By Paul Gregoire and Ugur Nedim
An appraisal of the Berejiklian government enacted two-year drug supply prohibition order (DSPO) pilot scheme, which commenced in May 2022 in four regions throughout New South Wales, has found that although the initiative resulted in a “small number of orders and convictions made”, most stakeholders consulted on its effectiveness consider it “could have a place in NSW policing”.
The NSW Bureau of Crime Statistics and Research (BOCSAR) last week published a report titled A Process Evaluation of the Drug Supply Prohibition Order Pilot Scheme, which reviewed an initiative that granted NSW police the power conducted warrantless searches upon those subject to a DSPO.
DSPO subjects must be over 18 and have a prior serious drug offence conviction within the last 10 years.
The scheme was trialled within the boundaries of four police area commands: Bankstown, Orana Midwestern, Coffs-Clarence and the Hunter Valley. Once issued by an authorised magistrate, a DSPO can last for up to two years, and it allows police officers to stop and search DSPO subjects without a warrant, and this enhanced surveillance extends to the subject’s premises and their vehicles.
BOCSAR researchers found that from June 2022 through to May 2024, NSW police officers within the four trial PACs applied for 27 DSPOs, of which 15 were granted and 12 of those orders resulted in at least one search.
Fifty eight warrantless DSPO searches were carried out over the pilot period, with 25 of these on a premises, 21 were searches of persons, and a dozen vehicle searches were also conducted.
The pilot, which resulted in 31 convictions, only four of which were for drug supply, concluded last June, and without any legislative amendments, the Act governing the scheme is set to sunset in May 2025. And the stakeholders that BOCSAR consulted for the report considered the scheme could continue with some modifications, along with an expansion of the regions in which it’s applied.
Double punishment
The DSPO scheme was rolled out via the Drug Supply Prohibition Order Pilot Scheme Bill 2020.
The initiative, however, was the subject of much heated parliamentary debate as it undermines the justice principle of double punishment, which ensures that offenders aren’t punished twice for the same crime, as the enhanced surveillance DSPO subjects receive can be considered extra penalisation.
“The NSW government made that commitment at the last election to provide police with an additional strategic tool to prevent and disrupt the supply and manufacture of prohibited drugs, and to deal with serious drug offenders who have reengaged or are likely to reengage with drug supply or manufacture activities,” said then treasury secretary Scott Farlow in his second reading speech.
Farlow further explained that the bill would achieve its aims in two ways. The first involved the scheme assisting NSW police officers in the gathering of evidence in regard to drug supply and manufacture, while the second way involved the deterrence effect the orders have on DSPO subjects in terms of reoffending.
The DSPO initiative is based on the firearms prohibition order (FPO) regime that’s been operating in NSW since November 2013, and it opens up those flagged by the NSW police commissioner as posing an issue in respect of possessing a firearm or ammunition to warrantless searches. In its first 10 months in operation, this scheme resulted in 642 searches, with no illegal weapons found.
The BOCSAR findings
The serious drug offences from within the Drug Misuse and Trafficking Act 1985 (NSW) that were captured by the scheme included “the cultivation of prohibited plants, owning drug manufacture apparatus or the manufacture or supply of prohibited drugs”. And two specialist positions were created for it: a DSPO oversight commissioner and authorised magistrates, who can issue orders.
A DSPO subject has to be notified of the imposition of the order. However, the reasons for it being imposed cannot be disclosed to them. DSPO subjects can apply for an order to be revoked, and one such order was brought to an end early during the pilot.
Over the pilot’s two-year period, 27 DSPOs were applied for, with 15 granted and 12 resulting in at least one search. A total of 58 warrantless searches were carried out, with 79 charges laid against nine of the DSPO subjects, with eight subjects then convicted in relation to 31 separate offences.
“Only four proven outcomes were for drug supply offences. These occurred against two DSPO subjects, who both received a penalty of imprisonment,” the BOCSAR report explains.
“The most common proven outcomes were for use/possess drugs. Where these proven offences did not have a concurrent proven outcome for drug supply, the subject received a monetary fine, intensive correction order or conviction only.”
BOCSAR also evaluated drug supply and manufacture in the four targeted areas, according to recorded incidents, over the pilot period.
Orana Midwestern had recorded 449 incidents for the 12 months to June 2020, which had dropped down to 58 over the 12 months to June 2024. For the same time frame, Bankstown rose from 73 incidents to 139 recorded incidents. The Hunter Valley had a slight decrease from 63 to 52, and Coffs-Clarence had a dramatic increase in incidents from 39 in mid-2022 to 112 halfway through last year.
Staggered expansion recommended
BOCSAR found that there were several reasons for the small number of DSPOs granted during the pilot, which included many of the prospective DSPO targets already being subjected to an FPO or were on their way to receiving one, along with the slim selection of just four PACs for the pilot roll out and the gathering of intelligence needed to justify the issuing of a DSPO being time consuming.
The agency found that stakeholders thought the scheme could be continued, but some legislative amendments would need to be actioned, including clearing up of the framework, a tightening of the eligibility criterion and the need for a review process.
“These limitations, considered alongside the implementation issues identified by our review, prevented a rigorous evaluation of whether the DSPO pilot scheme achieved its aims,” the BOCSAR researchers explain. “Therefore, any extension of the scheme would benefit from additional monitoring and evaluation.”
“This should include an outcome evaluation assessing the extent to which DSPOs are effective in deterring offenders from reengaging in drug supply and manufacture,” they said in ending. “If extended, consideration should also be given to geographical expansion outside of the pilot sites.”
