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

(b) the likelihood of success of the proposed operation compared with the likelihood of success
of any other law enforcement operation that it would be reasonably practicable to conduct for the
same purposes.
(3) The authorisation may be granted unconditionally or subject to conditions.
(4) An authorisation is to be in the form (if any) prescribed by the regulations.
(5) If a designated officer grants an authorisation, the designated officer is to make a record of the reasons for
which the designated officer was satisfied of the matters referred to subsection (1)(a) and (b).
(6) If an application for an authorisation is refused by a designated officer, the police officer who made the
application (and any other police officer who is aware of the application) may not make a further application for
the same authorisation to that designated officer or any other designated officer unless the further application
provides additional information that justifies the making of a further application.
Section 14 of the Drug Detection Trial Act provides:
(1) An authorisation has effect, unless sooner revoked, during the period beginning at the time it is given and
ending at a time specified in the authorisation by the designated officer who grants the authorisation.
(2) The period during which an authorisation has effect must not exceed 14 days, beginning with the day
on which it is granted.
(3) An authorisation cannot be extended but a further authorisation may be granted for the same or part of the
same area.
4.1.2.1. Grant of authorisation practice adopted by designated officers
The region operations managers were responsible for placing applications for authorisation before the designated
officer. The region commander for the region where the operation was conducted considered and determined the
applications for authorisation.
The SOPs for the drug detection trial contain a template authorisation which alerted the designated officer to the
matters that she or he must be satisfied of, and the factors to be considered when granting an authorisation. 147
4.1.2.2. Examination of authorisations granted by a designated officer
A total of six designated officers — all of whom were region or acting region commanders of the rank of Assistant
Commissioner — granted the 23 authorisations during the review period. Our examination of the authorisations
granted revealed a high degree of compliance with the section 8 requirements.
Section 8(5) requires the designated officer to make a record of the reasons for being satisfied in order to grant the
authorisation. Without exception, the only record provided to us was the authorisation, which generally disclosed
the designated officer’s reasons for reaching the requisite satisfaction in relation to:
• the reasonable grounds to suspect the search area is, or is being used on a regular basis for or in connection
with the supply of indictable quantities of prohibited drugs (pursuant to section 8(1)(a)), and
• whether the nature and extent of the proposed operation is appropriate to the suspected criminal activity
(pursuant to section 8(1)(b)).
However, the authorisations rarely documented how the designated officers had regard to the reliability of the
information and the likelihood of success of the proposed operation compared with the likelihood of success of any
other law enforcement operation that would be reasonably practicable to conduct for the same purposes. The usual
practice was to state that the matters had been considered without further elaboration. 148
Two authorisations were subject to conditions. One authorisation contained what appeared to be legal advice
as a condition (see paragraph 4.2.2 below), and another specifically excluded a search area listed in the
application for authorisation.
One quarter of the authorisations (6 of 23) were granted for the full 14 days including one granted for 16 days and another
for 18 days despite the fact that section 14(2) provides that the duration of an authorisation must not exceed 14 days. The
fact that a majority of the authorisations were granted for less than 14 days was a little surprising given that operations
conducted over a longer period of time are likely to be more flexible and involve a greater ‘element of surprise’. 149
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NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003