Drug Supply Prohibition Orders
A Bill has recently passed parliament to introduce ‘Drug Supply Prohibition Orders’ (DSPO’s) in NSW. This Bill provides more powers to Police to search people and premises, without a warrant.
What powers will the DSPO scheme give police?
The DSPO scheme will give police new powers to stop, detain and search convicted drug dealers and manufacturers. Police will also be able to enter and search the home of a person subject to a DSPO, as well as any premises a police officer reasonably suspects are owned or controlled by the DSPO. This includes any premises a police officer reasonably suspects are being used by the person for an unlawful purpose involving the manufacture or supply of prohibited drugs.
A police officer will also be able to stop, detain and search any vehicle, vessel or aircraft driven or controlled by the person subject to a DSPO and any vehicle, vessel or aircraft parked on the land that is subject to the search power. Police can seize anything that they reasonably suspect to be stolen, or that may provide evidence of the commission of an offence involving a prohibited drug, or that is a dangerous article.
The DSPO scheme will commence as a pilot program, for a period of two years. The pilot program will operate throughout four NSW locations: Bankstown Police Area Command, Coffs-Clarence Police District, Hunter Valley Police District and Orana Mid-Western Police District. After the two-year period, the NSW Bureau of Crime Statistics and Research will review the pilot.
Applications for DSPOs
Under the DSPO scheme, NSW police will be able to apply for an order against a person who is 18 years of age or older and has been convicted of a serious drug offence in the last 10 years. For the purposes of the scheme a ‘serious drug offence’ includes drug supply or manufacture, that involves at least an indictable quantity of a prohibited drug. It also includes other drug offences relating to the supply or manufacture of prohibited drugs.
Police can make an application to an authorised Magistrate. The authorised Magistrate may make an order where the person meets the eligibility criteria in terms of age and criminal history, and where the Magistrate is satisfied the person is likely to engage in the supply or manufacture of prohibited drugs. This application is not required to be made in an open Court.
The order will not take effect until it has been served on the person, however the subject of a DSPO is not entitled to be told about the application and is not permitted to make any submissions on the application. Additionally, no one, including the person subject of the DSPO, is entitled to know the reasons for the making of the DSPO. Parliament has indicated they deem this necessary to protect confidential criminal intelligence.
As a safeguard, an oversight commissioner has been established for the DSPO scheme. The oversight commissioner will work with police throughout the application process, and, if required, make a submission to the Magistrate regarding a DSPO application. The oversight commissioner must have a reasonable opportunity to make a submission before a DSPO is made.
After a period of six months, a person who is subject of an order may apply to the Local Court for an order to be revoked.
Why introduce the DSPO scheme?
The proposed purpose of the DSPO scheme is to assist police to gather evidence of drug supply and manufacture. It also aims to have a disruptive and deterrent effect on a person who is subject to a DSPO and may consider re-engaging in the manufacture and supply of illicit drugs.
Concerns about the DSPO scheme
A number of concerns have been raised across the legal profession about the efficacy of the DSPO scheme:
- The Law Society for NSW made a submission on the bill outlining a number of concerns with the proposed DSPO scheme
- The New South Wales Council for Civil Liberties has expressed opposition to the scheme, submitting the scheme gives police extraordinary powers in circumstances where adequate powers currently exist to search and seize items related to drug activity
- Some members of parliament expressed concern with the scheme during debate of the bill in parliament
Excessive police power
The first concern raised about the scheme is that it provides police with significant and unjustified powers, that are likely to disproportionately impact on indigenous people, marginalised groups and people of low socio-economic status.
Specifically, a number of concerns have been raised about the threshold for making such an order. The threshold for the making of an order is the indictable quantity. This threshold casts the net unacceptably wide. For example, someone who supplied 1.25g of MDMA to fund a drug addiction, could be subject to a DSPO.
Further, these orders can be made for a period of 10 years after a person has been convicted of a serious drug offence. Concern has been raised about the length of time people can be subject to these orders and the unintended impact the lengthy period may have on their efforts at rehabilitation.
The DSPO model is based on the current Firearm Prohibition Order (FPO) scheme. Like the FPO scheme, it does not provide a limit on the frequency police can exercise their powers. A review of the FPO scheme found that firearms, ammunition and firearm parts were found in only 2% of searches. Concern has been expressed that the DSPOs may also result in the harassment of individuals by frequent searches with poor results.
It is also of concern that the scheme provides few safeguards for family members or others who live with the subject of an order, including family, carers and children.
The process of applying for a DSPO
Significant concerns have been raised about the process of making these orders, including the fact they will be made behind closed doors, without the subject of the order being informed or being offered the opportunity to make a submission on the application. Some have considered it unacceptable that someone whose liberties will be infringed upon in such a way will not be given this opportunity.
Impact on young persons
These orders may also have disproportionate impacts on juvenile offenders. Despite a number of submissions that juvenile offences should be excluded, an eligible person under the DSPO scheme includes a person who committed a relevant offence as a juvenile, as long as the person is now over 18. Concern has been raised that the inclusion of juvenile offenders renders young people open to breaches of their civil liberties for acts committed when they were children, inconsistent with the well-established principles that rehabilitation is paramount when sentencing young people.
Law and order approach to the issue of drug use and supply
Finally, the DSPO scheme has been criticised as representing a law and order approach to the issue of illicit drugs that further criminalises drug use. This is despite significant medical and scientific evidence that suggests that the problem of illicit drug use should be treated as a health issue, focusing on addressing causes of addiction and providing support to those with drug addictions. The majority of health and scientific evidence indicates that excessive and oppressive police powers will not change community behaviour or address issues relating to drug addiction and use in our communities.