History and background
In February 2002 the Police Powers (Drug Detection Dogs) Act came into force in New South Wales. This act originally allowed police to use sniffer dogs to perform searches without a warrant on people at pubs, entertainment events and on certain public transport routes. The act is no longer in force, and has been replaced with the current Law Enforcement (Powers and Responsibilities) Act 2002. (see below for a legal note on the provisions of this act)
In 2004, the Ombudsman began a review of the previous legislation (which was in most respects very similar to the current act) and wrote a report on drug detection sniffer dogs in NSW (2006) - read the report here. The report reveals that sniffer dogs are a dismal failure:
- 73% of people identified by the dogs are not carrying drugs
- Most drugs detected are small amounts of cannabis
- Dogs are failing to detect drug dealers
NSWCCL issued a response in 2006 including the following statements:
- “The discussion paper shows that the dogs are getting it wrong in three out of five searches."
- “If speed cameras were getting it wrong in three out of five cases there would be public outrage and we would stop using them. Given these poor results, the police should immediately stop using sniffer dogs."
- “The few people who are found to have drugs in their possession are overwhelmingly drug users, not dealers, and are cautioned by police under the cannabis cautioning program.”
- “The police are constantly complaining about a shortage of resources. When they do, the public should be asking why they are wasting millions of dollars on useless sniffer dogs, instead of using the money to investigate serious crime.”
Make a complaint about sniffer dogs
If you have been subject to sniffer dogs or search by sniffer dogs, you can send us a complaint or write a report about your experience via the complaints page.
There are also a number of other organisations you can complain to directly:
- The NSW Ombudsman
- The NSW Police Local Area Commander in the area where you saw the dogs
- The Police Integrity Commission
- Your local member of State Parliament
Knowing your legal rights
Where can Police use sniffer dogs?
Police are only authorised to use drug sniffer dogs to search people randomly (without a warrant) in five situations:
- in pubs, clubs and other places where alcohol is served
- at entertainment events, including sporting events, concerts, dance parties & street parades
- on public transport and stations (but only on certain bus routes; speak to a lawyer)
- in tattoo parlours
- in and around the area of Kings Cross (This may even include residential areas, if within the demarcated zone under the law)
Any drug search of a person outside these situations is illegal unless the police have a reasonable suspicion or a warrant.
If you have been approached by a police sniffer dog team, or know of police using dogs outside these areas, you should complain or report it.
What should I do if I am approached by a sniffer dog?
If a dog sits down next you, then police can search you. It pays to know your rights so check out the following pointers:
- Stay calm and be polite. You could be fined or arrested if you swear at the police, so don’t give them an excuse.
- Be cooperative and let the police search you. But ask them why they are searching you. And ask them for their name, rank and station.
- Try to remember where (location) and when (time of day) police search you. This info might be important if you decide to make a complaint.
- If you have drugs on you: The law says you must give your name and address to police, if the police discover drugs on you. But you don’t have to say anything more, if you don’t want to. This is your right to silence.
- If you don’t have drugs on you: If police ask for your name and address, ask them whether you have to give it. If police say you don’t, then don’t…because they will put that info on their database and might use it against you later. If police say you have to give your name & address, then it is better to cooperate and make a complaint later.
You can complain to the Police, the Ombudsman, NSWCCL or a lawyer if the dog touches you or if the police are aggressive, rude or behave inappropriately.
Legal note (for lawyers)
Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (As amended in 2014), the police have the power to use sniffer dogs to perform searches on persons for the purpose of drug detection. All drug detection matters after 1 December 2005 fall under this act.
If you are defending someone who has been detected by a dog, the first thing to do is to determine whether police required a warrant.
(Please note that: as of 2012, sniffer dogs can be used without a warrant on any “persons at any public place in the Kings Cross precinct” (s. 148(1)(e)) – this may extend to private residences within this zone)
(Please note that: as of 2012, sniffer dogs can be used on all CityRail suburban train lines: r 38)
(2) If your client was searched outside of these areas, police need a warrant: section 149 of the act. Make sure that there is a warrant and that it is valid. Any member of the public can expect a warrant at the Local Court: reg 10(6)(c) of the Regs.
Your attention is drawn to the following cases:
- Darby v DPP (2004) 61 NSWLR 558; (2004) 150 A Crim R 314; NSWCA 431: see , in which majority suggest that assault & battery prior to dog identifying someone renders a search unlawful.
- Harris v DPP (NSW District Court, 11 March 2005): applying Darby, search after a positive identification by a drug detection dog was unlawful, because dog assaulted the accused before dog identified him. Evidence obtained during unlawful search excluded under section 138 of Evidence Act.
- R v Benecke  NSWCCA 163, is a case about the reliability of tracker dogs. At  the court observed that: In R v Barnes, Gleeson CJ considered appropriate and adequate a warning in relation to tracker dog evidence that the jury should bear in mind that the dog was not able to be cross-examined and that the jury should be careful to avoid over-estimating the reliability of the operation of a dog's senses so as to avoid too rapidly arriving at the conclusion contended for by the Crown from the evidence of the dog's activities. It might be possible to argue that the same applies to drug detection dogs.
- Hoare v R (1999): Applicant argued that the search of a bus luggage compartment, via the use of sniffer dogs, constituted an invasion of privacy and a search requiring legislative authority, contrary to the decision of the Full Court of the Supreme Court. The court considered that there was insufficient reason to doubt the correctness of the decision of the Full Court to warrant a grant of special leave. Special leave refused.
News, reports and further information
(Please note: sniffer dog laws had an overhaul in 2012, and changes may occur beyond 2014. Use old articles, and in particular, old legal information, with caution and always seek fresh legal advice.)
Articles From 2014:
Articles from 2012:
Articles From 2011:
Articles From 2009:
Disclaimer: The information contained in this fact sheet is only intended as a guide to the law and should not be used as a substitute for legal advice. If you have any further questions we strongly suggest that you seek legal advice from a qualified legal practitioner.