Jimmy Singh and Poppy Morandin.
A proposed new law with the support of the state Government and the Labor opposition would enable NSW Police to stop, detain and search anyone convicted of a ‘serious drug offence’ in the past decade, including their vehicle or premises, without a warrant.
Some of the concerning aspects of this proposed extended police power is that, the person who will be subjected to these extended police powers:
- Will not be given an opportunity to be heard against the police’s application to make such an order that would, if granted, allow police to stop, detain and search that person.
- Will not be allowed access to view or be made aware of the documents or evidence that the police will rely on to form the basis for making such an application against that person.
Other concerning aspects of the proposed extended police powers include the concern that the four areas that the powers can be used by police in unfairly target those from lower social-economic backgrounds and otherwise from disadvantaged backgrounds or experiencing mental health issues. These powers arguably have a counter-rehabilitative effect to those who have been convicted of drug offences.
On the other hand, the new extended powers are meant to make it even harder for drugs to be manufactured and supplied into the community. It is also expected to thwart organised criminal groups from profiting via large-scale drug supply and manufacturing in NSW.
If successful, the powers will be rolled out to other areas, not just the current four.
The extended powers will require officers to apply to an authorised magistrate for a drug supply prohibition order to be made against an eligible person.
The application may be made where the officer ‘reasonably believes’ that the eligible person is likely to engage in the manufacture or supply of a prohibited drug.
In order for a drug supply prohibition order to be made, the person must have been convicted of a serious drug offence in the past decade, and at least 18 years of age.
However, the scheme could apply to persons who were under 18 at the time of the committed offence.
Under the proposed legislation, a ‘serious drug offence’ includes persons who have been convicted of a drug supply charge above a trafficable quantity.
“As currently drafted, a 19-year-old person, previously convicted as a juvenile, and placed on a community-based order for deemed supply of five to six MDMA pills at a festival, could be subject to these extraordinary powers, if a police officer reasonably believes they may be engaging in supply of a prohibited drug,” commented NSW Law Society president, Richard Harvey.
The subject of the drug supply prohibition order will furthermore be unable to receive the reasons for the decision to make the order and is not entitled to be given access to any document that formed part of the application.
The Government has stated that it expects the scheme to have a “disruptive and deterrent effect on drug supply and manufacture”.
Contrastingly, advocates for civil liberties have launched scathing comments at the bill.
“It is not too much to ask to limit searches by police to only when they are actually really needed. For most citizens in NSW the war on drugs is more of a danger to them than the drugs themselves.” said Greens MP, David Shoebridge.
Whilst the Greens sought to support amendments that would remove Bankstown from the pilot scheme and to exclude offences committed while persons were underage, the Government ultimately voted down both revisions.
“Shame on Labor and the Liberals for treating Western Sydney as a testing lab for austerity and police brutality.” commented Shoebridge.
“People are marching in the streets calling for a roll back of police powers, for more support for their communities instead of just more cops. Instead you’re listening to the Police Association and the Commissioner who will always argue for more powers and more money.” he continued.
“Another day, another government bill to give police excessive powers over people who live in NSW.” agreed Greens MP, Jenny Leong.
In a submission to the Legislative Council, the NSW Council for Civil Liberties questioned the need for the overly punitive scheme noting “adequate powers currently exist to search and seize items related to drug activity”.
Our experienced criminal lawyers in Parramatta below outline the proposed laws on this in detail.
How It Works
The extended new police powers allow a police officer to, without a warrant, stop, detain, and search a person, premises/dwelling, and vehicle.
It also allows police to enter and search:
- A dwelling the person lives in; or
- A premises reasonably suspected of being used by the person for illegal purposes relating to manufacturing or supply prohibited drugs; or
- A premises reasonably suspected is owned or under the person’s direct control or management.
The new powers, in addition, allow police to stop, detain and search a vehicle if:
- It’s being driven by the person; is being occupied by the person; or is in the control or management of the person; or
- It’s parked on an place that’s part of searchable premises; or is parked in an area that’s provided for the use of searchable premises unless if the area is shared with another dwelling or premises (this will be permitted if the police officer reasonably suspects that the vehicle is being used by the person in relation to the manufacture or supply of prohibited drugs).
