New Police Sniffer Dog Policy At Music Events May Not Be Legal

"Welcome to New South Wales, where being young in public is now a criminal offence."

What you need to know
  • Anyone targeted by sniffer dogs at the upcoming Above and Beyond festival will be denied entry, NSW Police announced
  • Criminal defense lawyers say this approach might be illegal
  • Greens MP David Shoebridge slammed the move as "a clear abuse of police power" and "some kind of perverse punishment"
  • Sniffer dogs have been found to be wrong up to 80 percent of the time
  • Two young people in Australia have died in the last decade as a result of panicking at police presence

A new police policy around drugs, sniffer dogs and music festivals may be illegal and ”a clear abuse of police powers," lawyers say.

On Tuesday, NSW Police announced that anyone indicated by a sniffer dog at the upcoming Above and Beyond festival in Sydney would be denied entry to the venue, whether or not they were found to have illicit substances on their person.

“Leave your drugs at home,” the police messaging reads, but it doesn’t quite make sense. With this approach, you can leave your drugs at home and still be denied entry. The police commander heading up the initiative, Assistant Commissioner Peter Thurtell, put it more clearly: “Quite simply, if you handle of use drugs you will not be permitted to remain at the venue.”

It’s a fundamentally flawed approach. Sniffer dogs are notoriously ineffective, producing false positives up to 80 percent of the time. By this logic, 4 in 5 people approached by dogs at the Above and Beyond -- many of whom will have paid over $100 for a ticket -- will be denied entry on no grounds at all.

Above and Beyond perform in San Francisco in 2018. Source: Getty.

Greens NSW MP David Shoebridge slammed it as "a clear abuse of police powers" and as allowing "some kind of perverse punishment by the police", but it's more than that: criminal defense lawyers believe the approach may be illegal.

The power for police to issue a public safety order (i.e. to deny a specific person from attending a specific public event or to enter a specific premise) comes under Section 87Q of the Law Enforcement (Powers and Responsibilities) Act 2002.

But as the Sydney Criminal Lawyers group confirmed to ten daily, it’s unclear what section of act would give police the power to deny entry, and it could well be illegal.

“Broadly speaking, if a police officer wants to come and search you, they have to have what’s called a reasonable suspicion,” said Ali Saleh, a senior criminal defence lawyer.

“The police are relying on the dogs and their reaction to satisfy the reasonable suspicion test. But a dog’s indication doesn’t give rise to reasonable suspicion in itself. There has to be a combination of other factors.”

He explained that attending a music event such as Above and Beyond might give rise to reasonable suspicion, but that it would only give police the power to search you, not to deny you entry.

When asked if, essentially, it was unclear that this approach was even legal, he replied: “That’s correct.”

Dr. Shoebridge agreed. "It's hard to see how this kind of action by police could be legal, seeing how it involves punishment in the absence of any offence," he said.

Sniffer dogs are found to give false positives up to 80 percent of the time.

This heavy reliance on police sniffer dogs is particularly infuriating to harm reduction advocates, who have been pushing for a new approach for years.

“We know that the use of sniffer dogs has very little impact on harm,” said Dr. David Caldicott, an advocate for harm reduction who lectures at the Australian National University.

“That’s not my opinion, nor is it really a secret -- that’s the opinion of the NSW Ombudsman's office from over a decade ago.”

Two young people have died as a result of panicking over police presence and overdosing on drugs in the past decade: James Munro at Defqon. 1 in 2013, and Gemma Thoms at Big Day Out in 2009.

Dr. Caldicott even points out that this sniffer dog policy could encourage young people to experiment with lesser known drugs that they are unused to.

"One of the reasons that the novel psychotropics are of interest to consumers is the presumption that they are more difficult to detect," he said.

"On that basis alone, this initiative would seem to encourage young people to try newer drugs, with which they have no experience, making the market itself more intrinsically dangerous."

He also pointed out that for the $9 million per year NSW spends on the sniffer drug program, the state could fund ten pill testing trials. Already the first pill-testing trial in Australia, at Groovin' The Moo in Canberra this year, has proven a success, with two potentially deadly pills 'red-flagged'.

Groovin The Moo festival in Canberra had Australia's first successful pill testing trial in April this year. Credit: Mitch Ferris / Groovin The Moo Facebook.

"Think of the funding involved in the machinery of a prohibition approach to drugs -- you can see why senior law enforcement might feel threatened by anything other than more of the same," says Dr. Caldicott. "But the first law about being stuck in a hole is to stop digging deeper. This initiative is the equivalent of dropping an excavator down the bottom of a very deep hole and shouting ‘dig faster!’"

Shoebridge goes one step further.

"The war on drugs is war on young people, with little to no impact on public safety or crime," he said.

“Welcome to NSW, where being young in public is now a criminal offence."