Drug Supply Prohibition Orders: Targeting Those Who Have ‘Served Their Time’

by Paul Gregoire & Ugur Nedim

The Berejiklian government has introduced a bill that establishes a pilot scheme that allows NSW police to place those who have been convicted of drug supply or drug manufacture under enhanced surveillance after they’ve served their sentences.

Introduced on 20 October 2020, the Drug Supply Prohibition Order Pilot Scheme Bill 2020 (the DSPO Bill) sets up a two year drug supply prohibition order (DSPO) pilot program to be run in four regions throughout the state.

Those placed on a drug supply prohibition order are then subjected to a form of increased surveillance, which means police officers can stop, detain and search them, along with their vehicles, vessels or premises, without the need of a warrant.

“It will assist police to gather evidence of drug supply and drug manufacture effectively and efficiently,” said treasury secretary Scott Farlow during his second reading speech. It will also “have a deterrent effect on a person subject to a DSPO” who may consider reengaging in drug supply.

Although, critics argue the scheme marks a further erosion of basic justice system principles, as it constitutes a form of double punishment by subjecting an individual to extra monitoring on the basis of a crime for which they’ve already served the judicially-imposed penalty in its entirety.

Carte blanche powers

If passed, the new legislation would establish the two year-long DSPO pilot program in four NSW regions: Bankstown Police Area Command, Coffs-Clarence Police District, Hunter Valley Police District and Orana Mid-Western Police District.

Section 4 of the DSPO Bill sets out the terms of an order. It establishes that a police officer can detain and search a DSPO target without a warrant, along with entering and searching their premises or a vehicle that they own or control.

When carrying out such searches NSW police can seize and detain certain items that provide evidence of a drug-related crime, are unlawful or deemed dangerous.

These powers can only be exercised within a pilot scheme area, and when they’re needed to ascertain whether a subject is involved in a drug crime.

During such searches the protocols contained within the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) or the LEPRA apply.

As to who can be placed on an order, an individual is eligible if they’re over the age of 18 and have been convicted of a serious drug offence – under the Drug Misuse and Trafficking Act 1985 (NSW) – within the last 10 years.

Serious drug offences include possession of a tablet press, possessing an indictable quantity or more of a prohibited plant, supplying or manufacturing an indictable quantity or more of a prohibited substance, or conspiring to perpetrate these crimes.

Further provisions

A NSW police officer may apply to an authorised magistrate for a DSPO to be placed upon an eligible individual if they reasonably believe the person “is likely to engage in the manufacture or supply of a prohibited drug”. And the grounds and evidence for the order must be included in the application.

A DSPO commences when the order is made, although it cannot be enforced until the subject has been served with notice of it. An order can apply for at least six months or until the pilot scheme ends or until the order is officially revoked.

The bill further establishes the position of oversight commissioner. This individual must be a legal practitioner of at least seven years, or a judicial officer. And during the pilot scheme, the commissioner will be the serving NSW Surveillance Devices Commissioner, currently Don McKenzie.

Firearm search powers

“The proposed DSPO model is based on the successful firearms prohibition order scheme,” Farlow told the upper house last Thursday.

“A firearms prohibition order prohibits a person from acquiring, possessing or using a firearm, a firearm part or ammunition on the basis that it is not in the public interest for them to do so.”

Since November 2013, an enhanced firearms prohibition order (FPO) regime has been in place. It provides officers with the same warrantless search capabilities as a DSPO.

FPOs have applied since 1973, however officers used to be required to obtain a warrant to conduct searches around them.

The process of placing a person on an FPO differs to that proposed for DSPOs. Section 73 of the Firearms Act 1996 (NSW) stipulates that an individual can be placed on a FPO if the NSW police commissioner deems “the person is not fit, in the public interest, to have a firearm”.

A 2015 NSW Ombudsman report into the newly enacted FPO scheme found that within the first 10 months of operations, 642 FPO-related searches had been carried out. However, none of these resulted in any firearms being found. And only eight turned up other types of illegal items.

These FPO search incidents involved 224 individuals, of which the Ombudsman found 18 percent had never been convicted of a crime in the past.

“In the first 40 years of the FPO regime, 62 FPOs were issued. After the introduction of the FPO search powers, the number of FPOs issued increased,” the Ombudsman explained. “More than 400 new FPOs were issued in the first 12 months.”

The failing drug war

Premier Gladys Berejiklian first spruiked drug supply prohibition orders in March 2019, a week before the state election.

At the time, the 2018-19 music festival season was coming to an end. It had been a particularly volatile season as five young people had died in drug-related incidents at NSW events.

Rather than listen to the advice of medical professionals and harm reduction advocates who’ve long been pressing for a change from heavy handed law enforcement towards treating these substances as a health issue, the premier simply dug in her heels, as she called for a “just say no” approach.

Berejiklian established a festival safety expert panel that produced a report calling for tougher drug supply penalties, as well as a new licensing scheme for festivals, which culminated in a moment where the whole industry rallied against the state government out of fear it was being destroyed.

The drug supply prohibition order regime seems to be the last drug war-type solution to come out of the state government’s attempt to deal with the issue of young people needing hospitalisation, or in the worst case scenarios, dying, as a result of toxic drugs at festivals.

But instead of implementing pill testing and pulling back on saturation policing at events in order to prevent young people taking dodgy drugs or panic overdosing, the Liberal Nationals simply want to enhance the war on drugs to the point where those once found guilty, will always remain guilty.

Authors

Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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