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

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The Search Warrants Act allows police to apply for a search warrant that relates to particular things that they believe may be on the premises. For example, in drug investigations, police may apply for a warrant under the Search Warrants Act if they believe that a thing connected with a particular narcotics offence, such as a quantity of heroin, will be on the premises in the next 72 hours. The main difference between this Act, and the Drug Premises Act, is that the Drug Premises Act allows police to apply for a warrant when they believe that a premises is being used for a particular purpose. According to the Drug Premises Act, police are not required to have reasonable grounds for believing a particular thing is on the premises in order to apply for a search warrant. During the review period, there were occasions in which police chose to apply for a warrant to search drug premises under the Search Warrants Act, rather than the Drug Premises Act. We discuss reasons why this occurred later in this report. 114 3.2.2. The Drug Misuse and Trafficking Act 1985 The principal drug legislation in NSW is the Drug Misuse and Trafficking Act 1985 (the Drug Misuse and Trafficking Act). 115 Supply, possession, manufacturing and a number of other offences relating to prohibited drugs are contained within this Act. During the review period, police often laid charges under the Drug Misuse and Trafficking Act against persons found on drug premises. A prohibited drug is any substance included in Schedule 1 of the Drug Misuse and Trafficking Act, and includes substances like heroin, cocaine, methylamphetamine and cannabis. 116 This Act provides graduated penalties according to the quantity of the particular prohibited drug that is involved in an offence, so offences involving larger quantities of prohibited drugs attract more serious penalties. 117 Other offences contained in the Drug Misuse and Trafficking Act include ongoing supply which attracts a maximum penalty of 20 years. This charge was sometimes laid if police conducted three or more undercover drug purchases from an occupant of a suspected drug premises. 118 Like the Drug Premises Act, the Drug Misuse and Trafficking Act also contains search powers in relation to prohibited drugs. These powers enable police to conduct searches of people, vehicles, vessels and aircraft without a warrant. Police may stop, search and detain any person who the officer reasonably suspects of possessing a prohibited drug or plant, or any vehicle which the officer reasonably suspects of containing a prohibited plant or drug. 119 An officer of the rank of sergeant or above may also enter and search any vessel or aircraft which the officer reasonably suspects of containing any prohibited plant or prohibited drug. 120 3.2.3. Law Enforcement (Controlled Operations) Act 1997 Undercover police sometimes conducted controlled drug buys from suspected drug premises to obtain evidence to apply for a drug premises search warrant. The Law Enforcement (Controlled Operations) Act 1997 (the Controlled Operations Act) regulates controlled operations. A controlled operation can be conducted for a range of purposes, including “obtaining evidence of criminal activity”. 121 This Act enables police to apply to the Commissioner for the authority to conduct a controlled operation. 122 Applications must include information including a plan of the proposed operation and the nature of the criminal activity that it relates to. 123 According to the Act, an authority to conduct a controlled operation must not be granted unless the Commissioner is satisfied that: (a) there are reasonable grounds to suspect that criminal activity or corrupt conduct has been, is being or is about to be conducted in relation to matters within the administrative responsibility of the agency, (b) that the nature and extent of the suspected criminal activity or corrupt conduct are such as to justify the conduct of a controlled operation, 114 See chapter, “Drug Premises Search Warrants”. 115 Supply, possession, and a number of other offences relating to prohibited drugs are contained within the Drug Misuse and Trafficking Act. 116 Drug Misuse and Trafficking Act, s. 3. Offences that relate to the supply and distribution of pharmaceuticals and poisons are contained in the Poisons and Therapeutic Goods Act 1966. This Act regulates “prescribed restricted substances” such as testosterone. 117 Peter Zahra, Robert Arden, Mark Ierace and Beverly Schurr, Drug Law in NSW, Second Edition, Federation Press, Sydney, 1999, p. 3. 118 Drug Misuse and Trafficking Act, s. 25A. 119 Drug Misuse and Trafficking Act s. 37(4). 120 Drug Misuse and Trafficking Act s. 37(2), (3) 121 Law Enforcement (Controlled Operations) Act, s. 3. 122 Law Enforcement (Controlled Operations) Act, s. 5. 123 Law Enforcement (Controlled Operations) Act, s. 5 (2A). 123 Law Enforcement (Controlled Operations) Act, s. 5 (2A). 32 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
