In NSW, the use of ‘Drug Detection Dogs’ is permitted by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Broadly, the Police are conferred the authority to use sniffer dogs in a variety of circumstances including both inside and outside entertainment venues such as clubs and pubs, as well as public transport hubs. These sniffers dogs are trained to detect minute quantities of illicit substances in a person’s possession in order to assist law enforcement. In NSW, they are trained to detect cannabis, MDMA, methamphetamine, and heroin.
In both the NSW and ACT, sniffer dogs have seemingly been at the forefront of a campaign targeted at young people attending events, namely concerts and music festivals. In Canberra, this has been evidenced by their presence at this years ‘Groovin the Moo’ festival. More infamously, drug dogs were central in the identifications that resulted in the allegedly unlawful strip searches of underage patrons at the 2021 ‘Splendour in the Grass’ festival, culminating in a class action lawsuit against NSW Police.
Pursuant to Section 148 of the Act, sniffer dogs may be used on any person in NSW at, or seeking to enter or leave:
- Any area of premises being used for consuming alcohol where alcohol is being sold (except for places primarily used as a restaurant or other dining place);
- A public place where a sporting event, concert or other artistic performance, dance party, parade or other entertainment is being held;
- A public passenger vehicle travelling on a route, or a train station, platform or stopping place on any such route;
- Any public place in the Kings Cross precinct.
Police are afforded the power to search any person where they have ‘reasonable suspicion’. Technically speaking, suspicion from a sniffer dog is not in and of itself sufficient in giving rise to a reasonable suspicion. However, it may be used in conjunction with surrounding circumstances at the discretion of police to assert that reasonable suspicion arises.
When undertaking a search, police are required to conduct the search in the least invasive and most practicable manner possible. They are also meant to provide the suspect with reasonable privacy. Whilst conducting a search, police are expressly prohibited from:
- Asking you to remove any clothing that is not necessary;
- Searching any body cavities;
- Searching your genital area. or breasts (for female or female identifying trans and intersex people), unless it is necessary; or
- Otherwise questioning you whilst you are being searched.
There is reasonable evidence to suggest that these procedures are not always adhered to on account of suspects typically being unaware of their rights and therefore being easily taken advantage of. Likewise, under Section 150, sniffer dogs are also not allowed to touch you at any point. However, this does very little to mitigate any intentional or unintentional intimidation factor that arises from their attention.
Criticisms
When one considers the significant invasion of privacy that often occurs after a sniffer dog indicates interest in a suspect, it would be reasonable to assume that these dogs operate with some degree of accuracy or reliability. Unfortunately, this assumption is not so clear.
In 2018, 61 searches were conducted in the ACT with drugs being found on 34 occasions and no drugs being found in the remaining 27. With an approximately 56% strike-rate, this program at first instance is seemingly relatively successful in detecting drugs and preventing low-range drug use.
However, in other jurisdictions where sniffer dog searches are more widely carried out and a greater sample size can be obtained, a far more accurate picture emerges. Of the 12.893 searches conducted in NSW in 2016, drugs were only found in 4019, or 31% of the time. Accordingly, NSW Deputy Coroner Harriet Grahame claims that “The fact is that in 2018–19 police figures supplied show that in personal searches after drug dog indication, drugs were found in 23.8 per cent of cases”, despite former NSW Police Commissioner Mick Fuller’s suggestion that searches had an almost 40% success rate.
Why are sniffer dog patrols still deployed so prominently across the Sydney CBD, Kings Cross, and music festivals across the nation? Some critics of this practice suggest that it is a completely unwarranted drug-fighting measure and that multi-person canine patrols in train stations are unnecessary and nothing but frightening.
Exceeding the prospect of mere intimidation, these sniffer dogs have had seemingly fatal consequences when employed at music festivals. Accordingly, Magistrate Grahame’s 2018 report indicated that drug detection dogs significantly exacerbated the practice of “panic ingestion”, whereby festival goers would consume large quantities of illicit substances in their possession to avoid detection and subsequently prosecution. Accordingly, the report indicates that this contributed significantly to the deaths of six young people at festivals in 2018.
Alternatives
This is not to suggest that practices that seek to prohibit the consumption and possession of illicit substances are themselves inherently immoral or should even be discontinued. Instead, it can be more reasonably suggested that programs should be aimed more so at harm minimization or that programs that do endeavour to detect illicit substances should be less invasive for suspects, especially when suspects are likely to be innocent and be found to have no drugs in their possession between 70-80% of the time.
It is on this basis that this phenomenon becomes particularly concerning in light of the recent successes of pill-testing trials across the country. Canberra’s confidential pill-testing service rolled out as part of a six-month trial in July 2022 was far more successful in deterring the unsafe consumption of illicit substances and reducing consumption and possession more broadly. This deployment represents a significantly pragmatic recognition, that whilst the ACT Government rightly does not condone or support illicit drug use, it recognises that it will occur regardless and consequently harm should be minimised accordingly.
Of the substances tested – most commonly MDMA, ketamine, cocaine, heroin and methamphetamine – around 21% were not what users believed they were and another 10% was uncertain. Findings from these trials indicate that this service had a tangible impact on users’ behaviour, with most users who were told the drug was something else indicating that they would not use it and almost one in five of total testers discarding their drugs at the clinic irrespective of result.
This style of anonymous support and cooperation with users embodied by pill-testing clinics starkly contrasts the potentially heavy-handed nature of canine patrols. Young people are consuming potentially toxic and deadly quantities of illicit substances that would otherwise likely be consumed in safer manner in an attempt to avoid interactions with law enforcement and avoid prosecution for a relatively minor offence.
These points have been most poignantly summarised by a report released by the NSW Greens and Greens MP David Shoebridge. Their data reveals that police drug dog units at festivals alone cost the taxpayer $700,000 annually, in addition to the approximately $9.5 million annual cost of the NSW Police Detection Dog Unit which conducts warrantless searches at train stations and pubs.
With each team requiring 12 officers, each sniffer dog, which will incorrectly sniff out a person that is not carrying drugs between 60-70% of the time costs $2,000 per hour per team. With the average festival having between two and seven teams, this can cost upwards of $36,000 per festival to subject pedestrians and festival goers who are not carrying drugs to invasive and sometimes unlawful strip searches.
This results in an average estimate cost of $36,000 per festival with questionable impacts on drug consumption enforcement.
Sam Hines
