Australia: What is a drug supply prohibition order in New South Wales?

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The NSW Government has commenced a pilot scheme enabling the enforcement of extensive search powers targeting convicted drug dealers, two years after the legislation passed parliament.

The 'Drug Supply Prohibition Order Pilot Scheme' will be a two-year pilot program in four locations: Bankstown, Dubbo, Hunter Valley, and Coffs Harbour.

Whilst the legislation was originally passed by parliament in November 2020, the scheme was only recently launched in May 2022.

Whilst Labor criticised the government for their slow enactment of the laws, Police Minister Paul Toole asserted that the "complex" scheme had come about "very quickly".

The extensive powers enable police officers to conduct searches of convicted drug dealers, as well as their residence and vehicles, at any time.

The scheme faced fierce criticism from the New South Wales Law Society, the NSW Council for Civil Liberties, and the Greens when the bill was originally proposed.

"Imposing these oppressive law-and-order regimes on the community is like constantly patching up a hole. We do not change community behaviour or solve the challenges that create drug addictions and drive people to have addictions by increasing excessive and oppressive police powers." commented Jenny Leong, Greens MP.

The Government has stated that it expects the scheme to have a "disruptive and deterrent effect on drug supply and manufacture".

WHAT IS A DRUG SUPPLY PROHIBITION ORDER?

What is a drug supply prohibition order? Pursuant to the section 4 of the Drug Supply Prohibition Order Pilot Scheme Act 2020(NSW), if a drug supply prohibition order is in force against a person, a police officer may without a warrant:

• stop, detain, and search the person,
• enter and search a dwelling at which the person resides,
• enter and search a premises that the police officer reasonably suspects are owned by the person, under their direct control or management, or are being used by the person for an unlawful purpose involving the manufacture or supply of a prohibited drug.
• stop, detain, and search a vehicle being driven by or otherwise under the control or management of the person or occupied by the person,
• stop, detain, and search a vehicle parked on an area that is part of, or provided for the use of, searchable premises, but not if the area is shared with another dwelling or premises.

Officers will also be able to stop, detain, and search a vehicle parked on an area that is part of a searchable premises, even if the area is shared, if they reasonably suspect that the vehicle is being used by the person in relation to the manufacture or supply of a prohibited drug.

Officers will only be able to exercise these powers in a pilot scheme area or an area that the police officer reasonably believes to be in a pilot scheme area.

The exercise of the power will also have to be reasonably required to decide whether the person is involved in the commission of an offence involving a prohibited drug.

If the person subject to the order was not present during a search on their premise or vehicle, they must be given written notice about the search after.

HOW IS A DRUG SUPPLY PROHIBITION ORDER MADE?

Drug supply prohibition orders may be made against persons at least 18 years of age and who have been convicted of a serious drug offence within 10 years.

A serious drug offence is defined to include the following offences under the Drug Misuse and Trafficking Act 1985 (NSW):

• possession of a tablet press or drug encapsulator (section 11B),
• possession of a precursor, or a drug manufacture apparatus, intended by the person for use in the manufacture or production of a prohibited drug (section 24A(1)).
• possession a precursor of prohibited drugs, in a quantity of more than what is permitted (section 24B(1)).
• Drug supply on an ongoing basis (section 25A(1)),
• a second or subsequent offence in organising or conducting in organising or conducting, any drug premises (section 36Z(1)).

Offences involving cultivation including by enhanced indoor means, supply, manufacture, production of a prohibited drug or plant and exposing a child to the manufacture or production of a prohibited drug will be classified as a serious drug offence, but not if the offence relates only to less than an indictable quantity.

Any offence committed in another jurisdiction that would constitute any of the aforementioned offences if it were committed in New South Wales, and conspiring to commit any of the aforementioned offences, will also be considered a serious drug offence.

A police officer must apply to the Local Court for the drug supply prohibition order to be made.

An order may then be made if it is deemed that the police officer reasonably believes that the eligible person is likely to engage in the manufacture or supply of a prohibited drug, as per section 6.

Upon the application being made, a Magistrate will consider:

• information considered 'adverse' to the application for an order, including steps that the eligible person has taken to stop or reduce their risk of committing drug-related offences,
• whether the person associates with other persons who are involved in the manufacture or supply of a prohibited drug.
• whether the person is a member of, or associates with, a criminal group,
• whether the person has cash or assets that are significantly out of proportion to the person's income,
• relevant criminal intelligence, and
• the serious drug offence/s someone has been convicted.

In determining whether to make a drug supply prohibition order, an authorised magistrate may take into account whether there are other practicable alternatives that could be used to reduce the risk that the person will engage in the manufacture or supply of a prohibited drug.

The person who is to be the subject of the drug supply prohibition order is not entitled to be told about the application and is not permitted to make a submission regarding its creation.

They are not permitted to know the reasons for the decision to make the order, and are not to be given access to, or provided with, a document that formed part of the application.

However, no power may be exercised under a drug supply prohibition order before a copy of the order has been served personally on the subject of the order.

The minimum period of a Drug Supply Prohibition Order is 6 months.

CAN A DRUG SUPPLY PROHIBITION ORDER BE REVOKED?

The subject of a drug supply prohibition order may apply to the Local Court to have the order revoked, pursuant to section 13.

The court may then decide to affirm, vary, or revoke the order.

The court may only revoke the drug supply prohibition order if it is satisfied that:

• the order is unreasonably onerous in the circumstances,
• the subject of the order is not likely to engage in the manufacture or supply of a prohibited drug, or
• the risk of the subject of the order engaging in the manufacture or supply of a prohibited drug could be mitigated in another way.

An application to revoke the order must not be made by the subject of the order within 6 months after a copy of the order has been served personally on them, or an application for the revocation of the order is refused by the Local Court.

An application for the revocation of a drug supply prohibition order may be made by the Commissioner of Police or the oversight commissioner at any time.

Despite this, if an order is successfully revoked, police are not prevented from making a further application, but have to wait 6 months to apply again against the same subject of the order.

Ordinarily, the order will cease at the end of the period specified by the authorised magistrate as the period for the order or when the pilot scheme period ceases.