The New Proposed Drug Supply Prohibition Order Laws in NSW - Legalwise Seminars

Jimmy Singh, Principal at Criminal Defence Lawyers Australia, provides a guide to the the new proposed drug supply prohibition order laws in NSW in relation to police powers. 

The Drug Supply Prohibition Order Pilot Scheme Bill 2020 (‘the Bill’) proposes a 2-year pilot program across 4 NSW locations, namely, Bankstown Police Area Command, Coffs‑Clarence Police District, Hunter Valley Police District and Orana Mid‑Western Police District.

It introduces extended police powers permitted a police officer to stop, detain and search anyone without a warrant who has a drug supply prohibition order.

The power to search extends to the person, his/her premises or vehicle without a warrant.

The new proposed laws allow a police officer to apply for a drug supply prohibition order against any person who has been convicted of a ‘serious drug offence’ in the past 10-years and at least 18-years of age.

Some of the Pros and Cons of the Extended Police Powers

The proposed new laws aim to increase the difficulty for the manufacture and supply of illicit substances in the community, while thwarting organised criminal gangs from profiteering in large-scale supply and manufacture of prohibited drugs in the State.

Of concern:

• Is the fear that the 4 areas the powers apply in can unfairly target those from lower socio-economic backgrounds, other disadvantaged backgrounds and those with mental health issues- resulting in a counter-rehabilitative impact against vulnerable people who’ve been convicted of a serious drug offence.
• The person subjected to the extended powers is not provided an opportunity to have access to the police’s application, or any evidence in support of it, for such an order, nor an opportunity is provided for the person to be heard against the application.

A practical implication of the proposed police power is that it can mean, a person who has been convicted for a ‘deemed supply of prohibited drugs’, which can include possession of 5-6 MDMA capsules at a drug festival, can then be left subject to a drug supply prohibition order application by police, which if granted, will mean he/she can be stopped, detained and searched at any time without a warrant.

Lets look at how exactly the proposed drug supply prohibition order laws work below.

The Proposed Drug Supply Prohibition Laws in NSW

According to the Bill, a police officer is allowed to exercise powers to stop, detain and search a person, his/her vehicle or premises without a warrant, including:

• 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

The search powers are limited to a general search, not a strip search. In effect, it allows a police officer to do the following:

• 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.

When Can a Police Officer Stop, Detain and Search a Person Under the New Powers?

A police officer will only be permitted to exercise these extended powers if:

1. A ‘drug supply prohibition order’ is in force against the person; and
2. It is reasonably required to conduct the stop, detain and search power to determine if the person is involved in a drug offence; and
3. 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
4. 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).

What is a ‘Drug Supply Prohibition Order’?

Before a police officer is allowed to exercise these powers against a person without a warrant, that person must be an ‘eligible person’ who has a ‘drug prohibition order’ in force against him/her.

An ‘eligible person’ is a person who has 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.

What is the ‘Pilot Scheme Area’ and the Pilot Scheme Period?

The pilot scheme area is the area in which a drug prohibition order power can be exercised by police. It is currently in 4 locations, namely, Bankstown Police Area Command, Coffs‑Clarence Police District, Hunter Valley Police District and Orana Mid‑Western Police District.

The pilot scheme period is the period of time in which the order can be for. It is currently limited to two years.

How the Order is Made

An application for a drug supply prohibition order can be made by applying for an order to an authorised magistrate by a police officer against an ‘eligible person’.

A police officer can make this application if he/she has a reasonable belief that the eligible person is likely to engage in the manufacture or supply of a prohibited drug.

When making the application to an authorised magistrate, the police officer is required use a prescribed form and apply in writing. The application must also specify how long the order is sought for.

The application must also include a signed document by either a Superintendent or higher to authorise the police officer to apply for the order against an eligible person.

The application must also include an affidavit in support, setting out the basis of seeking the order, 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 must also outline the information known to the applicant police officer, that may work against successfully getting the order granted. This may include any measures or actions taken by the eligible person that reduces the eligible person’s risks of engaging in a drug offence.

If there isn’t such information known to the officer, the application should state same.

The application is not made or decided in court.

In addition, 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, the authorised magistrate can then 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 determining whether or not to make the order, the authorised magistrate can seek advice from the oversight commissioner’s in relation to any matter relating to the application or the order. Further to this, the authorised magistrate can also question or seek additional details from a police officer or oversight commissioner about the application at any time and in any way considered appropriate, if the that person has knowledge of the application

If an authorised magistrate makes an order against an eligible person, the authorised magistrate must make a record of the reasons for it, and the evidence used to support that decision.

What is Considered When Determining a Drug Supply Prohibition Order Application?

The authorised magistrate must consider whether or not the eligible person is likely to engage in the manufacture or supply of a prohibited drug. In resolving this, the authorised magistrate will consider the following factors:

• 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

Disclosure of a Drug Supply Prohibition Order

When an application for this is made by police, the eligible person (also known as the subject) is not made aware of the application, its contents or evidence, whether or not an order is granted, nor the reasons for any such decision.

