Following the drug-related deaths of two young Australians at Sydney’s Defqon.1 festival on 15 September, NSW premier Gladys Berejiklian vowed she would do everything in her power to shut down the event.
But, after she had a moment to reflect, the premier decided to instead establish an expert panel to investigate how to improve safety at music festivals. Strangely, Ms Berejiklian told the panel members that they weren’t to consider pill testing: a popular life-saving measure in Europe.
Pill testing allows festivalgoers to check the contents of their drugs and make an informed decision about whether to take them. A government-sanctioned pill testing trial in the ACT last April possibly saved the lives of two punters whose drugs were found to contain a potentially lethal substance.
The expert panel, which included NSW police commissioner Mick Fuller, delivered its report. Its most prominent recommendation was another tough on drugs measure. Ms Berejiklian announced a proposal to create a new offence to hold people accountable for supplying a drug that causes death.
Then just quietly, on the second last sitting day of the parliamentary year, the NSW Liberal Nationals government passed a bill that contained the highly-criticised law of supplying drugs that cause death.
A failing drug war tactic
Passed on the 21 November, the Community Protection Legislation Amendment Bill 2018 inserted section 25C into the Crimes Act 1900. And today, supply of drugs causing death is one of the latest criminal laws on the books.
A person is guilty of this new offence if they have supplied a prohibited drug to another individual for financial or material gain. The drug must be self-administered by another person – not necessarily the one it was initially supplied to – and this then causes, or “substantially causes”, their death.
For this offence to be proven, it must be shown that the person who supplied the illicit substance “knew or ought to have known” that supplying it would expose the other person to a “significant risk of death”.
The prosecution of this offence must be approved by the Director of Public Prosecutions. And the section also stipulates that section 18 of the Crimes Act – which contains the offences of murder and manslaughter – does not apply to the new crime.
The law applies to the 200-odd prohibited drugs listed in schedule 1 of the Drug Misuse and Trafficking Act 1985. But, it doesn’t apply to the prohibited plants listed in the schedule.
And those who are found guilty of supply of drugs causing death can be sent away for as long as 20 years.
Provisos that don’t stick
In the second reading speech on the bill, NSW attorney general Mark Speakman explained that the offence contains the provision that the drug must have been supplied for “financial or material gain”, so as to protect against the “young friends” scenario.
“Namely where one friend is tasked with obtaining or sourcing drugs for a group of friends and is reimbursed, rather than seeking profit,” Mr Speakman explained. However, while he’s spelt this out in his speech, there’s nothing specifically in the legislation to guard against supply between friends.
The attorney general also said that in order to establish guilt “it will be necessary for the prosecution to prove beyond reasonable doubt that the accused knew or ought reasonably to have known that supplying the prohibited drug would expose” an individual to a risk of death.
And this measure too seems rather vague. So far this festival season, three drug-related deaths have occurred at events. However, as thousands of non-lethal pills have been consumed as well, it doesn’t seem likely an individual supplying someone with a pill would expect a significant risk.
Australian Greens leader Richard Di Natale last month launched his party’s plans to roll out pill testing sites around the country. The former drug and alcohol clinician outlined that where these services are utilised elsewhere in the world they’ve been shown to reduce drug use.
In regard to the new NSW law, which was yet to be passed, Senator Di Natale told Sydney Criminal Lawyers® that it could very easily be applied to the friend scenario. “This proposal would end up needlessly taking two lives over one overdose,” he made clear.
Former Australian Federal Police commissioner Mick Palmer is also a vocal proponent for pill testing. And after having a career in the police force that spanned three decades, Mr Palmer is now calling for the decriminalisation of personal drug use and possession.
According to Mr Palmer, this new law will only target “low hanging fruit”, meaning small time dealers, while they’ll have no impact on the high-level traffickers and producers. And he said over the phone that he was saddened that NSW authorities were continuing with the punitive approach.
And veteran drug law reformist Dr Alex Wodak said just after the new law was announced that the increased risk in dealing drugs would drive up the price, which in turn would increase profits. And that could then lead to more dealers appearing on the scene and more illegal drugs being sold.
Shifting the blame
Over in the States, these laws are referred to as drug-induced homicide laws. And Urban Survivors Union chief executive Louise Vincent criticised the laws in a recent article for shifting the blame from the real culprit behind drug-related deaths, which is the system of drug prohibition.
Ms Vincent explains that although drug-induced homicide laws are meant to target drug cartels, they’ve actually being used in the US to prosecute friends, loved ones and small-scale dealers, who sell on the side to support their own use.
And she further wrote that these laws mask the fact that it is the war on drugs that’s leading to situations where people are secretly taking illegal drugs without any knowledge of what they actually contain.
The Urban Survivors Union has recently launched the #ReframeTheBlame campaign, which allows people who use drugs to sign Do Not Prosecute directives outlining that they don’t want authorities to prosecute someone who supplies them with a drug that leads to their accidental overdose.
And it seems that if NSW authorities continue to disregard pill testing, and begin prosecuting those who supply others with a substance that proves deadly, then people who use drugs in this state may have to start signing directives so that their death is not used as a propaganda tool in the drug war.
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.