PUBLIC STATEMENT – 9 NOVEMBER 2020

The New South Wales Council for Civil Liberties (NSWCCL) is opposed to the Drug Supply Prohibition Order (DSPO) Pilot Scheme Bill 2020 (the Bill) which provides police with extraordinary powers in circumstances where adequate powers currently exist to search and seize items related to drug activity.

The Second Reading Speech highlights that the purpose of the Bill is to “assist police to gather evidence of drug supply and drug manufacture effectively and efficiently”. The Bill is designed to have a “deterrent effect on a person subject to a DSPO, who may reconsider whether re‑engaging in a lifestyle involving the manufacture or supply of illicit drugs is worth the increased risk of police detection and further conviction”.

The Bill introduces a 2-year pilot scheme enabling police to apply for drug supply prohibition orders in 4 specified local area commands, against a person who is over 18 and has been convicted of “a serious drug offence”.

The orders would allow police to stop, detain and search the person subject to the order and certain vehicles, aircraft or premises, without a warrant. The application may be made by police up to 10 years after the person is convicted of the offence.

The NSWCCL is deeply concerned that the low threshold in relation to the definition of “serious drug offence” operates to cast the net unacceptably wide.  Section 5(2) lists offences under the Drug Misuse and Trafficking Act 1985 that qualify as a “serious drug offence”. The list of offences is too broad. For example, it includes section 25(1) (supply a prohibited drug) but excludes trafficable and small quantities. This means the indictable quantity is the threshold. The indictable quantity for many drugs is not very high. For example, the sale of MDMA, for the amount of 1.25g, and amphetamine is 5 grams.

The Bill provides that a Magistrate may make an order if a person is an “eligible person” and if they are likely to engage in the manufacture or supply of a prohibited drug. In deciding whether a person is likely to engage in manufacture or supply, the court may take into account “information that may be adverse to the application for the order, including steps that the eligible person has taken to stop or reduce the risk of the person committing drug-related offences”.

The Bill must be strengthened to ensure that Magistrates must take into account any information adverse to the making of the order and it should also be mandatory that the Magistrate be advised of and take into account any alternative means of obtaining evidence (such as an application for a warrant).

We are strongly of the view that the 10-year period within which police can apply for an order is too long and places people at risk of being subject to these extraordinary powers for a period that is simply unacceptable. We are also concerned that the lengthy period may also have the unintended impact of interfering with rehabilitation efforts.

Although an order can only be made against someone who is 18, a juvenile conviction can still trigger an application for an order once the person turns 18. Juvenile offences should be excluded. The inclusion of juvenile offences renders young people open to breaches of their civil liberties for acts committed when they were children. The consideration of past juvenile offences is contrary to the well-established principle that rehabilitation is paramount when sentencing young people.

The NSWCCL oppose other aspects of the bill which are unacceptably broad, including:

• the powers for items to be seized that are not drug related.
• the power for searches of premises and vehicles in the absence of the owner/controller
• the power to search premises “at which the person resides” and “premises that the police officer reasonably suspects are owned by the person or under the direct control or management of the person”. Searches should only be allowable where police reasonably suspects the premises or vehicles are being used for an unlawful purpose involving the manufacture or supply of a prohibited drug.

The minimum period of the order is 6 months and the person who the order is made against is unable to apply for revocation within 6 months of service 13(8). This minimum period is far too long and inability to apply for revocation unexplained and unjustified. 

Other persons affected by the orders

The Bill does not give appropriate consideration to the impact the order may have on third persons. Section 7(5) states that an affidavit accompanying the application should identify persons who may be incidentally affected by the order. Police applying for the order should have a positive duty to investigate and put before the court any person who may be affected by the order and demonstrate to the court that they have engaged in investigations relating to third parties. Police should also be required to indicate the age and any vulnerabilities of third parties who may be affected by the orders.

The NSWCCL suggests a comprehensive list of matters to assist police in identifying the sorts of matters which may be adverse.

Notice and procedural fairness

Under this scheme, the person who is the subject of the order does not have to be present or given notice of the search but is only required to be given a written notice after the search. We oppose the lack of notification and a search being conducted without the person being present.

The ordinary rules of procedural fairness do not apply. The Second Reading speech reasons that lack of a notification, presence or submissions by the person against whom a DSPO is sought is to protect confidential criminal intelligence. However, the protection of confidential criminal intelligence needs to be weighed and balanced with the right of a person to be informed of an application made against them to deprive them of the opportunity to be heard.

If the applications remain without notice and in private, we are of the view that consequences for police should be built into the scheme for applications which do not properly disclose matters adverse to the making of the order, including immediate revocation of the order.  

The Bill also provides that there is no entitlement to know the reasons for the decision for making the order. This is unacceptable, anyone who has an order against them should be entitled to know the reason as to why their liberties are infringed upon. Protections can be built in to protect particularly sensitive information.

The NSWCCL supports the requirement that notice be given to an Oversight Commissioner. It is recommended that greater participation for the Oversight Commissioner is provided for including monitoring compliance of the application process, the right to make submissions on the application and monitoring compliance with carrying out the orders.

The Areas where the pilot scheme will operate

We also question the 4 areas which have been nominated as pilot scheme areas:  Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western Local Area Commands.  It is likely the nominated pilot scheme areas will disproportionately impact indigenous people, marginalised groups and people of low socio-economic status.

The NSWCCL acknowledge the harm that illicit substances have on the lives on individuals and their families and the harm they cause communities. Police currently have the powers necessary to investigate the supply and manufacture of drugs. The extraordinary powers provided by this Bill diminish protections and civil liberties of those subject to the order, and third persons who may also be affected by an order. NSWCCL does not support the enactment of this Bill. If the Bill is to pass, significant amendments must be made, in particular to the length of the orders, the breadth of the criteria of “eligible person”, the factors to be taken into account when making the orders by the court and police obligation to inform the court of adverse impacts of the orders.      

More information: Read the Bill.