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

Once police have entered the suspected drug premises, according to section 7 of the Act, they are empowered to do any or all of
the following:
(a)
search any person on the premises, and
(b) arrest or otherwise proceed against any person on the premises, and
(c) seize any firearm or other thing found on the premises that the police officer has reasonable grounds for believing is
connected with an offence, and
(d) without limiting paragraph (c), seize any prohibited drug and money found on the premises and any syringe or other thing that
is kept or used in connection with, or that relates to, any activity prohibited by or under the Drug Misuse and Trafficking Act
1985, and
(e) require any person on the premises to state his or her full name and residential address. 93
3.1.2. Offences created by the Drug Premises Act
There are several key offences that are created by the Drug Premises Act.
Section 12 of the Act provides:
12. Offence of entering, or being on, drug premises
(a) A person who is found on, or who is found entering or leaving, drug premises is guilty of an offence. 94
Secondly, the Act includes the offence of allowing premises to be used as drug premises. Section 13 of the Act provides:
A person who is the owner or occupier of any premises must not knowingly allow the premises to be used as drug premises. 95
The third key offence in the Act is the offence of organizing, conducting or assisting drug premises. Section 14(1) of the Act provides:
A person must not organise or conduct, or assist in organizing or conducting, any drug premises.
A person cannot be convicted of these offences in the Drug Premises Act unless it is first proven that premises are drug premises. The
Act reads as follows:
A court must not find a person guilty of an offence against this Part unless the prosecution satisfies the court beyond a reasonable
doubt that at the time the offence is alleged to have been committed any premises involved in the offence were being used for the
unlawful supply or manufacture of a prohibited drug. 96
In determining whether premises were used for the purposes of drug manufacture or supply, a court may have regard to any or all of the
indicia in section 11 of the Act. However, the court is not limited to these indicia in determining if premises are drug premises.
On certain matters relevant to determining whether the offences of being found on drug premises and of organising drug premises have
been committed, the onus of proof rests on the accused. For example, section 12(2) of the Act provides that:
(2) A person is not guilty of an offence under this section if the person satisfies the court that he or she was on, or was entering or
leaving, the drug premises for a lawful purpose, or with a lawful excuse. 97
Therefore, if a person is found on, entering or leaving drug premises, under section 12(2) they have a statutory defence available to them
if they can prove that they had a lawful purpose or excuse to be on the premises. If a person is charged under section 14 with organising,
conducting, or assisting in organising or conducting drug premises, they also have a statutory defence available to them. Subsection
14(3) stipulates that a person cannot be found guilty of this offence if they satisfy the court that they did not know and could not
reasonably be expected to have known, that the premises were drug premises. 98 The standard to which the accused must establish their
93 Police Powers (Drug Premises) Act, s. 7.
94 Police Powers (Drug Premises) Act, s. 12(1).
95 Police Powers (Drug Premises) Act, s. 13.
96 Police Powers (Drug Premises) Act, s. 11(1).
97 Police Powers (Drug Premises) Act, s. 12 (2).
98 Police Powers (Drug Premises) Act, s. 14 (3).
NSW Ombudsman
Review of the Police Powers (Drug Premises) Act 2001 29