a drug that causes someone’s death. When asked how police could actually identify which drug dealer supplied the lethal substance, Commissioner Mick Fuller replied that “in most cases people do know the dealers.”
“It’s within our ability to investigate these appropriately through the homicide squad, local detectives, forensic, and other modern methods,” he said.
Fuller also didn’t really have an answer when questioned about what would happen if the lethal substance was given to someone by their friend, and not a known dealer. “We know the dealers, the hard-core dealers, profile very differently to a friend giving a friend a tablet,” he told journalists, adding that they would deal with such situations “very carefully”.
The measures were recommended to the government by a panel comprised of Fuller, health professionals, and the Chair of the Independent Office of Liquor & Gaming, Philip Crawford.
Additionally, the government will be trialling on-the-spot fines for people found to be carrying drugs for personal use. Initially, it was reported (including by Music Junkee) that these on-the-spot fines (reportedly between $400 and $500) constitute a toughening of the existing laws — when in reality it might be the opposite.
By issuing on-the-spot fines, the NSW government is potentially keeping thousands of drug users out of the court system, and helping them to avoid a criminal record.
Will Tregoning, the founder and director of drug harm reduction organisation Unharm, told Music Junkee yesterday that having on-the-spot fines replace court attendance notices is essentially a de facto decriminalisation of drugs at festivals. Which seems like quite a big deal.
“It’s replacing a court process with a fine process,” Tregoning told Music Junkee. “And I would expect that an on-the-spot wouldn’t come with a criminal record. So this is actually a step forward. I don’t support the idea of fining people, but the idea of moving away from court processes — as well as the other things they’re proposing within the report, like referring people to health services — that’s great. So it’s interesting — the NSW Government is essentially advocating the de facto decriminalisation of drug use.”
The proposal within the report references anecdotal evidence of “people hurriedly consuming drugs to avoid detection”, and so the introduction of on-the-spot fines “provides for a harm reduction approach.” See the relevant section of the report below:
“This is very much a PR led strategy,” Tregoning says about the report in general. “This policy was framed with the view of what was going to be the headline on the evening news — and that of course is this new proposed provision about manslaughter, and new offences related to suppliers.
“Former Prime Minister John Howard talked tough on drugs, but also spent over $400 million on a diversion system to get people out of the justice system if they’d committed a possession offence. It’s the same kind of thing going on here. You got this tough rhetoric by the government, but at the same time there’s actually support for what is essentially de facto decriminalisation of drug use.”
Currently in NSW, if you are required to attend court and are found guilty you will receive a criminal record unless you are given a Section 10 (which means no conviction will be recorded.)
For some minor offences (for example, offensive language in a public place) you are not issued a court notice — which means you don’t have to attend court, and no offence will go your criminal record.
Don’t Leap For Joy Just Yet
“There is a degree of ambiguity in that part of the government’s response,” Greens MP David Shoebridge tells Music Junkee in regards to the on-the-spot fines.
“The better approach would be for the police to use their existing powers to issue cautions rather than fines, which would be a far preferable outcome — and further along the path of decriminalisation.”
“What was clear from this report is just how confused the government is on this,” Shoebridge continues. “I think they’ve been chastened by some of the experiences of the last 12 months — there was one festival on the north coast where the police had issued over 120 court attendance notices following just one festival, which saw the local court go into a week long meltdown trying to deal with that caseload.”
Shoebridge flags that the change in policy was most likely driven by practical elements within the NSW Police: “They’ve realised the amount of police time that is wasted by not only having to issue court attendance notices for a small possession, but then also have countless hours of police tied up in courts waiting for matters to be dealt with. So it’s more of a practical response to assist police, rather than an intentional step towards decriminalisation.”
Having fines replace the court process also presents a whole host of problems. As Tregoning explains, one of the first major issues is that police are incentivised to arrest more people.
“You have situations like in South Australia where they’ve decriminalised cannabis possession, but then police have targets of how many people they have to fine,” Tregoning says. “So the amount of police interference in the public actually increases.”
The other issue is that being fined is all well and good if you’re wealthy and can afford to pay — but if you’re not, then things can become very serious. “It’s not uncommon for people to end up in prison for unpaid fines,” says Tregoning. “If people can’t pay the fine and then they accrue to a particular level — the only activity left is to put them in jail.
