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

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3.4. Drug move-on powers In addition to creating new powers in respect of drug houses, the Drug Premises Act also gives police new powers to deal with the street-level drug trade. By amending section 28F of the Summary Offences Act 1988, the Act extends police powers to issue reasonable directions to people in public places. These provisions are commonly referred to as move-on powers. According to the original move-on powers in the Summary Offences Act, police could issue a direction in instances where a person’s behaviour or presence in a public place constituted obstruction, harassment or intimidation, or caused fear. 162 These criteria are referred to in the legislation as relevant conduct. The Drug Premises Act extends the definition of relevant conduct for which police may issue a direction to include drug related activity: 28F. (1) A police officer may give a direction to a person in a public place if the police officer has reasonable grounds to believe that the person’s behaviour or presence in the place (referred to in this section as “relevant conduct”): … (d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or (e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess. 163 When issuing a direction under section 28F, police must comply with certain procedural requirements. These requirements stipulate that prior to issuing a direction, a police officer must provide evidence that they are a police officer and give their name and place of duty. The officer must also give the reason for the direction and warn that failure to comply may be an offence. 164 Section 28F of the Act does not provide specific guidance on what type of direction police can give, just that the direction must be reasonable in the circumstances for the purposes of: (b) stopping the supply, or soliciting to supply, of the prohibited drug, 165 or (c) stopping the obtaining, procuring or purchasing of the prohibited drug. 166 Under Section 28F(6), failure to obey a reasonable direction is an offence. An offence has been committed if a police officer issues two directions to move-on, and the person continues to disobey the direction without a reasonable excuse. 167 It is important to note, however, that a person is only guilty of an offence if they continue to engage in the relevant conduct after the direction was issued. 168 No custodial penalty applies to this offence, and the maximum penalty is a fine of $220. 169 3.4.1. Move-on powers interstate Several jurisdictions have move-on powers, though unlike the NSW legislation, these powers do not concern drug related activity in public places. The move-on powers in other jurisdictions more closely resemble the original move-on powers in the NSW Summary Offences Act that relate to creating an obstruction, intimidation or causing fear. What is interesting about some of the laws in other jurisdictions is that they provide specific guidance to police about the type of direction they can give. This is pertinent to our review because the types of directions that were issued by police under the Drug Premises Act emerged as a key issue in this review. 162 Summary Offences Act s 28F (a), (b) and (c). 163 Summary Offences Act, s 28F(1) (d) and (e). 164 Summary Offences Act, s 28F(4). 165 Summary Offences Act, s. (3)(b). 166 Summary Offences Act, s. 3(c). 167 Summary Offences Act, s. 28F(6). 168 Summary Offences Act, s. 28F(7). 169 Summary Offences Act, s. 28F(6). 38 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
For example, section 39(3) of the Queensland Police Powers and Responsibilities Act 2000 provides the following guidance to police: … a direction may require a person to do either of the following-- a. leave the prescribed place and not return within a stated reasonable time of not more than 24 hours; b. move from a particular location for a stated reasonable distance, in a stated direction, and not return or be within the stated distance from the place for a stated reasonable time of not more than 24 hours. 170 In addition, the move-on powers in the South Australian Summary Offences Act 1953 also provide specific guidance as to what police may direct the person to do. The Act stipulates that a police officer may request that person to cease loitering, or request the persons in the group to disperse. The Act further states that a person to whom such a request is made must “leave the place and the area in the vicinity of the place in which he or she was loitering or assembled in the group”. 171 Similarly, the Australian Capital Territory Crime Prevention Powers Act 1998 limits the duration of the type of direction that police may give. Section 4 of the Act states that police may direct the person to leave the vicinity of the public place: (a) if the police officer has reasonable grounds for believing that the person is likely to engage in violent conduct while, or immediately after, leaving the vicinity by a particular route—that the person leave the vicinity by a different route (whether the route is stated or unstated); (b) that the person not return to the vicinity for a stated period of not longer than 6 hours. 172 170 Police Powers and Responsibilities Act (Qld), s. 39 (3). 171 Summary Offences Act (SA) s. 18(2). 172 Crime Prevention Powers Act (ACT) s. 4. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 39
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 and 34: (c) that the nature and extent of t
Page 35 and 36: The Act contains four additional in
Page 37: A fortification removal notice is r
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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