(c) that the nature and extent of the proposed controlled activities are appropriate to the suspected criminal activity or corrupt conduct, (d) that the proposed controlled activities will be capable of being accounted for in sufficient detail to enable the reporting requirements of this Act to be fully complied with. 124 Written authorities may be granted authorizing the conduct of a controlled operation for a period of up to six months. 125 3.2.4. Restricted Premises Act 1943 Prior to the enactment of the Drug Premises Act, police attempted to use the Restricted Premises Act (formerly known as the Disorderly Houses Act) to deal with drug premises. Under this Act, police may apply to the Supreme Court for an order to declare that premises is a disorderly house. While the Restricted Premises Act is the main legislative instrument that regulates brothels in NSW, the Act also contains provisions that relate to disorderly houses that are being used for drug supply. One of the grounds upon which premises may be declared a disorderly house is if a drug is unlawfully sold or supplied on or from the premises or is likely to be sold again on or from the premises. Two of the indicia that may be used as evidence that premises is a disorderly house are similar to those in the Drug Premises Act that relate to fortifications and items used in connection with drug supply. 126 A police officer of or above the rank of sergeant can apply to the Supreme Court or a District Court for a disorderly house declaration to be made. We understand that NSW Police believed that the requirement that an application must be made to the Supreme Court rendered the legislation impractical in relation to drug premises. Like the Drug Premises Act, the Restricted Premises Act also requires that an officer of or above the rank of sergeant make an application to a court in order to exercise the powers in the Act. If the Supreme Court determines that there are reasonable grounds for suspecting that a premises is a disorderly house, a police officer may fix a notice to the premises. While the disorderly house declaration is in force, police are able to search the premises without a search warrant. Like the Drug Premises Act, this legislation also contains offences that may render owners and occupiers liable for their involvement in the disorderly house. 127 A significant amendment was made to the Restricted Premises Act in 2002 that provides for the closure of commercial premises that are being used for drug supply for a period of up to 72 hours. These powers were intended to assist police in dealing with premises like the so-called “cannabis cafes” in Kings Cross. A magistrate may, on an application made by a police officer of or above the rank of sergeant, issue an order under Section 15C of the Act that the owner or the occupier of a premises close the premises for up to 72 hours if the officer provides reasonable grounds for suspecting that the premises are being used: (a) to supply prohibited drugs unlawfully to persons, or (b) to keep prohibited drugs to enable their unlawful supply to persons, or (c) to make arrangements for the unlawful supply of prohibited drugs to persons at another place. 128 Once issued, a declaration that a commercial premises is a restricted premises authorises police to enter and search the premises without a warrant at any time while the declaration is in force. 3.3. What similar powers operate elsewhere in Australia Since July 2001 when the Drug Premises Act commenced in NSW, similar laws have been passed in three other jurisdictions in Australia. In 2002, legislation was passed in the Northern Territory that enables police to apply for Drug Premises Orders. In the same year, the Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002 was passed in Western Australia, and in 2003, the Statutes Amendment (Anti-Fortification) Act was passed in South Australia. Each of these laws is discussed below. 124 Law Enforcement (Controlled Operations) Act, s. 6(3). 125 Law Enforcement (Controlled Operations) Act, s. 8 (2)(g). 126 Restricted Premises Act, s. 12. 127 Restricted Premises Act, sections 8 and 9. 128 Restricted Premises Act, s. 15C. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 33
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 and 12: Drug offences, unlike for example,
Page 13 and 14: elieve is in a public place with th
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: The table below sets out the penalt
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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