Music Festivals, Drugs, and Your Legal Rights When Dealing with Police

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As the weather warms and music festival season approaches, a concern for many attendees will be how to deal with police and what your rights are. This is due to the often-overwhelming presence of police officers and sniffer dogs at festivals and concerts.

Table Of Contents

What are the Penalties for Drug Possession?
How Much Trouble Can I Get into For Bringing MDMA/Ecstasy to a Music Festival?
How Much Trouble Can I Get into For Bringing LSD to a Music Festival?
When Can Police Officers Search Me?
What Happens If Police Search You Unlawfully?
Recent Festival Drug Cases

What are the Penalties for Drug Possession?

In New South Wales, it is a criminal offence to possess a prohibited drug. Substances classified as a ‘prohibited drug’ are outlined in schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) (‘DMTA’). This includes cannabis, MDMA (3,4-Methylenedioxymethamphetamine), ketamine, cocaine, heroin, amphetamine, magic mushrooms (psilocybin) and LSD (lysergic acid). The maximum penalty associated is 2 years imprisonment and/or a $2,200 fine.

For tailored and confidential advice on drug charges, speak to one of our drug lawyers Sydney team.

How Much Trouble Can I Get into For Bringing MDMA/Ecstasy to a Music Festival?

MDMA is also known by the name of ecstasy and is a common drug music festival goers take to music festivals for purposes of consuming over the course of the festival.

	Amount	Penalty
Small Quantity	0.25g & under 0.75g or typically 2-5 pills	On the spot fine $400
Trafficable Quantity	0.75g & under 1.25g or typically 5-10 pills	Fine up to $2,200 or up to 2 years imprisonment

How Much Trouble Can I Get into For Bringing LSD to a Music Festival?

LSD is short for Lysergic Acid. It is a prohibited drug in New South Wales. A typical dose of LSD on a single blotter paper or “sticker” ranges from about 20 to 150 micrograms. A typical LSD dose on a single blotter paper would be approximately 0.00002 to 0.00015 grams.

	Amount	Penalty
Small Quantity	0.0008g and under 0.003g or typically 5 stickers	On the spot fine $400
Trafficable Quantity	0.003g and under 0.005g or typically 5 – 20 stickers	Fine up to $2,200 or up to 2 years imprisonment

Getting a Fine for LSD or MDMA/Ecstasy

There is a discretion given to police officers in NSW to issue an infringement notice fine of $400 to anyone caught having a small quantity of prohibited drugs, according to schedule 4 of the Criminal Procedure Regulation 2017 (NSW).

As an alternative to paying a fine, from 29 February 2024, if you are issued with a fine for possessing drugs, participation and completion of a drug health intervention program under the Early Drug Diversion Initiative will replace the need to pay the fine in full satisfaction of the fine.

Paying the fine or completing the drug health intervention program does not amount to a criminal conviction against your name. This fundamentally means that you will not have a criminal record.

If you are caught having MDMA (Ecstasy) on you at a music festival, police can issue you a fine only if:

It is in capsule form weighing no more than 0.25g; or
It is in any other form weighing under 0.75g

Police can issue you a fine if you are caught with any other prohibited drug weighing no more than the ‘small quantity’ of that drug.

A fine can be issued by police even if this is not your first time being caught with possessing drugs in New South Wales.

Getting a Conviction and/or Imprisonment for LSD or MDMA/Ecstasy

If the police decide not to issue a fine as a result of finding you with possession of drugs, and instead issue you with a criminal charge involving a Court Attendance Notice, you will be required to front court and face the allegations where you will be required to either enter a plea of guilty or not guilty. If the court finds you guilty, whether by you pleading guilty or the court finds guilt following a defended hearing, then you will be exposed to more serious and onerous penalties including a conviction against your name, a heavy fine and possible imprisonment. A court can impose up to two years imprisonment for drug possession in NSW, according to section 10 and 21 of the Drug Misuse and Trafficking Act (NSW).

Sentencing statistics outline that over 50% of drug possession cases are dealt with by way of the defendant being convicted and fined, with the amounts ranging from $200 – $750 in a majority of cases.

Getting a Caution for Cannabis

On-the-spot fines are not applicable if you have been caught possessing cannabis leaf. Instead, police may decide to issue a ‘warning’ without charge, to an eligible offender, who is in possession of 15 grams or less, and admits to having in their possession for personal use.

This option is labelled the ‘Cannabis Cautioning Scheme’.

Police are unable to issue a caution if the offender was committing other criminal offences at the time, has prior convictions related to drugs, violence, or sexual assault, or has received a caution more than twice.

When you receive a cannabis caution, you will also be provided with details of the Alcohol and Drug Information Service which assists in educating people as to the health and legal ramifications of using cannabis, as well as options for treatment and support.