The eligible person is given no opportunity to oppose or be heard on the application.

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.

Time Limits

A drug supply prohibition order application cannot be made by police within 2 weeks after a prior application has been refused unless the new application consists of material evidence or information that wasn’t included in the prior application.

Nor can such an application be made within 6 months from the date a prior drug supply prohibition order has been revoked.

A drug supply prohibition order starts when the order is made. But, a police officer can only then enforce the order once a copy of the order is served to the eligible person, which will represent the first time that such person will become made aware of it.

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 2-year pilot scheme period, or if the order is revoked.

Revoking a Drug Supply Prohibition Order

A drug supply prohibition order can be revoked by either the person subjected to the order or the Commissioner of Police, or the oversight commissioner.

The court is permitted to revoke the order when an application to revoke it is made by the person subjected to it, if the court is satisfied that:

• The risk of the eligible person committing in the supply or manufacture of a prohibited drug can be mitigated in alternative way; or
• The eligible person isn’t likely to engage in manufacturing or supplying prohibited drugs; or
• The order is unreasonably onerous in the circumstances.

Upon receiving an application to revoke the order, the Magistrate can request the person subjected to the order to provide the court with a copy of the order. The court Magistrate may then either revoke, amend or affirm the order.

The Commissioner of Police will become the respondent upon an application to revoke being made by the person subjected to it.

Documents and evidence that were annexed to the initial drug supply prohibition application and reasons for why the order was initially made by the authorised magistrate are not disclosed to the court for consideration in the revocation application. However, it can be disclosed if the Commissioner of Police considers it relevant in the revocation application.

A limitation to making a revocation application is that, one cannot be made by the person subjected to it within six months from the date a copy of it is served to that person, or within 6 months from the time a revocation application is refused by the local court.

Particulars Required in a Drug Supply Prohibition Order Application

The police, when making an application for a drug supply prohibition order, must include the following details:

• Which pilot scheme area that the order is intended to be used in.
• Identification of the eligible person who is to be subjected to the order.
• Information on each serious drug offence that the eligible person has committed within the last ten years.
• Whether there is, and if so, what practicable alternative method(s) that could be reasonably available to prevent or to obtain evidence of the eligible person engaging in the manufacture or supply of prohibited drugs.
• Any attempts made to use those alternative methods.
• Details of any other drug supply prohibition orders against the eligible person (either current or past).
• In the event a previous drug supply prohibition order has been revoked, the change of circumstances that justified the making of a new order.
• Details of any other prior unsuccessful applications.

Details of What a Drug Supply Prohibition Order Includes

The order takes a particular prescribed form, which is to be outlined in the regulations. However, it is also required to be signed by the authorised magistrate, in addition to including the following further requirements:

• Name of the authorised magistrate who made the order
• Name of the eligible person who is to be subjected to the order
• Date of the order
• That the order was made under this legislation given that the eligible person’s been found to be likely to engage in the manufacture or supply of a prohibited drug
• Period of time the order is to remain in force
• Effect of the order; and
• The way that the eligible person may seek to have it revoked.

Police’ Obligations Upon the Expiration of a Drug Supply Prohibition Order

Upon the expiration of a drug supply prohibition order, the Commissioner of Police must then provide the oversight commissioner and authorised magistrate with a report outlining, as soon as practicable:

• The number of searched undertaken
• Information as to the date, area(s), people(s), vehicle(s) and premise(s) that were searched
• Information as to the type of search(es) undertaken, and duration of same
• Number of people who were present during each search (excluding police officers)
• Evidence discovered from each search, and what if any use of such evidence has or will have
• Details of anything seized as a result of each search, and whether an application to revoke the drug supply prohibition order has previously been made, and if so, the outcome of such application

NSW current laws that permit NSW Police to stop, detain and search a person without a warrant is outlined in section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

Section 21 permits a police officer to do this if he/she forms a reasonable suspicion that the person about to be subjected to the power:

• Has something in their possession that was stolen or otherwise unlawfully obtained,
• Has something in their possession anything used or intended to be used in or in connection with the commission of an offence,
• Has a prohibited plant or a prohibited drug in their possession.

Well known to and often cited by Sydney criminal lawyers, is the case of Rondo [2001] NSWCCA 540, which reflects the position of what amounts to a ‘reasonable suspicion’, which requires a factual basis for suspicion to be shown.

Rondo’s case says that, to form a basis for a reasonable suspicion, it requires less than a belief, but more than a mere possibility. It is the belief of the officer at the time of forming the suspicion, even if it is a mistaken belief.

Mr. Jimmy Singh is the principal lawyer at Criminal Defence Lawyers Australia, a team of Sydney criminal lawyers. He is highly respected amongst the profession and recognised for his experience and success, exclusively practising in criminal law for over a decade. Connect with Jimmy via email or LinkedIn