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

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Several community leaders we spoke to also said that the numbers of drug premises in Cabramatta had been reduced since the Drug Premises Act came into operation. A local businessman and campaigner on policing issues in the area said that there had been a reduction in the availability of heroin that has been attributable to the law and “there are no are no longer queues outside drug premises”. 704 However, he questioned both the number of drug houses that had been shut down, and the reasons for their closure: Not the number police claim of drug houses have been shut down, many drug houses have been closed down because of the heroin drought … but there also was active targeting and they did close down a number. 705 A community leader and Fairfield City Councillor 706 also agreed that the drug trade was now much less obvious, but queried police figures on the numbers of drug premises that had been shut down. He said that “the numbers of houses that are claimed to have been closed down are not quite equating with what other people are saying in the Fairfield area”. But, at the same time, he was surprised that the Act had not been used more often: I am quite surprised that given that the police asked the government to give them these new powers based on the fact that they claimed that there were many known drug houses in Cabramatta and that the existing laws that police had were inadequate to close them down, police went to the government and asked for more powers. I am quite surprised that the number of drug houses that they have used the powers on have been quite few. 707 7.8.6. Conclusion Our review has not found any instances where the application by police of the Drug Premises Act has been inappropriate. Although there are identified information gaps (see Chapter 2), the information we have received suggests police have generally implemented the legislation fairly. There is a clear impact of the legislation on young persons, and persons of Asian background in Cabramatta. However, there is no indication of any inappropriate targeting of persons by police. We have recommended a review of the reverse onus provisions in section 12 of the Act , and believe this will not reduce the effectiveness of the Act. 704 Interview, Local business leader, 16 September 2003. 705 Ibid. 706 Cabramatta is within the Local Government Area (LGA) of Fairfield Council. 707 Interview, Local community leader and Fairfield City councillor, 16 September 2003. 130 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
Chapter 8. Targeting drug supply Parliamentary debate on the Drug Premises Act indicates that the legislation was aimed at major and organised criminals who are operating drug premises. The understanding that the Act would be particularly useful in dealing with this type of offender was reflected in references made to drug barons, major and organised criminals, the big end of town and to professional criminality in debate about the Act. Concerns expressed by some parliamentarians about certain aspects of the legislation, such as the reversal of the onus of proof, 708 appeared to be assuaged by the assurance that the Act would assist police in dealing with this type of offender. One member of parliament, for example, who considered that aspects of the legislation constituted a departure from fundamental principles of criminal justice, conceded that the law may nonetheless “be justified by the need for effective powers to combat the drug trade”. 709 There were also concerns expressed in parliamentary debate, and in submissions to our discussion paper, that the legislation may target user/ dealers, instead of high level drug suppliers. Not all aspects of the illicit drug trade are targeted by the Act. Cannabis leaf, resin and oil have been excluded from the application of the legislation. 710 In the second reading speech, the Attorney General explained that these substances were excluded because they “are not usually a feature of the drug premises that the bill is aimed at”. 711 Some police have been critical of the exclusion of cannabis from the Act. In this chapter, we will examine the level of drug supply that the Drug Premises Act appears to be targeting. It is important to note, however, that NSW Police have in most instances only provided information about uses of the Act where charges have been laid. 712 8.1. Organised and professional criminals and high level drug supply Assessing the level of drug supply that the Drug Premises Act is targeting was an important research question for this review. However, before considering the data that we have collected to examine this question, it is worthwhile outlining the methodological issues that arise in assessing the level of drug supply that is being targeted. While an important objective of the Drug Premises Act was to target major and organised criminals operating drug premises, there are no clear, consistent definitions of what constitutes an offender of this type. The terms organised crime and organised criminal are rarely defined in media or public debate, or by law enforcement agencies themselves. 713 A recent article made this point, and noted the difficulties of categorising particular types of criminal activity as organised crime: Organised criminals are offenders who possess a reasonable degree of skill and organisational ability and may share a cultural orientation with co-offenders (Sterling 1991; Hobbs 1994). Whether their offending should be labelled organised crime is open to debate. Certainly some drug criminals have described themselves as participating in organised crime when they were organised only to the extent that they had engaged in some planning and negotiation to transport and sell the drugs (Ovenden et al 1992). 714 There was a consensus among several senior police we spoke to for this review that the operation of drug premises constituted a form of organised criminal activity. One senior officer from the Cabramatta LAC said that “the drug premises do require a certain amount of organisation, because you need to have access to the unit in the first place, particularly to lease them”. 715 The commander of the Drug Squad had a similar view, and believed that those who operate drug premises were doing so to earn a living from it: If someone is going to go to the trouble to operate a drug house, within its definition, I think then by definition, that person is an organised criminal, they’re showing that they have given some considerable thought to how to get around law enforcement intervention and make things difficult, they are not just doing it just to support a habit, it is people who are making a livelihood out of selling drugs. Just as I do my job, and put processes in place and do things to make sure things operate efficiently and problems don’t occur for me, these people do the same, they put systems in place. 716 According to this definition, all of those people who operate drug premises are organised criminals. 708 See chapter, “Offences in the Drug Premises Act” for a discussion of the reversal of the onus of proof in several offences in the Act. 709 Ms M. Moore, NSWPD, 6 June, p. 14507. Ms Moore, MLA, also recommended changes to the Bill that aimed to provide additional safeguards to the powers contained in the legislation. 710 Police Powers (Drug Premises) Act, s. 3. 711 The Hon R. Debus, second reading speech, NSWPD, 30 May 2001, p. 13998. 712 Two LACs that we audited advised us of instances in which a Drug Premises warrant was executed, but no charges were laid. The limitations in the information provided to us for this review are discussed in the Chapter, “Methodology”. 713 Lorraine Beyer, “Organised crime and illegal drug importation: challenges in analysis”, Journal of the Australian Institute of Professional Intelligence Officer, Vol. 10 No 2, 2002. 714 Ibid. 715 Interview, former crime manager, Cabramatta LAC, 21 August 2003. 716 Interview, Commander, Drug Squad, 30 September 2003. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 131
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Review of the Police Powers (Drug P
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Contents Preface ..................
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Chapter 11. Drug move-on powers in
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Acknowledgements This report was re
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Part One. Background. Chapter 1. In
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Drug offences, unlike for example,
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elieve is in a public place with th
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Chapter 2. Methodology In this chap
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2.3.5. Health data NSP distribution
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As the table indicates, more than o
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2.4.7. Complaints The NSW Ombudsman
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NSW Police advised us that calculat
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Another data limitation is that COP
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Chapter 3. Legislative survey This
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Once police have entered the suspec
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The table below sets out the penalt
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(c) that the nature and extent of t
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The Act contains four additional in
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A fortification removal notice is r
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For example, section 39(3) of the Q
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Part Two. Drug premises Chapter 4.
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In the police training manual on th
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Case study 2. Drug premises search
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4.2.4. Presenting the application b
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A Crime Manager we interviewed from
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applications. In this Act, an inves
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Chapter 5. The definition of drug p
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5.2. Recommendation That Parliament
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5.5.2. Section 11(2)(b): fortificat
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In our chapter on Cabramatta, we di
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The woman was found guilty of allow
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5.5.5. Means or devices for drug us
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Number of Premises Figure 7. Razor
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However, no other evidence of drug
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• magnum revolver and a 0.357 mag
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5.5.8. Section 11(2)(g): large amou
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The magistrate noted that there wer
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In relation to the money located on
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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: By way of comment, the continuing a
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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