New South Wales Greens MP Cate Faehrmann has called on the state government to investigate NSW police after she was subjected to a random drug test during Mardi Grass last month.

The party’s spokesperson for Drug Law Reform and Harm Reduction has also written to Auditor General Margaret Crawford demanding a performance audit of the NSW police random drug test (RDT) regime.

In a letter to Minister for Police and Emergency Services David Elliott and Attorney General (AG) Mark Speakman, Faehrmann, who was attending Mardi Grass as a guest speaker, said she was stopped outside Nimbin at around 9am on May 2 for a random drug test “as were hundreds of others over the course of that weekend”.

She says the officer involved failed to use gloves when conducting the test, breaching standard operating procedure (SOP), and provides screenshots of a video taken at the time to prove her assertion.

The letter cites SOP guidelines on the collection and handling of samples: “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 says the sensitivity of the tests makes them extremely vulnerable to contamination, “especially if the officer had also been handling the tests of other drivers without gloves”, adding it also represents poor Covid-19 protocol.

According to Faehrmann’s legal advice, “none of the tests administered over that weekend can be relied upon with any certainty”.

The letter calls on the minister and AG to ensure any infringement notices or charges issued against drivers who tested positive following a random drug test over Mardi Grass weekend be withdrawn and all samples obtained be destroyed.

New South Wales Greens MP Cate Faehrmann

It adds: “I also request that you conduct an urgent review into the RDT program in NSW to determine how often NSW police officers are acting in breach of the SOP, how often this has resulted in false positives and the cost that has been shouldered by the NSW taxpayer to conduct these faulty tests.”

In a press statement, Faehrmann said all tests conducted over the Nimbin Mardi Grass weekend are now in doubt: “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 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.”

In her letter to the Auditor General demanding a performance audit of the RDT regime, Faehrmann said the move is necessary as, despite its significant scale, cost, and impact on medicinal cannabis patients, there has been no assessment of its impact on road safety.

“The RDT regime has several clear flaws which the NSW government has failed to address. It is unclear on what evidence the government not only continues the regime, but seeks to vastly expand it, or how the regime represents the most strategic use of taxpayer funds to reduce road trauma.”

“Based on the available evidence it would seem the regime causes far more harm to the public than it prevents.”

David Heilpern
Drive Change campaigner and former magistrate David Heilpern: any prosecution would be likely to fail

Former NSW magistrate and drug-driving campaigner David Heilpern said: “It beggars belief that the only test conducted on that day where protocols were breached was the one on a member of parliament.”

He cited press reports indicating more than 1,500 tests were conducted around Nimbin during Mardi Grass with 29 detections.

“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.”

“I join calls for all prosecutions or penalties launched or issued as a result of the flawed testing [to be] 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.”