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

Chapter 5. The definition of
drug premises in the Act and types of
drug premises
According to the Drug Premises Act, drug premises are “any premises [that] are being used for the unlawful supply or manufacture of
any prohibited drug”, other than cannabis resin, leaf or oil. 254 The definition of premises provided in the legislation includes any structure,
building or aircraft, vessel or place, or any part of any such structure or place. 255 Therefore it is possible for a flat, a house, a car, or a
parking lot to be considered drug premises. 256
Another important feature of the legislation is that premises may still be considered to be drug premises whether or not drugs are found
on the premises. 257 This feature of the legislation was reportedly included to enable police to lay charges under the Act in situations such
as those in which drugs had been destroyed prior to police entry, but other evidence indicated to police that the premises had been used
for drug manufacture or supply.
In this chapter, we will examine each of the eight indicia in the Act 258 that may be used to define drug premises, the characteristics of
identified drug premises that were recorded by police, and several court cases in which the indicia used to define particular drug premises
were at issue. We will also discuss the concerns raised about the use of particular indicia in the Act, such as fortifications, syringes and the
presence of drug affected people, to define drug premises.
It was evident from our review of the operation of the Act that various types of drug premises exist, including non-domestic drug premises,
cars, clandestine laboratories, and a motel room. Each of these types of drug premises will be discussed in this chapter.
5.1. Indicia that define drug premises in the Act
In order to find a person guilty of the drug premises offences of: being found on entering or leaving drug premises; organising, conducting
or assisting drug premises, or allowing premises to be used as drug premises; the prosecution must satisfy the court that the premises
were being used for the unlawful supply or manufacture of any prohibited drug, other than cannabis leaf, oil or resin, at the time when the
offence was committed. 259
Section 11 of the Act provides eight indicia to which regard may be had in determining if premises are being used for the unlawful supply
or manufacture of drugs – that is, whether premises constitute drug premises. However, a court is not limited to these indicia alone in
considering if premises were being used for drug manufacture or supply. 260 The Act does not provide guidance on the weight each
criterion is to be accorded. The indicia are:
(a) evidence that a police officer authorised by law to enter the premises was wilfully prevented from, or obstructed or delayed
in, entering or re-entering those premises or any part of those premises,
(b) evidence of the external or internal construction of the premises, including any external or internal door of, or means of
access to, those premises that is found likely to have been fitted with a bolt, bar, chain, or any means or device for the
purpose of preventing, delaying or obstructing the entry or re-entry into those premises of such a police officer or any other
person, or for giving an alarm in case of such entry or re-entry,
(c)
evidence of a person acting as a lookout to warn persons on the premises of the approach of police officers or other
persons,
(d) evidence that there was found on the premises, or in the possession of a person on those premises, any syringe or other
means or device used in the supply, manufacture or use of a prohibited drug,
254 Police Powers (Drug Premises) Act, s. 3(1). Cannabis resin, leaf and oil are excluded from the definition of “prohibited drug” in the Drug Premises
Act, according to section 3 of the Act.
255 Police Powers (Drug Premises) Act, s. 3(1).
256 It is most likely that the Act was intended for use on enclosed premises. However, because the definition of premises in section 3 of the Act also
includes a “place (whether built upon on not)”, the Act could also apply to a place such as a parking lot.
257 Police Powers (Drug Premises) Act, s. 10.
258 Police Powers (Drug Premises) Act, s. 11.
259 Police Powers (Drug Premises) Act, s. 11(1).
260 Police Powers (Drug Premises) Act, s. 11(2).
NSW Ombudsman
Review of the Police Powers (Drug Premises) Act 2001 53