While the push is on for pill testing to be introduced into Australian festivals, the reality is that illegal drugs are just that -- illegal. Police officers, sniffer dogs and security guards are the unwelcome welcoming party to music festivals today, ready to search and pat and sniff festival-goers for anything they shouldn't be carrying. Many punters manage to hide their substances enough to get through; many others are not so lucky.
At July's Splendour In The Grass festival in Byron Bay, 92 people were slapped with drug-related charges, while the touring Stereosonic festival in November saw 70 people arrested in Melbourne and 69 in Sydney. Festival organisers have warned punters of a stronger security and police presence at this summer's events.
The Huffington Post Australia spoke to law firms Randall Legal -- which hosts a free legal advice tent at the Splendour and Falls festivals in Byron Bay -- and Sydney Criminal Lawyers' drug subsidiary, Sydney Drug Lawyers, about your legal rights at a festival, and what to do if you are detained by police in NSW.
(NOTE: These comments are specifically in relation to NSW law. Laws around searches vary from state to state)
BEING STOPPED FOR A SEARCH
With recent drug-related deaths at music festivals, festivals over the New Year period seem to be mounting a more concerted effort than ever to stem the flow of drugs into their venues. The Falls Festivals, with locations in Byron Bay, Lorne and Marion Bay, recently sent an email to ticketholders warning of "thorough vehicle searches" looking for alcohol and drugs, with punishment for BYO alcohol being immediate ejection from the festival.
"We’ve been told that this year we need to refund tickets to all patrons in any car has BYO booze on board," the festival said.
Field Day, in Sydney on January 1, has warned of sniffer dogs onsite , while WA's Southbound festival also told festival-goers of thorough searches upon entry.
Tracey Randall, founder of Randall Legal, told HuffPost Australia police often apply for general search warrants for the entire geographical area covered by the festival, which gives them the right to search persons, cars, tents, bags and other property at the festival; aside from that, police can search punters if they have "reasonable suspicion" they are carrying drugs.
"The law says if a sniffer dog stands by you, that's reasonable suspicion which gives them the power to search. They're covered on two bases then [with the general search warrant for the festival]," she said.
"Nobody knows how big the general search area is, unless you specifically ask. At one festival, it was the grounds and a small area around the grounds."
Jack Leitner, senior lawyer at Sydney Criminal Lawyers, said police often have a "specified vicinity" outside the festival gates where they patrol, including bus stops, train stations and other modes of transport coming into the festival. He said the police's "reasonable suspicion" is a vague, broad term that gives officers broad powers of search.
"There is contention, but it's common knowledge that drugs are rife at festivals and anyone displaying signs of nervousness -- such as walking the other way upon seeing a dog, or looking suspicious -- will be stopped and searched. Leaving festivals aside, police can use a whole range of excuses, such as the area being known for drug supply. It can be fairly wishy washy," he told HuffPost Australia.
"It’s not a high bar, festivals are known for drug use so anyone looking even the least bit suss can be pulled over."
Leitner said police have the right to ask patrons to turn out their pockets, open their bag or submit to other search measures, and that a failure to comply with police requests is an offence that will likely see a person detained.
Randall also said it would be best for patrons to cooperate with police, even if they do not agree with the grounds for the search.
"If you are within the search warrant area, yes they can search your tent or bag. I don't think its advisable to refuse a search. You're better to co-operate but not consent," she said.
"If you're asked “do you agree to being searched,” you can say “no but I will co-operate." If you refuse, it will get ugly."
Once police have detained a festival-goer or a search has begun, both Leitner and Randall said it was advisable to not lie to police.
"If you're caught red handed, it's what not to do, rather than what to do. What not to do, is don't make up stories or fibs. If you start lying, it looks bad when the charge sheet is created for court," Leitner said.
"There is a right to protect yourself from self-incrimination, but people often admit it's for personal use and co-operate with police, which is often looked upon much better when you're charged and it can have some negative impacts on your case. If it's on you, if they've got a valid reason to search and they've found it, it's a question of not digging your hole deeper by being argumentative or making up stories. That won't endear you to a magistrate."
Randall, however, pointed out that if a person believes the search is unlawful -- for instance, if police did not have reasonable suspicion to conduct the search -- that "co-operate but not consent" is the mantra.
"People are better to not consent to the search but submit, then leave it to a court to decide whether it's lawful or not. The other way police can search is if you consent to it -- even if they have no cause. Most people consent because they don't know they can refuse," she said.
"Generally, our advice to clients is to not make any admissions. but if they make admissions and the search is not lawful, they can be convicted on their admissions. Having said that, certainly regarding penalties, cooperation with police and making full admissions help mitigate their offending and go in their favour."
Randall was careful to stress that punters should not antagonise police.
"I’m not sending a message to people to not cooperate. You don't want people saying “f**k you" to police," she said.
Police do have the power to request a strip search, in addition to searching pockets, bags and other possessions. Under NSW's Law Enforcement (Powers and Responsibilities) Act 2002, police are authorised to conduct a strip search if they suspect "on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out."
- inform the target of the search why it is necessary for them to remove their clothing;
- conduct the search in a private area;
- not conduct the strip search in the view of a person of the opposite sex of the search target;
- conduct the search as quickly as is reasonably practicable, and in the least invasive manner practicable;
- not search the person's genital area or (in the case of a woman) the breasts
- not carry out questioning during the strip search
A strip search must also be conducted by an officer of the same sex as the search target, and the target allowed to dress as soon as the search is finished. While police are not allowed to search a person's genitals, anecdotal reports suggest strip search targets are asked to squat over a mirror.
Leitner said the laws around strip searches were also vague.
"The law says they can conduct strip searches if the police officer suspects it is necessary. It is hardly black and white," he said.
CONSEQUENCES AT THE FESTIVAL
Leitner said festival-goers caught with drugs can be ejected from the festival with no refund.
"You can be banned from the venue as you may not be welcome there anymore. On that ground, they can evict you. Your condition of entry, which is upon doing the right thing, has been breached and you've committed an offence - your right to enter the venue can be revoked," Leitner said.
However, Randall said many festivals do let sprung punters back in the door.
"I know the festivals I’ve been at, they let them back in, but I have spoken to other people who run festivals and they said that there is pressure from police and others to not let them back in. There is not a legal basis to throw someone out, not that I know of," she said.
CONSEQUENCES AFTER THE FESTIVAL
Randall said people caught with drugs should seriously consider legal representation, even on what may be considered small charges.
"I would suggest they seek legal help. What can seem like a small matter can have a huge impact; for instance, if someone wanted to join the police or become a lawyer or teacher," she said.
"A criminal conviction can have a severe impact on eligiblity for a number of professions, particularly in the government sector. It can also have an impact on their ability to travel, particularly to countries like the United States."