Review of the Police Powers (Drug Premises) Act 2001 - NSW ...

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• new police powers in respect of drug houses • an extension of police powers to issue reasonable directions under the Summary Offences Act, empowering police to move-on people buying or selling prohibited drugs and • new police powers for internal searches of persons suspected of having internally concealed an illegal drug for the purposes of supply, to be conducted by medical practitioners. 20 In sum, the Criminal Justice Plan involved the introduction of two new drug laws aimed at countering several different aspects of the drug trade. The remainder of the Cabramatta Anti-Drug Strategy involved drug treatment and prevention initiatives. Stage two involved a compulsory treatment plan, known as the Magistrates Early Referral Into Treatment Scheme (MERIT) and stage three was a plan for prevention and early intervention. The Drug Premises Act was debated in Parliament in June 2001, and commenced on 1 July 2001. The application of the law is Statewide. When the law was introduced in Parliament, the Attorney General stated that the government was “legislating to ensure that drug dealers are caught across the state”. 21 It should be noted that the Law Enforcement Powers and Responsibilities Act 2002 (LEPRA) repeals the Drug Premises Act. However, LEPRA has not yet commenced. Sections 140, 141, 142 and 143 of LEPRA substantially re-enact sections 5, 6, 7 and 9 of the Drug Premises Act which deal respectively with the issue of drug premises search warrants, the execution of drug premises search warrants, the search and arrest of persons during the execution of drug premises search warrants, and the offence of obstructing police executing a drug premises search warrant. LEPRA also provides for the insertion of a new Part 2B into the Drug Misuse and Trafficking Act 1985 which re-enacts the provisions of Part 3 of the Drug Premises Act that deal with the various offences involving drug premises. 1.3. The provisions of the Drug Premises Act 1.3.1. Drug premises search warrants The Drug Premises Act gives police powers in respect of drug houses, referred to in the legislation as drug premises. In the Act, drug premises are defined as any premises “used for the unlawful supply or manufacture of any prohibited drugs”. 22 The Act creates a new type of search warrant. Previously, if a search warrant was required in a drug investigation, a warrant could be applied for under the Search Warrants Act 1985. This would authorise police to enter and search premises for particular things, such as a “thing connected with a particular narcotics offence”. 23 The new Act creates a drug premises search warrant, authorising police to enter and search premises if they have reasonable grounds for believing that the premises are being used for the unlawful manufacture or supply of a prohibited drug. 24 Police adopt what they have described as a two-stage approach to the “gathering of evidence to prove that premises are drug premises”. 25 Firstly, they must gather evidence that can be used in an application for a search warrant. This evidence must be sufficient to satisfy a magistrate that police have reasonable grounds for believing premises are drug premises. 26 If the search warrant is granted, police have the opportunity to gather further evidence that premises are drug premises. 1.3.2. Drug move-on powers In addition to creating powers in respect of drug houses, the Drug Premises Act also gives police powers to deal with the street-level drug trade. By amending section 28F of the Summary Offences Act, the Drug Premises Act extends police powers to issue reasonable directions to people in public places. These provisions are usually referred to as the move-on powers. Under the new drug move-on provisions, police may issue a direction to a person if police have reasonable grounds to believe that they are in a public place for the purpose of buying or selling drugs. 27 A police officer may, for example, issue a direction to a person they 20 The Police Powers (Internally Concealed Drugs) Act 2001 commenced on 1July 2002 and is also being monitored by the NSW Ombudsman. 21 The Hon. R. Debus, second reading speech, NSWPD, 30 May 2001, p. 13997. 22 Police Powers (Drug Premises) Act, s. 3(1). 23 Search Warrants Act, s. 5(1)(c). 24 Police Powers (Drug Premises) Act, s. 5(1). 25 NSW Police, Mandatory Continuing Police Education Scheme Package, Police Powers (Drug Premises) Act, 2001, p. 11. 26 Police Powers (Drug Premises) Act, s. 5(1) and s. 5(2). 27 Summary Offences Act, s 28F(1)(d) and (e). 12 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
elieve is in a public place with the intention of supplying drugs, to leave the area for a prescribed period of time. Police may issue a similar direction to a person who they believe is in a public place for the purpose of buying prohibited drugs. These new drug move-on provisions aim to assist police in dealing with drug transactions that occur in public places. 28 1.3.3. Offences and penalties created by the Drug Premises Act The Act creates several key offences relating to drug premises. These offences are: • being on, entering or leaving drug premises 29 • allowing use of premises as drug premises 30 and • organising drug premises. 31 A person cannot be convicted of any of the above offences unless it is first proven in court that premises are drug premises. 32 Several other offences in the Act relate to the obstruction of police during the execution of the search warrant. A person may be convicted of these offences even if premises are not proven to be drug premises. It is also an offence to disobey a drug related reasonable direction (also known as a drug move-on), provided that it has been issued in accordance with the Act. 33 There is no custodial penalty for this offence. 28 The Hon. R. Debus, NSWPD, 30 May 2001, p. 13999. 29 Police Powers (Drug Premises) Act, s. 12. 30 Police Powers (Drug Premises) Act, s. 13. 31 Police Powers (Drug Premises) Act, s. 14. 32 Police Powers (Drug Premises) Act, s. 11(1). 33 Summary Offences Act, s. 28F(6). Disobeying a reasonable direction is only an offence if the police officer has complied with certain procedural requirements when they issue the direction, and if after giving a first direction, “the person initially refuses to comply, the police officer may again give the direction and, in that case, warn the person that failure to comply with the direction may be an offence.” Summary Offences Act, s. 28F(5). NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 13
Page 1 and 2: Review of the Police Powers (Drug P
Page 3 and 4: Contents Preface ..................
