Drug tests taken over Nimbin MardiGrass weekend ‘invalid’ says MP

The validity of the roadside drug tests (RDT) conducted over the Nimbin MardiGrass weekend in early May has been questioned after police were recorded breaching testing protocols during the weekend blitz.

Cate Faehrmann, Greens MP and spokesperson for Harm Reduction and Drug Law Reform, has written to NSW Police Minister David Elliott and the Attorney-General Mark Speakman, calling for all tests conducted over the Nimbin MardiGrass weekend in early May to be declared invalid after breaches by a NSW Police Officer conducting drug tests have been revealed in a video taken by a staff member of Ms Faehrmann’s. 

On Sunday morning, 2 May, at approximately 9 AM, Ms Faehrmann was stopped by police whilst driving to the Mardi Grass festival for a random drug test just outside of Nimbin, as were hundreds of others over the course of that weekend.

Ms Faehrmann has written to the Police Minister David Elliott with excerpts of a video showing how the officer conducting the test failed to use gloves while handling the testing device – a clear breach of part 1-5 of the Standard Operating Procedures (SOP) for Random Oral Fluid Testing which reads:

Under no circumstances will oral fluid or equipment used to obtain oral fluid samples be handled by police without wearing protective latex or nitrile gloves.

Ms Faehrmann has also written to the Auditor General requesting a performance audit of the scheme due several detected breaches of standard operating procedure, the inaccuracy of tests and a lack of evidence that the scheme reduces road trauma. 

‘All tests conducted over the Nimbin Mardi Grass weekend are now in doubt and any court attendance notices or penalties issued as a result of a positive test must be withdrawn,’ said Ms Faehrmann. 

‘The tests used are incredibly sensitive and can be easily contaminated, potentially resulting in false positives. 

‘We have no idea how many breaches by officers conducting the tests are going undetected and potentially causing false positives. That’s why I’ve written to the NSW Police Minister and the Attorney-General asking them to put the brakes on this dodgy Roadside Drug Testing regime and allow for it to be independently reviewed.

‘And it’s why I’ve also written to the NSW Auditor-General asking them to undertake a performance audit of the scheme.’

Former judge says breach ‘significant’

‘I have viewed photographs of the drug tests on Cate Faehrmann MLC on the weekend of Nimbin Mardi Grass 2021. It is immediately apparent from those photographs that police were not complying with their own standard operating procedures. They were not wearing gloves,’ explained David Heilpern is a retired NSW Magistrate having sat in regional and rural NSW for over 20 years.

‘The Standard Operating Procedures for random oral fluid testing are found on the NSW Police website. Paragraph 1-5 could not be clearer or more directive:

“Under no circumstances will oral fluid or equipment used to obtain oral fluid samples be handled by police without wearing protective latex or nitrile gloves”.

‘It beggars belief that the only test that was conducted on that day where protocols were breached was the one on a member of parliament, and it is far more likely that protocols were contravened extensively in the operation that occurred. Press reports state that there were more than 1,500 tests conducted around Nimbin during the Mardi Grass with 29 detections.

‘The consequences of the breach are significant,’ said Mr Heilpern.

‘First, all tests conducted without gloves and in breach of the protocols would be unlikely to be able to be successfully prosecuted for obvious reasons.

‘Second, all subsequent tests on other people would also be suspect – the protocols have been developed to protect from cross contamination and not wearing gloves means that the testing regime is unreliable.

‘Third, evidence obtained as a result of this impropriety (including stage two and three testing) would be subject to inadmissibility rulings in court proceedings under s138 of the Evidence Act NSW.

‘I join calls for all prosecutions or penalties launched or issued as a result of the flawed testing withdrawn. This is not only because any prosecution would be likely to fail, but also out of a recognition that it would be unfair to proceed.’

MP Faehrmann has also highlighted that unlike blood alcohol testing which are ‘rigorous and can’t be contaminated’ that is not the case for random drug testing.

My experience shows that mistakes happen and when it comes to something that can lead to a person losing their Drivers Licence and their careers, this isn’t good enough. 

‘Given that at least one officer on duty over the Nimbin Mardi Grass weekend breached the Standard Operating Procedures for conducting oral drug tests, the Police Minister has no other choice than to declare that every test conducted over the weekend be declared potentially contaminated, and therefore invalid,’ said Ms Faehrmann.

‘A recent study undertaken by researchers at the University of Sydney found that the two most common drug testing kits used by the NSW Police are substandard in terms of accuracy and specificity. The research showed that they failed to detect high concentrations of THC up to 16 percent of the time, and recorded positive results for THC when the actual presence was negligible.’

Mr Heilpern also highlighted the issue that putting such a high level of police funding into this program was a waste of taxpayer’s money and diverts police away from core responsibilities.

‘These 1,500 tests were conducted on unimpaired festival goers and locals going about their business. It is a colossal waste of police time, community resources and road safety funding for this to have occurred in the first place. It was not and does not even pretend to be about road safety. It is all about prohibition. For this to have transpired in circumstances where the police cannot even follow their own clear directives amplifies the absurdity of the entire operation.’