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

4.2.4. Presenting the application before an authorised justice
Once the search warrant application has been prepared, it is then put before an authorised justice, usually a local magistrate. 209
In order for a drug premises search warrant to be issued, the authorised justice must also be satisfied that there are reasonable grounds
for issuing it. Section 5 (2) of the Drug Premises Act states:
An authorised justice to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a
search warrant authorising any police officer to enter and search the premises. 210
Applications are usually presented in person, though there is provision in the Search Warrants Act for the issuing of search warrants
over the telephone. 211 The information in the search warrant must also be later verified on oath before the magistrate, or by affirmation or
affidavit. 212
In training material on search warrant applications, police are advised to have all relevant documentation when they put their application
before an authorised justice to ensure police can immediately “produce information to substantiate any aspect of the application”. 213
Officers are also told to “expect the authorised justice to assess and test the material you present very carefully before accepting it”. 214
The Standard Operating Procedures on Search Warrants issue the following advice to police:
Do not assume that the Justice assessing information contained within the application for a warrant will “rubber stamp” it. The
Justice will objectively assess the application and rigorously test its probity before finally accepting and issuing a warrant. 215
Guidance on what to consider in determining if reasonable grounds exist to grant the search warrant is provided in the Search Warrants
Act. The Act states the following:
1) An authorised justice when determining whether there are reasonable grounds to issue a search warrant is to consider (but is
not limited to considering) the following matters:
a. the reliability of the information on which the application is based, including the nature of the source of the information,
b. if the warrant is required to search for a thing in relation to an alleged offence- whether there is sufficient connection between
the thing sought and the offence. 216
4.2.5. Does the Drug Premises Act lower the threshold for obtaining search warrants
Concern was expressed in parliamentary debate and in submissions to our discussion paper that the Drug Premises Act lowered the
threshold for obtaining search warrants in NSW. North and North West Community Legal Service expressed this concern, and believed
that as a consequence, the Act would lead to the “targeting and over policing of already marginalised and vulnerable groups”. 217
The Legal Service recommended that the requirement for obtaining search warrants under the Drug Premises Act be the same as
the requirement in the Search Warrants Act, that police must have a reasonable belief that there is a particular thing connected with a
particular narcotics offence on the premises. 218
While police have not reported any difficulties in obtaining drug premises search warrants under the Act, they have not indicated that
drug premises search warrants are any easier to obtain than Part 2 search warrants. Police who we have spoken to for this review have
commented that different types of evidence are required in order to obtain a drug premises search warrant, as opposed to a Part 2 search
warrant. A former Crime Manager from Cabramatta noted that:
209 An authorised justice is defined as a magistrate, a justice of the peace who is also a Clerk of a local court, or a justice of the peace who is
employed by the Department of Courts Administration and who has been declared by the Minister who is administers the Act to be an authorised
justice for the purposes of the Act. Search Warrants Act Part 1(3).
210 Police Powers (Drug Premises) Act 2001, s. 5(1)
211 These provisions are contained in Section 12 of the Search Warrants Act. This section stipulates that an authorised justice is not able to issue a
telephone warrant unless they are “satisfied that the warrant is required urgently and that it is not practicable for the application to be made in
person” (s.12(3)).
212 Search Warrants Act, s. 11(2).
213 NSW Police, Law Notes 4 of 2003 Making Better Search Warrant Applications- Part 1.
214 NSW Police, Law Notes 6 of 2003 Making Better Search Warrant Applications- Part 3.
215 NSW Police, Standard Operating Procedures, Search Warrants, p. 8, undated.
216 Search Warrants Act, s 12A(2)(a) and (b)
217 Submission, North and North West Legal Service, 1 August 2003. The Legal Service recommended that the in order to obtain a search warrant,
police should be required to have reasonable grounds for believing there are “things connected with a particular narcotics offence” on the
premises. This is the same requirement for obtaining search warrants for drug related offences that is contained in s. 5(1)(c) of the Search
Warrants Act. Similar concerns were also expressed in a submission we received from the East Area Tenants Service, dated 31 July 2003.
218 Submission, North and North West Community Legal Service, 1 August 2003.
NSW Ombudsman
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