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

applications. In this Act, an investigating police officer was defined as “any police officer in charge of an investigation of the commission
of an offence”. 247 The wording of this provision has since changed, and has been replaced with “any police officer involved in an
investigation”. 248 The following is an extract from this officer’s submission:
The only reasonable intent of Section 5 (1) [which stipulates that the application must be made by an officer of, or above the rank
of sergeant], I imagine, is to in some way ensure the integrity and accuracy of the application information. Drug Premises search
warrant applications, by their very nature, will rely upon intelligence and/or evidence gathered during an investigation already
underway. In such cases the “senior investigating officer” (as defined in the Crimes (Forensic Procedures Act) 2000) would be
best placed [to] ensure the integrity/accuracy of information sworn before the justice. Further, I expect an authorised justice would
much prefer to have before him an applicant who has knowledge of all the investigation information, someone who could also give
informed answers to any questions(s) the justice has. Under current legislation, if there is not a sergeant involved in the investigation
the justice would have before him an applicant whose knowledge is limited to what he had been told by an investigating officer. 249
Another reason why some police had difficulties with this aspect of the legislation relates to the fact that there are fewer sergeants than
constables in NSW Police. A sergeant is not always available to make a search warrant application. As at June 2003, there were 2,248
sergeants and 9,660 constables in NSW Police. 250
In addition, the wording of the form that police must use to apply for drug premises search warrants, unlike warrants issued under Part
2 of the Search Warrants Act, means that the person who has made the application must also be present when the search warrant is
executed.
Police who had used the legislation in the Cabramatta LAC said that on some occasions they had applied for a Part 2 search warrant on
a suspected drug premises because there were no sergeants available at the time. To illustrate their point, they said that at that particular
time, while they had four detective sergeants stationed at the LAC, two of them were away working on strike forces, and those who were
available also had other commitments such as court appearances and training courses, that impacted upon their availability. 251
This view was also articulated by another officer from a LAC in western Sydney. This officer believed the Drug Premises Act would
have been used more often in his LAC if constables had been able to apply for search warrants because, as he put it, there are “more
constables around than sergeants”. 252 He said that there were a “large number [of drug premises] that you would want to target, and you
would do a lot more warrants” 253 if it was not necessary to have a sergeant apply for the search warrant.
4.2.10. Conclusion
There is no compelling evidence that the Drug Premises Act lowers the threshold for obtaining search warrants. Almost all of the drug
premises search warrants that we were able to examine contained fairly detailed information about suspected drug related activity at the
premises. There are also a number of safeguards incorporated into the process of applying for search warrants, such as the requirement
that a search warrant application must be put before an authorised justice for approval.
We understand the requirement in the Drug Premises Act that a sergeant apply for a drug premises search warrant was considered to be
an additional safeguard in the legislation. However, our research findings suggest that the integrity of the information contained in search
warrant applications is more likely to be ensured by a police officer who is in charge of the investigation of the suspected drug premises.
Such a police officer, as opposed to a sergeant who may not have been involved in the investigation, will be better placed to respond to
any queries that the magistrate may have in deciding whether to grant the search warrant. It was also apparent that there are a range of
practical difficulties arising from the requirement that a sergeant apply for a drug premises search warrant.
In recommending Parliament consider a change to this requirement, we recognise NSW Police should ensure appropriate supervision of
less senior officers in making applications.
247 Crimes (Forensic Procedures) Act 2000, Part 1, s. 3(1).
248 Crimes (Forensic Procedures) Amendment Act, 2002, s. 3(1).
249 Submission, Cabramatta crime manager, 15 August 2003, pp 1-2.
250 Australian Institute of Criminology, “The Composition of Australia’s Police Services as at June 2003”. These figures include constables, senior
constables, sergeants and senior sergeants.
251 Focus group, Cabramatta police, 2 July 2003.
252 Personal communication, Crime Coordinator, Western Sydney LAC, August 2003.
253 Ibid.
NSW Ombudsman
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