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

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3.3.1. Drug premises powers in the Northern Territory In 2002, the Northern Territory amended the Misuse of Drugs Act to enable police to make an application for Drug Premises Orders. This legislation applies to residential, commercial and licensed premises. In Parliament, the Minister for Justice and Attorney General, Dr Toyne, explained why the legislation had been introduced: [the law] targets those suppliers who are able to sustain a drug business network primarily through rented premises. Police advise that dealers in these premises usually operate by having possession of small amounts of prohibited drug at one time so that they can deliberately avoid being caught with a trafficable amount… These dealers set up sales which allow the purchaser and other dealers to attend at the house briefly, purchase the drug and leave. If police attend the premises and charge a person, that person leaves the premises, but the business of dealing is simply taken over by the next person. The premises themselves continue by the strength of their reputation to be the drug premises…Consequently, police have been left with an operational problem concerning proper enforcement on these premises. 129 Unlike similar laws in other states, including NSW, the Northern Territory legislation is not directed toward fortified premises. Instead, the impetus for the introduction of the law appears to have been the resilient nature of drug supply operations from premises. Like NSW, however, police in the Northern Territory had also reported difficulties in proceeding against people found on drug premises for drug offences under existing legislation. The amendments to the Misuse of Drugs Act established two grounds on which police could rely to apply for a Drug Premises Order: • the presence of indicators that premises are being used for supply or • that police suspect the supply of drugs is taking place at the premises and dangerous drugs have been found on three separate occasions within a 12 month period. 130 In respect of indicators that premises are being used for supply, section 11C(1) of the Act sets out 12 indicators that residential premises 131 are being used to supply dangerous drugs: (a) police being prevented, obstructed or delayed from entering or re-entering the premises; (b) the presence of a lookout on or near the premises; (c) the presence on the premises of things used in the supply, manufacture or use of a dangerous drug; (d) the presence on the premises, or in the possession of a person on the premises, of a firearm; (e) the presence of documents or records used in connection with the supply or manufacture of a dangerous drug; (f) amounts of money on the premises that cannot be satisfactorily accounted for by a resident of, or an owner or landlord of, the premises; (g) the presence at the premises of a person or persons who are, or who appear to be, under the influence of a dangerous drug; (h) excessive, frequent or suspicious vehicular or pedestrian traffic to or from the premises; (i) (j) (k) (l) the presence on the premises, or in the vicinity of the premises, of persons known to be involved in the sale or distribution of a dangerous drug; (the presence on the premises of property reasonably suspected of being stolen or of being exchanged in return for a dangerous drug; dangerous drugs have been found on the premises on one or more occasions; other indications such as the construction of the premises, or an internal or external door on the premises, involving a device for preventing, delaying or obstructing entry or for giving alarm. 132 129 Dr Toyne, Justice and Attorney General, Northern Territory Parliamentary Debates, 14 May 2002, http://notes.nt.gov.au/lant/hansard. 130 Misuse of Drugs Act (NT), s. 11D. 131 As noted above, the Misuse of Drugs Act (NT) also applies to commercial or liquor licence premises and Section 11C (2) sets out some of the same criteria to indicate that dangerous drugs are being supplied at or from premises of these types. Criteria include: obstructing police entry to the premises, the presence of a thing connected with the supply, manufacture or use of a drug on the premises, or the presence of a firearm, amounts of money, stolen property or documents used in connection with drug supply. 132 Misuse of Drugs Act (NT) s.11C (1). 34 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
The Act contains four additional indicia of drug premises to those contained in section 11 of the Drug Premises Act. These concern suspicious vehicular or pedestrian traffic, the presence of people known for drug supply on, or in the vicinity of the premises, previous finds of dangerous drugs and stolen property that may have been exchanged for drugs. Police may also seek a Drug Premises Order when they reasonably suspect that the supply of drugs is taking place at the premises, and drugs have been found on the premises on three separate occasions within a 12 month period. To obtain an order in these circumstances, police must have made a record of each seizure and given the affected person, such as the owner, landlord or tenant, a warning at each seizure. 133 An application for a Drug Premises Order is made to a local court with no notice afforded to the person or persons to be affected by the order. 134 The hearing is conducted in camera. 135 A finding that the premises has been used for the supply of drugs may be made even though no finding of guilt has been made on the supply or possession of drugs from the premises. A Drug Premises Order may be made if the court is satisfied on the balance of probabilities that the premises are being used for the supply of drugs. 136 Once a Drug Premises Order is issued, police are required to serve a copy of the order on the owner, landlord or tenant within seven days. 137 If the owner, landlord or tenant objects to the order, they have seven days in which to apply for a revocation of the order. 138 If the order is not revoked, a notice is affixed at the entry of the premises stating it to be a declared drug premises, and any attempt to alter or tamper with the notice will be treated as an offence, punishable by a fine of 200 penalty units or two years imprisonment. 139 The following is a photograph of the notice affixed to the first premises in Darwin affected by such an order: Figure 1. Photograph of notice affixed to first affected premises in Darwin Source: “Darwin’s First Drug House” ABC Local Radio Darwin 3 January 2003 http://www.abc.net.au/nt/stories/s757123.htm Once the notice is affixed, police have the power to enter, search, search persons and seize objects without warrant for 12 months after the order is issued (unless the order is revoked in the meantime). 140 The Act provides that police may obtain a restraining order against a person who has committed a breach of the peace on drug premises. 141 Like the Drug Premises Act, there are also offences for obstructing police from entering drug premises and for warning or giving alarm to others that police are searching drug premises. 142 It is also an offence for a person to fail to give their name and address to police. 143 A person convicted of possession in declared drug premises can be given an aggravated penalty under the Act. 144 The Act also makes accelerated eviction procedures available to landlords. 145 Any person affected by an order may apply to the court for the order to be removed. The court can revoke the order if it is satisfied that the premises are no longer being used as drug premises. 146 Otherwise, an order remains in effect for twelve months after it is issued. 147 133 Misuse of Drugs Act (NT) ss.11D, 11E, 11F & 11G 134 Misuse of Drugs Act (NT) s.11H(1) 135 Misuse of Drugs Act (NT) s.11J(3) 136 Misuse of Drugs Act (NT) s.11K(1) 137 Misuse of Drugs Act (NT) s.11N 138 Misuse of Drugs Act (NT) s.11P 139 Misuse of Drugs Act (NT) s.11Q 140 Misuse of Drugs Act (NT) s.11R 141 Misuse of Drugs Act (NT), s.11T. 142 Misuse of Drugs Act (NT), s 11S. 143 Misuse of Drugs Act (NT) s.11S 144 Northern Territory Government Fact Sheet: Misuse of Drugs Act – Drug House Laws. 145 Misuse of Drugs Act (NT) s.11U 146 Misuse of Drugs Act (NT), s.11P 147 Misuse of Drugs Act (NT) s.11M NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 35
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 and 32: The table below sets out the penalt
Page 33: (c) that the nature and extent of t
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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