Under these powers, police are also allowed to seize and detain anything discovered from the search if the officer forms a reasonable suspicion that:
- It may provide evidence of a drug offence; or
- Is stolen or unlawfully obtained; or
- It may provide evidence of an offence otherwise
These new powers do not allow for a strip search. It only allows for a general search, which involves police:
- Quickly running hands over your outer clothing.
- Requiring you to remove your coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, but not all clothes.
- Examine anything in your possession.
- Pass an electronic metal detection device over you or in close proximity to your outer clothing or anything removed from you.
A strip search is only allows to be conducted under the usual safeguards without a warrant outlined in the legislation. This is outlined further below in this article.
These new stop, detain and search powers without a warrant can only be used by a police officer if:
- A ‘drug supply prohibition order’ is in force against the person; and
- It is reasonably required to conduct the stop, detain and search power to determine if the person is involved in a drug offence; and
- The police are conducting the stop, detain and search in a pilot scheme area or an area the officer reasonably believes to be in a pilot scheme area; and
- The police are conducting the stop, detain and search power during the pilot scheme period (2-year period after the commencement of the new law).
‘Drug Supply Prohibition Order’
A drug supply prohibition order is required to be in force against an ‘eligible person’ before a police officer is allowed to stop, detain and search the ‘eligible person’ without a warrant.
An ‘eligible person’ is a person who’s been convicted of a ‘serious drug offence’ within 10-years before the day on which the application for the drug supply prohibition order was made; and if the person is at least the age of 18 on the day on which the application was made.
What is a ‘serious drug offence? A serious drug offence includes the following types of drug offences:
- Possession of tablet press or drug encapsulator
- Cultivate, supply, or knowingly take part in cultivating prohibited plant (of at least a commercial quantity)
- Manufacture, or produce, or knowingly take part in the manufacture or production of a prohibited drug (of at least a commercial quantity); this includes exposing a child to that manufacture or production process, or to substances being stored for use in that manufacture or production process.
- Possession of a precursor or drug manufacture apparatus intended to be used in the manufacture or production of a prohibited drug.
- Possession of a precursor.
- Supply prohibited drugs on an ongoing basis
- Organise, conduct, or assists in organising or conducting a drug premises knowing a child has access to the premises and as a result is exposed to a drug supply process.
- A second or subsequent offence of organising or conducting, or assisting in organising or conducting a drug premises.
- Cultivate or knowingly take part in cultivating a prohibited plant, or supply or knowingly take part in the supply of a prohibited plant.
- Cultivate by enhances indoor means, or knowingly take part in same by enhanced indoor means of at least a small quantity and less than a commercial quantity of the prohibited plants; or cultivate or knowingly takes part in cultivation of a prohibited plant for a commercial purpose.
- Manufacture or produce, or knowingly takes part in manufacturing or producing a prohibited drug; or doing this while exposing a child to that manufacturing or production process, or to substances being stored for use in that process.
- Supply or knowingly take part in the supply of a prohibited drug; or doing this to a person under the age of 16.
- Supply or knowingly take part in the supply of a prohibited drug other than cannabis leaf (at least a commercial quantity); or doing this to a person under the age of 16.
- Procuring a person under the age of 16 to supply, or to take part in the supply of a prohibited drug (other than cannabis leaf).
- Conspiring with another person to commit a drug offence outlined above.
Pilot Scheme Area and Period in Drug Supply Prohibition Order will Apply
The ‘Drug Supply Prohibition Order Pilot Scheme Bill 2020’ would introduce a two-year pilot program in four locations: Bankstown Police Area Command, Coffs‑Clarence Police District, Hunter Valley Police District and Orana Mid‑Western Police District.
Whilst the Government has stated they chose the areas to assess the power regionally as well as in a metropolitan area, concerns have been raised that it may unduly impact First Nations people, and those from lower socio-economic backgrounds.
Police officers in the relevant locations would be able to “stop, detain and search,” any person who has a drug supply prohibition order, as well as “enter and search a dwelling,” and “stop, detain and search any vehicle,” as stated by Member of the Legislative Council, Scott Farlow.
How the Drug Supply Prohibition Order is Made
A drug supply prohibition order cannot just be made against anybody.
An application for a drug supply prohibition order can be made to an authorised magistrate by a police officer against an ‘eligible person’.
However, a police officer may make such an application if the officer forms a reasonable belief that the eligible person is likely to engage in the manufacturing or supply of a prohibited drug.
