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

Sub-section 10(1) appears to suggest, by the use of the verbs ‘remove’ and ‘re-establish’ that some police presence
is required at an established check point. There must be something there to be moved that assists the stopping and
searching function. If it is only the actual presence of police officers, the act of leaving a check point unattended may
suggest that it has been removed and that it will be re-established if and when police return.
In addition, sub-section 10(2) refers to the obligation of a police officer who establishes a check point to ensure
the safety of persons approaching the check point, which may arguably require the officer to be at the check point
to fulfil this obligation. However, it is also arguable that police may fulfil this obligation by conducting site and risk
assessments of suitable check points before the commencement of an operation and employing safe stopping
procedures when escorting a vehicle to the check point. This latter interpretation appears to accord with the intention
of Parliament to increase the flexibility and mobility of operations and make them less predictable and more difficult
to evade. 171
The NSW Police Force expressed the following view about the establishment of check points: 172
The major consideration when establishing the operation site and area is the opportunity to safely stop and
process the target vehicle. The locations of check points should be established in advance of the operation,
marked on a map of the search area and included in the operational orders. These sites are risk-assessed to
ensure their suitability.
The senior police officer at each check point will ensure that adequate measures are taken to ensure the
safety of vehicles approaching, and travelling through, the check point. Every vehicle stop at an established
check point should be conducted safely and in accordance with the NSWPF Motor Vehicle Stopping
Techniques and Procedures.
… there are significant human and other resources required to conduct a [drug detection trial] operation. The
physical requirements for a static location are similar to those of a large RBT site, although the requirement
for ‘hot’ and ‘cold’ zones does complicate the issue and the availability of suitable sites. The use of a
mobile strategy further adds to the complexity of the operation but as with all aspects of this operation, and as
observed by the Ombudsman, police perform all duties in line with requisite OH&S and safety requirements.
4.2.2. Operations on privately-owned land
Section 9(1)(c) of the Drug Detection Trial Act gives police the power to conduct general drug detection in authorised
search areas. Section 7 requires that the search area be located in an ‘outer metropolitan area’ and that it not be
more than 5 square kilometres in area.
Section 3(1) defines ‘outer metropolitan area’ as any land within this State that is located outside the metropolitan
area of the State.
The reference to any land in the definition of outer metropolitan area appears to suggest that police may have the
power to conduct operations at or on privately owned land that forms part of the authorised search area.
For example, police conducted operations at four different petrol station truck stops during the review period. These
truck stops, or roadhouses, are privately owned yet are open to the public. 173
We asked the NSW Police Force for their view on whether police are lawfully entitled to enter privately owned land
situated in a search area specified in an authorisation. We also asked if the fact that the privately owned land is
open to the public influenced their view.
The NSW Police Force view is:
The [Drug Detection Trial] Act does not give police the power to enter private premises without the permission
of the owner. For example, police could not enter a private residence situated within a search area to conduct
general drug detection in relation to a vehicle parked in the garage on the premises. To enter such premises
without consent would amount to trespass.
Where privately owned land is open to the public, police (as members of the public) may enter onto such land.
However, where the consent to enter or remain on the land is withdrawn by the owner or occupier, police would
be compelled to leave unless another ground for staying had been established, such as the establishment of a
crime scene. 174
The authorisation granted for an operation at a truck stop contained the following condition: 175
In respect to [the truck stop] — in my view, although it is strictly unnecessary to seek permission to enter the
land to establish the check point, it may be preferable that police (upon establishing the check point at [the
truck stop]) advise the operator of the [name of petrol station] what is occurring. In doing this, police should be
NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003
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