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In the last few weeks, the news has been reporting on the drug-related deaths at music festivals, and whether the Government should allow pill testing at these types of events.

This sparked an interesting debate between me and my father. On one side of the table (the older side) there was strong opposition to pill testing. On the other (more youthful and good looking side) there was a more colourful view on whether pill testing should be allowed – not that I condone the use of illicit drugs in any way, but each to their own.

After the lengthy, and at times heated, debate, I had a chance to ponder on the implications of allowing pill testing at music festivals.

For those who have missed the news, at music festivals people have the urge to take drugs such as ecstasy. I have not been to a music festival for a long time, so I am not sure if the point of the drugs is to make the music sound better, or to help with the social anxiety that youth seem to experience when they are not looking at their phone. It might even be the case that the drugs are cheaper than alcohol – have you been to a pub lately and seen the price of a beer!

Unfortunately, these drugs are purchased from less than trustworthy suppliers and can be laced with anything other than the drug. I heard in some cases ecstasy was being laced with laundry detergent!

Aside from resulting in sparkling clean insides, these drugs can cause serious injury or even death.

Testing of these drugs has been used in other countries, mainly supported at a Local rather than Federal level in Europe, as a harm-reduction intervention method. This has been used in the Netherlands, Switzerland, Austria, Belgium, Germany and France. The Australian Government has adopted a zero-tolerance stance on drug testing – despite only undertaking one trial – but even if the Government wanted to allow pill testing, would it be possible?

I firstly considered the effectiveness of the drug testing. The results on pill testing effectiveness has been mixed. There is evidence that suggests that it has helped reduce the frequency of overdosing and has increased knowledge about possible contaminants in drugs (such as laundry detergent!) and improved healthcare services. Research from Austria’s pill testing shows 50% of those who had their drugs tested said the results affected their consumption choices. 65% said they wouldn’t consume the drug and would warn friends in cases of negative results. So if it helps reduce harm, why not allow pill testing?

What about criminal consequences? If the Government allowed pill testing, could you be arrested by the police by going into the pill testing area? Technically, yes you can. During the trial in the Australian Capital Territory, the Police stated they would not be ‘actively’ targeting people who were getting their pill tested. Their main prerogative was to target and investigate the sale and supply of illicit drugs. If I look at this in a Queensland context, the police have the power to search anyone if they reasonably suspect that they have a dangerous drug in their possession. I would suggest that if someone is walking into a pill testing tent, there is a good chance they have a drug in their possession.

If pill testing was allowed, does this mean that it is legal to have drugs, as long as you only have them in the pill testing area? Significant amendments would need to be made to the Police Powers and Responsibilities Act as well as the Criminal Code Act to permit the possession of drugs in those areas, and to strip the police of their power to search a suspect. I would think there is more chance of George R.R. Marin finally finishing the next Game of Thrones book, or Disney making a good Star Wars movie than those Acts ever being amended.

Let us say those Acts were amended, and a person could confidentially walk into a pill testing area knowing they would not be arrested….what if the pill is bad (or rather even worse than it should be)? The pill testing tents should include an ‘Amnesty Bin’ (copyright pending, but I will allow you to use my word). I would expect it would be a requirement of the police that the bins contain bleach so all the discarded drugs were immediately rendered inert. The bins would be placed in a discreet location with a pill testing official allocated to ‘observe’ and record the number of discarded pills. But what if a festival goer decided not to discard the drug, but instead on-sell it to some poor unsuspecting person with the knowledge that the drug will most likely cause injury or death – it’s not their problem, so who cares, right? Wrong. If this were to occur, it would result in a criminal offence. I’m no criminal lawyer, but probably manslaughter.

What about the liability of the pill testers? If they have an official observing what drugs are kept, or discarded if they see a festival goer fail to discard a bad drug, should they be reporting it to the police? Or because it happened in this criminal black hole, is there any obligation for the official to report a potential crime?

On the other hand, what is the liability of the pill testers themselves? In the pill testing trial, they made everyone sign a waiver before entering. The waiver discharged any person who was connected to the provisions of the pill testing services against any personal injury or death suffered by the festival goer or in any other way. It also made the person acknowledge that they were not recommending people to take the pills, as no illicit substance is ever safe.

But for those that didn’t study law, or even those that did but fell asleep during Contracts 101, waivers are effectively meaningless when there is a negligent party. Lets say the pill tester enjoyed the odd ecstasy tablet as well, or had a few too many beers, or even just forgot their glasses and misread the test result. Maybe the equipment is faulty, or the tester just makes a mistake. If the person testing the pills told the festival goer that their pill was ‘safe’ and that person went on to take that pill and have adverse effects because the pill was laced with laundry detergent, would the pill tester be liable? Arguably yes, even though a waiver was signed it doesn’t protect from negligent behaviour.

What if the festival goer was already under the influence? Can they even legally sign a waiver? Can they give consent to their own death? The answer to both of those is ‘no’.

Who would be responsible: the pill tester, the organisation running the pill testing, or even the Government for allowing the pill testing to be carried out?

Would there be any criminal consequences on the pill tester? If they test a pill and hand it back to the festival goer, does that make the pill tester a supplier? If the pill causes harm or death, is the pill tester responsible for that harm or death because they supplied the pill? These are very complicated questions that need to be grappled with.

And what about the defences under the Civil Liability Act if someone makes a personal injuries claim? Is taking a drug an obvious risk? Is it a dangerous activity? Is it criminal behaviour? I would have said yes, but if the Government permits pill testing, that might exclude those defences from being available.

The supporters of pill testing argue that pill testing reduces the likelihood of harm and can save lives. I would add to the argument that pill testing would be no different to needle and syringe programs introduced by the Government. If the Government provide programs for heroin addicts, why not provide a program for someone who takes ecstasy?

People who oppose pill testing say it is sending the wrong message to young people across the country and that it will encourage drug use and puts society on a slippery slope to decriminalisation or legalisation of illicit drugs. I would caveat that argument by the fact that laws are constantly evolving. What was once illegal, is now every day. It was not long ago that same-sex marriage was illegal. Even other drugs are being legalised in certain ways, like Cannabis for instance.

Stuck in the middle are the politicians, police and other authorities – concerned about reducing harm, but charged with making and enforcing the law.

In my humble opinion, although both sides of the argument are presenting sound, and valid arguments, pill testing will never be permitted in Australia due to the countless effects on other laws – but as once said by the great Obi-wan Kenobi, “only a Sith deals in absolutes” so I might amend that statement by saying it is ‘unlikely’ pill testing will be permitted.

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