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

material, and the highway that runs through the proposed search area, then this would be a relevant consideration
for the designated officer.
What may not be appropriate is the reliance on generalised information as the basis to conduct a cost and resource
intensive operation. However, the Drug Detection Trial Act clearly allows for a reliance on general intelligence as the
basis for the operation.
4.1.3.2. Additional threshold test
In addition to the above threshold test, section 8(1)(b) imposes an additional threshold test. Namely, the designated
officer must be satisfied that the nature and extent of the operation proposed to be carried out is appropriate to the
suspected criminal activity.
Our examination of the authorisations granted revealed that this test may not have been explicitly considered by a
number of designated officers. For example, in one authorisation granted, the designated officer, after noting that
indictable quantities of drugs had been seized on 26 occasions in the last 6 years — approximately one indictable
seizure every three months — stated that he was specifically relying on 4 seizures within the last 12 months. Three
of these seizures involved vehicle stops where police pulled drivers over for random breath testing (two occasions),
or as a result of a radio check (one occasion). Or put another way, police were conducting general duties when
stopping these vehicles. The fourth seizure involved the execution of a search warrant at private premises.
The irony of relying on these seizures, as discussed further below (at paragraph 5.9), is that they did not involve a
cost and resource intensive drug detection operation, but rather, conventional policing by officers acting on intuition
and instinct. Accordingly, it may have been open to the designated officer to question the nature and extent of the
proposed operation given the evidence of seizures from alternate, more cost effective policing activities, which was
included in most applications for authorisation.
However, we note that police were keen to utilise the trial powers and thus no criticism is intended of the decision to
grant the authorisation. Rather, we are simply drawing attention to the fact that the legislation requires the designated
officer to consider the appropriateness of the proposed operation and to have regard to the likelihood of success
when compared to other operations that may be reasonably practicable to conduct for the same purpose.
In addition, we note that the mobile operation authorised by the designated officer — run over three days with 15
officers and a drug detection dog, at an approximate cost of $15,000 — resulted in the seizure of two indictable
quantities of amphetamine.
4.1.4. Report on the conduct and results of drug detection operations
Section 15B of the Drug Detection Trial provides:
Within 14 days after the expiry of an authorisation, the police officer to whom the authorisation was granted
must cause a report to be given to the designated officer who granted the authorisation:
(a) stating whether or not the operation proposed to be carried out under the authorisation was carried
out, and
(b) if the operation was carried out — setting out briefly the result of the operation (including a brief
description of anything seized), and
(c) if the operation was not carried out — setting out briefly the reasons why the operation was not carried
out, and
(d) containing such other particulars as may be prescribed by the regulations.
4.1.4.1. Examination of reports on the conduct and results of operation
Our examination of the reports revealed a high degree of compliance with sub-sections 15B(a)–(c). However, based
on the copies of reports provided to this office, it appears that only one-third (8 of 23) of the reports were given
to the designated officers within 14 days of the expiry of the authorisation. In addition, nine reports contained no
acknowledgement of receipt making it unclear whether they were ever sighted by the designated officer who granted
the authorisation.
In our view, the lack of compliance with section 15B is of serious concern given that designated officers are required
to take into account the results of previous operations when assessing further applications for authorisation. That is
to say, if the designated officer is not apprised of the results of previous operations, this may impact upon their capacity
to assess whether the nature and extent of any future operations is appropriate. In addition, it may also impact on the
designated officer’s consideration of the likelihood of success of the proposed drug detection operation.
NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003
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