When Can Police Officers Search Me?

The power for police officers to stop, search, and detain a person, without a warrant, is contained with section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’).

It provides that police may stop, search, and detain you, without a warrant, if they suspect on reasonable grounds that you possess or control:

something stolen or otherwise unlawfully obtained,
anything used or intended to be used in or in connection with the commission of a relevant offence,
considered a dangerous article (i.e., prohibited weapon, firearm, spear gun) in a public place that is being or was used in or in connection with the commission of a relevant offence,
considered a ‘prohibited drug’ or ‘prohibited plant’ in contravention of the Drug Misuse and Trafficking Act 1985 (NSW).

The police will then be able to seize and detain anything in your possession (or under your control) that relate to these items outlined.

When police are conducting a search, and they suspect on reasonable grounds that you are concealing something in the mouth or hair, they may direct you to:

open your mouth to enable it to be searched, or
shake, or otherwise move, your hair.

This does not authorise police to forcibly open a person’s mouth, however, failing to comply with such a direction is an offence punishable which a maximum penalty of a $550 fine.

There are two main types of searches that a police officer may carry out on a person, including a general (‘frisk’) search and a strip search.

During a general or ‘frisk’ search, a police officer can:

Quickly run their hands over your outer clothing,
Require you to remove your coat/jacket or similar article of clothing and any gloves, shoes, socks, and hat,
Examine anything in your possession,
Pass an electronic metal detection device over or in close proximity to your outer clothing or anything removed from you.

In comparison, during a strip search, it may involve you removing some or all of your clothing.

Police Guidelines prescribe that any search requiring more than removing an outer layer of clothing (i.e., coat/jacket, gloves, shoes, socks, hat) should be considered as a strip search.

A strip search should be conducted in a private area. It should also not be in the presence or view of a person who is of the opposite sex, or whose presence is not necessary for the purposes of the search.

However, these protections apply only where it is considered “reasonably practicable in the circumstances.”

Strip searches must not involve a search of a person’s body cavities or an examination of the body by touch. It is also prescribed that it should not involve the removal of more clothes or more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.

Strip searches can only be conducted where the police officer suspects on reasonable grounds that it being one is necessary for the purposes of the search.

A strip search not conducted at ‘a police station or other place of detention’ (i.e., in a tent at a music festival or a police van after being stopped on the street), can only be conducted where the police officer suspects on reasonable grounds that the seriousness and urgency of the circumstances make it necessary.

Whether a situation is ‘serious and urgent’ will depend on the facts of the situation. Police officers are required to have a legitimate answer as to how the relevant situation fulfills this.

What Happens If Police Search You Unlawfully?

It is important to note that if police do not have reasonable grounds to search you, or do so in an improper or illegal way, any evidence obtained may be excluded by the court.

Section 138 of the Evidence Act 1995 (NSW) provides that any evidence that was improperly or illegally obtained by the police may not be admitted by the court, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in such a way.

This essentially involves a balancing act, in which the court will take into account the relevance and importance of the evidence in the proceeding, as well as the nature of the relevant offence.

It will also consider factors including the gravity of the impropriety or contravention, whether the impropriety or contravention was deliberate or reckless, and whether it was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights.

Recent Festival Drug Cases

Upcoming festivals include ‘Listen Out’ at Centennial Park, Sydney and the ‘Knockout Outdoor’ Festival at Sydney’s Giants Stadium in Sydney Olympic Park which will both be on 30 September 2023.

At ‘Splendour in the Grass’, which is a music festival annually held in Byron Bay, police conducted a high-visibility operation over the four-day event, in July 2023.

It was specified to target illicit drug use and supply, alcohol-fuelled violence, and anti-social behaviour.

NSW Police reported that they detected and seized a number of illicit drugs, including cannabis, MDMA capsules, magic mushrooms (psilocybin), methylamphetamine and cocaine, with the assistance of sniffer dogs.

This resulted in 42 people being charged and issued with future court attendance notices, 36 people being issued criminal infringement notices (fines) and 31 people being issued with cannabis cautions.

In 2022, Listen Out and Knockout Outdoor also coincided on the same date, with other 60,000 festivalgoers in attendance. Over 70 people were charged with drug possession, whereas only 4 were charged with supply.

Unfortunately, the 18 drug overdoses occurred across both of the festivals (12 at Knockout, 6 at Listen Out).

South West Metropolitan Region Commander, Assistant Commissioner Stuart Smith commented at the time that: “police will continue to conduct high-visibility operations to target the use, possession and supply of illicit substances – along with antisocial behaviour and alcohol-fuelled violence – particularly as large-scale events continue to return in the summer months.”

Published on 25/09/2023