NSW Police Given the Power to Search Past Drug Offenders Without a Warrant

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By Paul Gregoire and Ugur Nedim

In mid-May, news hit that western Sydney is in the grips of a gang war, which involves feuding between the Alameddine and Hamzy families, and has resulted in 13 dead gang members.

So, the NSW Police Force has launched Taskforce Erebus in response.

In its first week, Erebus had reportedly seized a smorgasbord of drugs, eight firearms, 36 drug dealing phones and $710,000 worth of criminal proceeds. And 31 gang members had been arrested in the process.

Then, on the night of the 24 May, in conjunction with Strikeforce Sugarcane, the taskforce carried out a series of 29 raids across western Sydney, resulting in the arrest of 18 members of the Alameddine dial-a-drug dealer network.

New NSW police commissioner Karen Webb declared on Nine’s Today program that the raids “will make a huge difference” as the force had “disrupted an organised crime network” and “taken out the main players”, which has effectively “cut the head off the snake”.

A controversial aspect to the crackdown is that it coincides with the rollout of a new set of police powers that allow officers to target past drug offenders, by placing them on orders that permit their warrantless searching at any time, which includes the inspection of premises and vehicles.

As Sydney Criminal Lawyers senior associate Fahim Kahn told Al Jazeera last week the Drug Supply Prohibition Order (DSPO) scheme is likely to bring “more police harassment” as the laws are liable to be used disproportionately to target “specific localities and ethnicities”.

The pilot scheme

Passed in November two years ago, the Drug Supply Prohibition Order Pilot Scheme Bill 2020 was passed under Berejiklian era police minister David Elliott, who asserted the order scheme would assist police in evidence gathering, as well as deter those on the orders from reoffending.

Coming into play eighteen months later, these laws set up a two-year pilot program in four NSW police regions: Bankstown Police Area Command, Coffs-Clarence Police District, Hunter Valley Police District and Orana Mid-Western Police District.

Section 4 of the DSPO Pilot Scheme Act (NSW) permits police officers to stop, search and detain an individual on a DSP order at any time without a warrant. This further extends to the warrantless searching of their premises and vehicles, as well as the seizing of any unlawful or drug-related items.

The details as to who can be placed on a DSPO are set out in section 5 of the Act. An eligible person is someone over the age of 18, who’s been convicted of a serious drug offence within the last 10 years.

Contained in the Drug Misuse and Trafficking Act 1985 (NSW), the specific crimes that are considered serious drug offences are then listed in the section.

Any police officer may apply to a magistrate to have a past drug offender placed on a DSPO, under section 6, if the officer “reasonably believes the eligible person is likely to engage in the manufacture or supply of a prohibited drug”.

During the trial period, drug supply prohibition orders must be issued for at least six months. The orders can continue up until the end of the two-year pilot program or until they are officially revoked.

A past precedent 

Whilst flying under the public radar, these controversial laws, which constitute a form of double punishment, came under extreme criticism from non-government MPs at their time of passing, especially due to their potential to be abused by police.

As Elliott told the NSW Legislative Assembly on introducing the bill, the pilot model “is based on the successful firearm prohibition order scheme”, which has been operating in a warrantless manner since a 2013 amendment removed that requirement from a program first established in 1973.

Section 73 of the Firearms Act 1996 (NSW) permits the commissioner to place a person they consider “not fit, in the public interest, to have possession of a firearm” on an firearm prohibition order (FPO), which leaves them open to warrantless searches of their person, premises and vehicles.

There are a range of offences that relate specifically to breaching an FP order, under section 74 of the Firearms Act. FPO targets caught in the possession of a firearm can face these offences, which carry maximum sentences of 5 or 14 years imprisonment.

A statutorily required 2015 NSW Ombudsman assessment of the warrantless FPO scheme found that within its first 10 months, 642 FPO-related searches had turned up no firearms and only eight had resulted in other types of illegal items being discovered.

The state watchdog also found that the first 12 months of the enhanced FPO scheme saw 400 orders issued, whilst a total of 62 had been imposed during its first 40 years in operation. And the recent 600 plus searches involved 224 individuals, 18 percent of whom hadn’t been convicted in the past.

Overpolicing the overpoliced

As Sydney criminal lawyer Khan told Al Jazeera not only do the new powers allow officers to target their usual suspects, but the definition of a serious drug crime is so broad as to allow a young person caught with five ecstasy pills to be singled out for extra surveillance a decade later.

NSW police has a history of overpolicing certain sectors of society, such as First Nations people, the homeless, young people and those from less affluent settings. And laws targeting organised crime have been enacted in the past only to be overapplied to already overly scrutinised communities.

The O’Farrell government rolled out tougher consorting laws in 2012 to target outlaw motorcycle gang members. However, the state Ombudsman found that in their first three years of operation, these laws were used to target First Nations people, the homeless and the young.

Thirty seven percent of consorting warnings issued over that period were applied to First Nations people, despite their making up only around 3 percent of the overall NSW population.

Another example is the Suspect Targeting Management Plan. Established at the turn of the century, the STMP is a secret blacklist that allows NSW police to subject targets to enhanced monitoring and searching, regardless of whether they’ve been convicted of a crime in the past.

An evaluation of this program found that over a two year period in five NSW police local area commands 54 percent of those placed on the targeted list were Aboriginal people.

So, while the DSPO pilot has been launched with great fanfare alongside a crackdown on western Sydney crime gangs, experts fear that it’s likely to result in the targeting of whomever is within the usual radar of police, rather than any individuals found posing a substantial drug offending threat.

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