NSW’s War on Drugs: Drug Supply Prohibition Order Pilot Scheme Explained

Drug Supply Prohibition Order
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A new pilot scheme seeks to ‘send a clear message that drug-related crime will not be tolerated in our community and continue to support the important work that police do every day in fighting crime on our streets’. However, the measures outlined in the Drug Supply Prohibition Order Pilot Scheme Bill 2020 has been criticised by some as bordering on double punishment as individuals subject to an order face extra monitoring on the basis of a crime for which they have already served been punished for.

 

What is the Drug Supply Prohibition Order Pilot Scheme Bill 2020?

The Drug Supply Prohibition Order Pilot Scheme Bill 2020 (‘The Bill’) proposes a 2-year pilot scheme to be implemented in 4 areas:

  • Bankstown Police Command;
  • Coffs-Clarence;
  • Hunter Valley;
  • Orana Mid-Western districts.

Under the pilot scheme, a police officer will be able to seek the making of a drug supply prohibition order against a person who is over 18 years of age and has been convicted of a ‘serious drug offence’.

 

Who is an eligible person?

An ‘eligible person’ is defined as a person who:

  • Has been convicted of a serious drug offence within 10 years before the application day, and
  • Is at least 18 years of age on the application day.

 

What is a serious drug offence’?

There are a number of drug offences that fall within the definition of a ‘serious drug offence’. These include:

  • The following offences against the Drug Misuse and Trafficking Act 1985:
    • Section 11B: Possession of tablet press or drug encapsulator
    • Section 23(2)(a): Cultivation of a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants
    • Section 23(2)(b): Supplies a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants
    • Section 24(2): Manufactures or produces an amount of a prohibited drug which is not less than the commercial quantity applicable
    • Section (2A): Manufactures or produces an amount of a prohibited drug which is not less than the commercial quantity applicable AND exposes a child to that manufacturing or production process
    • Section 24A(1): Possession of precursors and certain apparatus for manufacture or production of prohibited drugs
    • Section 24B(1): Possession of prohibited drug precursors
    • Section 25A(1): Supplying prohibited drugs on an ongoing basis
    • Section 36Z(2)(b): Organises or conducts a drug premises, knowing that a child has access to the premises and, as a consequence of that access, the child is exposed to a drug supply process.

 

 

  • An offence against one of the following sections of the Drug Misuse and Trafficking Act 1985, but not if the offence relates only to a traffickable quantity or a small quantity
    • Section 23(1)(a): Cultivates, or knowingly takes part in the cultivation of, a prohibited plant
    • Section 23(1)(b): Supplies, or knowingly takes part in the supply of, a prohibited plant
    • Section 23(1A): Cultivates by enhanced indoor means a number of prohibited plants which is not less than the small quantity applicable to the prohibited plants, and less than the commercial quantity applicable for a commercial purpose
    • Section 24(1): Manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug
    • Section 24(1A): Manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug, and exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process
    • Section 25(1): Supply or knowingly taking part in the supply of, a prohibited drug
    • Section 25(1A): Supply or knowingly taking part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years
    • Section 25(2): Supply or knowingly taking part in the supply of, a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug
    • Section 25 (2A): Supply or knowingly taking part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial to a person under the age of 16 years is guilty of an offence.
    • Section 25 (2C): Procures a person under the age of 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf).
  • An offence against section 26 or 28 of the Drug Misuse and Trafficking Act 1985 that relates to an offence referred to in paragraphs (a)–(c), or (e) an offence committed in another jurisdiction that would constitute an offence referred to in paragraphs (a)–(d) if it were committed in New South Wales.

 

Making of a Drug supply prohibition order

Under the Bill, a Drug supply prohibition order may be made by an authorised magistrate if the magistrate is satisfied that the person:

(a) is an eligible person; and

(b) is likely to engage in the manufacture or supply of a prohibited drug.

 

Interestingly, in the making of the order, the authorised magistrate is not to make a drug supply prohibition order unless satisfied that the oversight commissioner has been given a reasonable opportunity to make a submission in relation to the making of the order, however, 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.

 

In addition, the application is not required to be decided in a courtroom and must not be made against a person when sentencing the person for an offence. Rather, it requires a separate application.

 

Commencement and duration of drug supply prohibition order

Commencement

A drug supply prohibition order commences when it is made, however, no power may be exercised before a copy is served personally on the person subject to the order.

 

Length of the Order

A drug supply prohibition order remains in force for whichever of the following is the lesser:

  • Until the end of the period specified by the authorised magistrate as the period for the order (which cannot be less than 6 months); or
  • Until the end of the pilot scheme period (which is 2 years);
  • Until the order is revoked.

 

Effect of a Drug Supply Prohibition Order

It is important to note that if an order is made if a drug supply prohibition order is in force, a police officer may, without a warrant, do one or more of the following:

  • Stop, detain and search the person;
  • Enter and search premises;
  • Stop, detain and search a vehicle.

 

However, these powers are only able to be exercised in a ‘pilot scheme area’.

 

When can police enter and search premises?

Under the Bill, if there is drug supply prohibition order is in force against a person, a police officer may, without a warrant, enter and search the following premises (known as searchable premises’)

  • A dwelling at which the person resides;
  • Premises that the police officer reasonably suspects are owned by the person or under the direct control or management of the person;
  • Premises that the police officer reasonably suspects are being used by the person for an unlawful purpose involving the manufacture or supply of a prohibited drug,

 

When can police stop, detain and search a vehicle?

Under the Bill, if there is drug supply prohibition order is in force against a person, a police officer may stop, detain and search a vehicle that is:

  • Being driven by or otherwise under the control or management of the person or occupied by the person; or
  • 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; or
  • Parked on an area that is part of, or provided for the use of, searchable premises and that is shared with another dwelling or premises, but only if the police officer reasonably suspects that the vehicle is being used by the person in relation to the manufacture or supply of a prohibited drug

 

Can police seize and detain items?

Under the Bill, a police officer may seize and detain all or part of a thing that the police officer suspects on reasonable grounds:

  • May provide evidence of the commission of a drug-related offence;
  • Is stolen or otherwise unlawfully obtained;
  • May provide evidence of the commission of a relevant offence within the meaning of Part 4, Division 1 of the Law Enforcement (Powers and Responsibilities) Act 2002 or an offence involving a prohibited drug, meaning:
  • Is a dangerous article within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002, meaning:
    • Firearm, a spare barrel for any such firearm, or any ammunition for any such firearm, or
    • Prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or
    • Spear gun,
    • An article or device, not being such a firearm, capable of discharging by any means—
      • (i)any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or
      • (ii)any substance capable of causing bodily harm, or
    • A fuse capable of use with an explosive or a detonator, or
    • A detonator.

It must be noted that the Drug Supply Prohibition Order Pilot Scheme Bill 2020 is currently at its Second Reading in the NSW Parliament and is not yet law.

If you or someone you know needs legal advice or representation for a criminal law matter, contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.

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