Page 5 and 6: Chapter 11. Drug move-on powers in
Page 7 and 8: Acknowledgements This report was re
Page 9 and 10: Part One. Background. Chapter 1. In
Page 11: Drug offences, unlike for example,
Page 15 and 16: Chapter 2. Methodology In this chap
Page 17 and 18: 2.3.5. Health data NSP distribution
Page 19 and 20: As the table indicates, more than o
Page 21 and 22: 2.4.7. Complaints The NSW Ombudsman
Page 23 and 24: NSW Police advised us that calculat
Page 25 and 26: Another data limitation is that COP
Page 27 and 28: Chapter 3. Legislative survey This
Page 29 and 30: Once police have entered the suspec
Page 31 and 32: The table below sets out the penalt
Page 33 and 34: (c) that the nature and extent of t
Page 35 and 36: The Act contains four additional in
Page 37 and 38: A fortification removal notice is r
Page 39 and 40: For example, section 39(3) of the Q
Page 41 and 42: Part Two. Drug premises Chapter 4.
Page 43 and 44: In the police training manual on th
Page 45 and 46: Case study 2. Drug premises search
Page 47 and 48: 4.2.4. Presenting the application b
Page 49 and 50: A Crime Manager we interviewed from
Page 51 and 52: applications. In this Act, an inves
Page 53 and 54: Chapter 5. The definition of drug p
Page 55 and 56: 5.2. Recommendation That Parliament
Page 57 and 58: 5.5.2. Section 11(2)(b): fortificat
Page 59 and 60: In our chapter on Cabramatta, we di
Page 61 and 62: The woman was found guilty of allow
Page 63 and 64:
5.5.5. Means or devices for drug us
Page 65 and 66:
Number of Premises Figure 7. Razor
Page 67 and 68:
However, no other evidence of drug
Page 69 and 70:
• magnum revolver and a 0.357 mag
Page 71 and 72:
5.5.8. Section 11(2)(g): large amou
Page 73 and 74:
The magistrate noted that there wer
Page 75 and 76:
In relation to the money located on
Page 77 and 78:
5.7.6. Cars as drug premises As we
Page 79 and 80:
… rather than being on the edge o
Page 81 and 82:
Chapter 6. The Drug Premises Act -
Page 83 and 84:
• the offence of being found on,
Page 85 and 86:
With reverse onus, we didn’t have
Page 87 and 88:
In the following section, we will d
Page 89 and 90:
Officers from the State Crime Comma
Page 91 and 92:
The second reading speech, which gi
Page 93 and 94:
In the granny flat, police found ca
Page 95 and 96:
Table 6. Pleas entered and court ou
Page 97 and 98:
The magistrate said that he had a r
Page 99 and 100:
13. Allowing use of premises as dru
Page 101 and 102:
The defendant says he was not there
Page 103 and 104:
Figure 13: Ages of people charged w
Page 105 and 106:
Table 12. Number of charges for var
Page 107 and 108:
Chapter 7. Cabramatta 7.1. Introduc
Page 109 and 110:
No. of Drug Premises Figure 14: Num
Page 111 and 112:
Table 13. Information about drug pr
Page 113 and 114:
It should be clear that this legisl
Page 115 and 116:
The unit was in disarray, with spar
Page 117 and 118:
7.5. Level of drug supply the law i
Page 119 and 120:
7.5.3 Firearms, weapons and high le
Page 121 and 122:
7.6. Charges laid under the Drug Pr
Page 123 and 124:
7.6.4. Young Asian people and drug
Page 125 and 126:
Of these 52 people, 31 people pled
Page 127 and 128:
7.8. Conclusion: Impact of the Drug
Page 129 and 130:
By way of comment, the continuing a
Page 131 and 132:
Chapter 8. Targeting drug supply Pa
Page 133 and 134:
Table 18. Drug Misuse and Trafficki
Page 135 and 136:
Low level drug suppliers are more l
Page 137 and 138:
Other forms of organisation in evid
Page 139 and 140:
Table 19. Drugs Located, State-wide
Page 141 and 142:
Table 23. Drugs located, Northern R
Page 143 and 144:
However, the submission concluded b
Page 145 and 146:
To begin with, telephone intercepts
Page 147 and 148:
The prohibited drugs that were loca
Page 149 and 150:
One factor that appears to have per
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