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

We sought the NSW Police Force view of the appropriateness and lawfulness of the practice of using non-police
handlers and dogs to exercise functions under the Drug Detection Trial Act and received the following response:
The NSWPF has no issues with the use of an Australian Customs drug detection dog and handler for operations
under the [Drug Detection Trial] Act. Ownership of the dog does not affect the ability of the customs dog to fulfil
the role of a ‘dog’ under the [Drug Detection Trial] Act.
Although the Act makes it clear that the use of a dog for drug detection is a function to be exercised by a police
officer, the Act makes it clear provision for the use of assistants (see section 18A). The use of Customs drug
detection dogs and handlers to assist police in the exercise of functions under the Act is therefore, lawful. 200
In our view, section 18A appears to provide a relatively wide scope for the type of assistants that police may utilise
when conducting general drug detection. Accordingly, the NSW Police Force view of the use of non-police assistants
to conduct general drug detection appears to be consistent with the legislation.
However, we note that it may be possible to argue that the Customs dog handler is doing more than assisting a
police officer when participating in a drug detection operation. For example, it could be argued that the Customs
dog handler, who is physically in control of the dog on a lead and is encouraging it to seek out drugs, is actually
exercising the function in section 9(1)(c). If this is the case, compliance with the safeguards in section 9(3) would
be problematic.
Similarly, it could also be argued that the Customs dog handler is fulfilling the obligation to take all reasonable
precautions to prevent the dog touching a person and to keep the dog under control pursuant to section 11(2) given
that he or she is physically in control of the dog on a lead.
In Harnett v State of New South Wales, a case that considered the meaning of a similar provision to that contained in
section 18A, his Honour Dunford J observed:
… an assistant is someone who assists and a distinction is to be drawn between an assistant who acts
with and helps a principal and a delegate or representative or agent who acts in place of the principal. 201
[Original emphasis.]
In Harnett the principal was not physically present during the operation under consideration, which is unlike the
situation here where a police officer is physically present when the Customs dog handler and dog screen vehicles.
We note that Part 11, Division 2 of the Law Enforcement (Powers and Responsibilities) Act 2002, which authorises
the use of drug detection dogs in public places, does not permit police to use assistants. 202 Accordingly, it may
be prudent for the NSW Police Force to seek further legal advice on this issue given that it is not uncommon for
police in the non-metropolitan regions to utilise the services of non-police dogs and handlers — see below (at
paragraph 5.5.6.1).
4.2.6. Requesting to see the authorisation
The Drug Detection Trial Act, unlike its predecessor Border Areas Trial Act, 203 does not contain a legal requirement
to produce a copy of the authorisation if requested. However, the SOPs for the drug detection trial contain the
following instruction:
Duty to show authorisation — The officer in charge of each search area will show the authorisation to any
person in the search area who requests to see it. 204
At one drug detection operation a heavy vehicle driver requested to see the authorisation. After a short period of
time, the authorisation was located and shown to the driver who read it and thereafter thanked police. 205
4.2.7. Reasonable suspicion to search
The Drug Detection Act does not create any new search powers for police. 206 The SOPs for the drug detection trial
contains the following advice for police:
If, during the course of the use of the dog for general drug detection, the dog exhibits behaviour it is trained to
exhibit when it detects a prohibited drug or prohibited plant, this fact may well give rise, in the mind of a police
officer, to the requisite reasonable suspicion to lawfully search the subject vehicle or person. 207
The SOPs also advise police that there must be a ‘factual basis for searching police to have a reasonable suspicion of the
presence of a prohibited drug or prohibited plant in the vehicle or on the person to be searched.’ 208 [Emphasis added.]
In addition, NSW Police Force policy recommends that any information utilised by the officer in forming a reasonable
suspicion that there may be drugs in a vehicle or in the possession or control of a person be included in the COPS entry. 209
NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003
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