“I think that’ll be the kind of thing we’ll end up seeing — that there’ll be people committing a possession offence, issued a fine, then unable to pay the fine because they’re quite likely young and not wealthy, and then potentially ending up with a prison sentence. So that remains a serious concern.”
And in terms of the government implenting the fines in order to avoid people “hurriedly consuming drugs”, Shoebridge calls bullshit: “That won’t change that behaviour one bit,” he says. “People will still be panicked by the sight of police and police dogs and we will still see that risk taking behaviour elevated by the presence of police.”
Pill Testing Is Still Very Much Off The Table
The NSW Government remains staunchly against pill testing — in spite the overwhelming success of the recent trial at Groovin The Moo festival in Canberra.
Police Commissioner Mick Fuller went as far as to tell journalists at the press conference yesterday that the idea of the service being able to save lives was a “myth”. Which, just so you know, is not true.
“The premier ruled out drug safety testing before the committee was even formed — and that is one of the most obvious and neccessary things we could do to promote safety at music festivals,” Tregoning says. “The fact that she ruled it out before they even started undermines the credibility of the rest of the report and it goes against its intent — and what are in some cases some good policy proposals.
“It just shows how distorted policy gets when it’s in the context of a lot of media attention and focus on festivals — there’s this compulsion for the premier to appear tough because that’s the perception that the media requires.”
The main obstacle in the government, Tregoning says, is Police Minister Troy Grant. If you’re not familiar, he’s the charming guy who suggested that pill testing advocates could be charged with manslaughter if they went ahead with trials at festivals.
“With Troy Grant in government, there’s no hope,” says Tregoning. “He knew he was opposed to pill testing before he even understood what it was — and that’s just indicative that there’s not going to be much opportunity for progress. There’s no way we can find common ground if he’s not even interested in understanding what he proposes.”
So What’s Going To Happen Now?
Well, we’ll almost certainly see an increase in the number of police at music festivals in NSW — and this could have serious effects on the industry.
“Anecdotally — there has been a requirement to increase the police on site at music festivals. And the concern is that will potentially wreck the way festivals can exist by themselves — because it’s very expensive to have large numbers of police officers on site,” Tregoning explains.
“So that could be one way the government could achieve the objective the premier initially announced, which is to shut down Defqon.1. They could kind of achieve it by stealth by laying these mandatory costs that festivals could find difficult to beat.”
Industry body MusicNSW is also troubled by the potential introduction of new licensing laws, which would see promoters comply with a liquor licence specific to music festivals.
“We feel that adding a new type of licence will only seek to muddy the regulatory waters for festival promoters, councils, police and agencies,” its managing director Emily Collins told The Sydney Morning Herald. They’re also calling for clarifcation around what constitutes a drug supplier — in NSW it’s 0.75 grams of a substance, while in other states it’s three grams.
And by far the most significant — and most troubling — part of the report is the proposed maximum 25-year prison sentence, for those who have found to supply a drug causing death.
“In the context of young people who might be bringing in a small number of pills to a festival, and then giving them to their friends — they could suddenly find themselves in jail for the majority of their adult life,” says Shoebrdige.
But as we noted at the top of this article, Police Commissioner Mick Fuller was completely unable to explain exactly how the police would enforce this policy. “It was a headline, not a police,” Shoebridge notes. “Yesterday’s outcomes were headlines hunting for a policy.”
“Young people could suddenly find themselves in jail for the majority of their adult life.”
So yeah, it’s messy.
“Reading the report you go ‘Oh sensible people can actually come up with sensible plans around safety at music festivals, of course it’s possible!'” Tregoning says. “It was only after I’d read the report in detail that I went ‘Oh hang on, this is actually what we want.'”
“It’s just when things get ruled out for ideological reasons or when the issue gets discussed in this very heated way, then that’s what undermines the potential of actually doing the sensible thing.”
“The biggest takeaway is that the government pretends you can still address safety issues at music festivals through the police,” Shoebridge stresses. “And through severity of offences, and courts and jails. None of that will make festivals safer.”
You can read the full report — titled ‘Keeping People Safe at Music Festivals’ — here.
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Jules LeFevre is the Music Editor of Junkee. Follow her on Twitter.