Review of the Police Powers (Drug Detection Trial) Act 2003 - NSW ...

Unavailability of roadside drug testing during operations
Police were instructed not to conduct roadside (oral fluid) drug testing during drug detection operations as a result of
an agreement between the Minister for Police and the Minister for Roads. This restriction caused significant disquiet
amongst police conducting operations due to the fact that they occasionally had to allow drivers — who appeared
drug affected, or who had made admissions of recent drug use — to continue on their journeys.
Police are only able to lawfully arrest and detain a person for the purpose of obtaining blood and urine samples at a
hospital where they reasonably believe the driver is under the influence of drugs based on the manner in which the
driver drove or attempted to drive a vehicle. This requirement appears to preclude taking into account observations
or admissions of drivers stopped at check points during operations. Nevertheless, we noted two occasions where
police — motivated by a desire to ensure road safety — arrested drivers and took them to a local hospital for blood
and urine testing. The availability of oral fluid testing during operations would have obviated the need to take this
arguably unlawful action and would have provided police with an appropriate tool to address their concerns about
drug-affected drivers. In our view, the disquiet expressed by police appears to be well founded.
Effectiveness of drug detection operations
The results of operations conducted during the drug detection trial clearly demonstrate that the objectives of the
trial have not been realised. There appears to be little or no evidence suggesting that drug detection trial operations
are useful in apprehending or frustrating persons involved in the vehicular trafficking and/or supply of indictable
quantities of prohibited drugs.
Overwhelmingly, drug detection trial operations resulted in the detection of persons involved in ‘minor possession’
offences rather than those involved in the supply or trafficking of indictable quantities of drugs.
Impact of the legislative changes
The Drug Detection Trial Act contained a number of changes aimed at increasing the flexibility and mobility of
operations, and to make operations less predictable and more difficult to evade. The changes included a shift from
warrants granted by judges authorising the police use of the powers, to authorisations granted by senior police; a
simplification of the application process although not of the material required to justify the basis of an operation;
an extension of the geographical areas where operations could be conducted (from ‘border areas’ in southern and
western NSW to all ‘outer metropolitan areas’ of NSW); an increase in the number of check points permitted (from
one to any number), the size of search areas (from 1km 2 to 5km 2 ), and the duration for which an authorisation was in
force (from 72 hours to 14 days); and the removal of signage requirements at check points.
There is little evidence to suggest that the anticipated benefits of the legislative changes have been realised despite
the best efforts of police conducting a variety of well-planned and executed operations. While the changes provided
some additional flexibility and mobility of operations, a critical examination of the results does not support the view
that operations were less predictable and more difficult to evade. As noted above, larger amounts of drugs were
seized during the 9 border areas trial operations than during the 23 drug detection trial operations.
Factors impacting on effectiveness
The majority of police we consulted during the review were of the view that drug detection trial operations are an
ineffectual and impractical tool for targeting persons involved in the trafficking of indictable quantities of prohibited
drugs. Police identified a number of factors that impacted on the success of drug detection trial operations.
The biggest factor impacting on the effectiveness of operations was the dissemination of information about the nature
and location of operations via CB radio and mobile phone networks. This widespread dissemination of information
about operations hampered the capacity of police to achieve an ‘element of surprise’, which is a critical factor to the
success of any drug-related operation.
Another significant factor impacting on the effectiveness of operations is the capacity of drug detection dogs to
detect the scent of prohibited drugs while screening the exterior of vehicles. The fact that no indictable quantities
of drugs were detected in the cargo areas of heavy vehicles appears to indicate that the dogs may not be able to
consistently detect the scent of drugs secreted in heavy vehicles.
Police also suggested that a number of the legislative requirements such as the search area restriction and the
inability to direct drivers to open doors, as well as the various occupational health and safety requirements, impacted
on the effectiveness of operations.
NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003
v