The application must be in writing, within the prescribed form and it must specify the period of time that the order is sought for.
Further, the application must include a police signed document (being a Superintendent or higher) authorising the applicant (police officer) to apply for the order against the eligible person.
The application must also include an affidavit to support the application setting out the grounds or basis that the order is sought, and setting out the evidence that forms the basis as to why the eligible person is likely to engage in the supply or manufacture of a prohibited drug.
The supporting affidavit needs to also outline the information known to the applicant that may work against successfully getting the order granted. This may includes any measures or actions that the eligible person has taken to cease or mitigate the risk of committing a drug offence.
If there is no such information known, the application should state this.
The application is not made or decided in court. This also means, that a drug supply prohibition order is not permitted to be made against a person who is being sentenced for an offence- a separate application must be made.
Upon receiving an application for a drug supply prohibition order by police, the authorised magistrate may make the order if satisfied:
- The person is an ‘eligible person’; and
- The eligible person is likely to engage in the supply or manufacture of a prohibited drug; and
- The oversight commissioner has been provided with a reasonable opportunity to make a submission about the application
In deciding whether or not to make a drug supply prohibition order, the authorised magistrate can seek the oversight commissioner’s advice on any matter relating to the application or the order. Furthermore, the authorised magistrate can question or seek additional details about the application from a police officer with knowledge of the application or the oversight commissioner at any time and in any way considered appropriate including via audio visual link.
In the event an authorised magistrate makes an order against an eligible person, the authorised magistrate is then required to make a record of the reasons for it and the evidence used to support that decision.
Factors Considered When Deciding Whether or Not to Make a Drug Supply Prohibition Order
When an authorised magistrate considers whether or not to make a drug supply prohibition order, the authorised magistrate is required to consider whether the eligible person is likely to engage in the supply or manufacture of a prohibited drug. The factors considered in determining this include the following:
- Any information adverse to the application. i.e. any steps the eligible person has taken to reduce or stop the risk of committing a drug offence. i.e. lawful drug treatment or rehabilitation program.
- Whether the eligible person associates with others who’re involved in the supply or manufacture of a prohibited drug.
- Whether the eligible person is a member of or associates with a criminal group.
- Whether the eligible person has assets or cash significantly out of proportion to his/her income.
- Any relevant criminal intelligence.
- Whether there are alternative practicable alternative ways that could be reasonably available that could be used to mitigate the risk that the eligible person will engage in supplying or manufacturing a prohibited drug.
- Whether the eligible person has previously been convicted of any of the following offences:
- Organising or conducting or assisting/conducting a drug premises (if it’s a second or subsequent offence).
- Advertising a psychoactive substance.
- Supplying or manufacturing a psychoactive substance
- Organising drug premises
- Allowing the use of premises as drug premises
- Entering or being on drug premises
- Manufacture, produce, possess or supply certain schedule 9 substances
- Advertising or holding out that premises are available for use for unlawful administration of prohibited rugs
- Possession of instructions for manufacturing or producing prohibited drugs
- Sale, supply and display of waterpipes and ice pipes
- Possession of equipment for administrating prohibited drugs
Who is Made Aware of the Drug Supply Prohibition Application?
The drug supply prohibition application, its contents/evidence or the fact an order is made against an eligible person is not disclosed to the eligible person at any stage.
The eligible person is not permitted an opportunity to object, dispute, or even respond to it.
A notice of the application, including its contents/evidence is to be provided by the Commissioner of Police to the ‘oversight commissioner’ as far in advance of the application being made as reasonably practicable.
In fact, after the application is decided, the authorised magistrate is required to forward the application and its contents to the oversight commissioner who is required to keep these documents in a way that is not accessible to anyone who isn’t authorised to access it.
Generally, the eligible person is not entitled to know of the reasons for any decision to make a drug supply prohibition order.
Time Limitations on Making a Drug Supply Prohibition Order
With the above in mind, police cannot make an application for a drug supply prohibition order against an ‘eligible person’ within:
- Two weeks after a previous application has been refused by the authorised magistrate, unless it contains material evidence or information not included in the previous application; or
- Six months after a previous drug supply prohibition order has been revoked.
Further to this, a drug supply prohibition starts when the order is made. But, a police officer can only then enforce the order (by stopping, detaining and searching) once a copy of the order is served to the eligible person.
The order, once made, will stay in force either until the period specified in it expires (which cannot be less than six months), or at the expiration of the pilot scheme period (2-years), or if the order is revoked.
Can the Drug Supply Prohibition Order be Revoked?
The eligible person who is subject to a drug supply prohibition order can in fact apply to the local court to have the order revoked.
After a revocation order is made, the other side, namely the Commissioner of Police will be required to reply in court.
What then happens in court? The Magistrate in court may then require the eligible person to provide the court with a copy of the order; the court may then either affirm the order, change the terms of the order or revoke the order.
The court can revoke the drug supply prohibition order if satisfied as to any one or more of the following:
- The order’s unreasonably onerous in the circumstances.
- The eligible person isn’t likely to engage in manufacturing or supplying prohibited drugs
- The risk of the eligible person committing in the supply or manufacture of a prohibited drug can be mitigated in alternative way.
- The Commissioner of Police or the oversight commissioner have applied to revoke the order
Documents attaching to the drug supply prohibition order application and reasons for why the authorised magistrate made the order in the first place are not to be provided to the local court when the court is considering whether or not to revoke it. These documents and information can be revealed to the court at the discretion of the Commissioner of Police if they consider it relevant in the revocation application.
A revocation application cannot be made by the eligible person who is subject to the order within 6 months from when a copy of the order is served to the eligible person, or from when an application to revoke it has already been refused by the local court.
What the Police Must Include in the Application
The drug supply prohibition order application must include the following:
- Identity of the eligible person
- Each pilot scheme area in which the order is likely to be used
- Details of each serious drug offence committed by the eligible person within the previous ten years
- Any practicable alternative way(s) that could be reasonably available to prevent or obtain evidence of the eligible person engaging in the supply or manufacture of a prohibited drug.
- What attempts if any were made to use the alternative way(s) to do this.
- Information on any other drug supply prohibition orders against the eligible person that are or have been in force.
- If a prior drug supply prohibition order was revoked in the past, the change of circumstances justifying the making of a new order.
- Information as to any unsuccessful applications made in the past.
What the Drug Supply Prohibition Order includes
The drug supply prohibition order is to not only be in a prescribed form, it must also be signed by the authorised magistrate who makes the order.
In addition, the order must also include the following:
- Name of the authorised magistrate
- Name of the eligible person subject to the order
- Date that the order was made
- That the order was made under this legislation because the eligible person has been found to be likely to engage in the supply or manufacture of a prohibited drug
- Period of time that the order is to remain in force
- Effect of the order; and
- The way that eligible person may seek to have the order revoked.
Obligations of Police After a Drug Supply Prohibition Order Expires or is Revoked
Once a drug supply prohibition order expires or is revoked, the Commissioner of Police is required to provide the authorised magistrate who initially made the order and the oversight commissioner with a report as soon as is practicable outlining:
- How many searches took place
- Details of the date, location, person, vehicle or premises searched
- Type and period of time of each search
- Number of people present during each search (not including police)
- Any evidence uncovered from each search and use that evidence had or is to have
- What if anything was seized from each search and whether a revocation application has been previously made, and result of any such application.
Our Existing Police Powers to Stop, Search and Detain People Without a Warrant
Currently in NSW, section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), a police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that they:
- Have something in their possession that was stolen or otherwise unlawfully obtained,
- Have something in their possession anything used or intended to be used in or in connection with the commission of an offence,
- Have a prohibited plant or a prohibited drug in their possession.
Pursuant to principles enunciated in Rondo  NSWCCA 540, the concept of ‘reasonable grounds’ requires that some factual basis for suspicion be shown, in order to prevent arbitrary use of powers.
Forming the basis for reasonable suspicion requires less than a reasonable belief but more than a possibility.
Furthermore, regard must be given to what the officer was aware of at the time of the suspicion.
Reasons such as presence in a high crime area, the time of the day or day of the week, staring at police, looking nervous, driving an expensive car that the driver does not own, belonging to a class of persons, or having a prior criminal record on their own have been found insufficient to form reasonable grounds. A combination of such features may and usually is sufficient.
If an officer is found to not have had reasonable grounds to conduct a search, any evidence found may be potentially inadmissible in court. Resulting in the charge(s) being dismissed.
Interesting facts: click here for an outline on the law on making a citizens’ arrest in NSW.