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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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CONTROLLED SUBSTANCES (DRUG DETECTION POWERS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (15:35): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Controlled Substances Act 1984 (the Act) sets out provisions dealing with the powers of authorised officers to conduct drug-related investigations. This Bill amends the Act to:

regulate the use of drug-detection dogs in people and vehicle screening operations;

enable police to establish and conduct drug-detection screening operations on identified drug-transit routes; and

amend Section 52 dealing with the power of search and seizure.

As part of its strategy to deal with drug-related crime, SAPol has purchased and trained three passive-alert drug-detection dogs (drug-detection dogs). These dogs are specifically trained to detect odours from such drugs as heroin, amphetamines, cannabis and cocaine (and their derivatives). On detecting an odour, the dogs will sit passively next to the source.

Some ambiguity exists as to the extent to which police can carry out people-screening operations using drug-detection dogs. Legal authority suggests that the use of drug-detection dogs for such operations does not constitute a search. Nevertheless, SAPol has recommended that the Act be amended to clarify this matter and ensure that there is a sound legal basis for using the dogs for drug-detection purposes. The Government agrees that it would be prudent to amend the legislation.

Advances in technology have also provided law-enforcement agencies with electronic drug-detection systems that enhance their ability to detect the presence of drugs on people and property. An example includes the use of both odour-detecting and swabbing equipment on luggage at airports. Although these systems are not widely in use in South Australia, the opportunity is being taken to amend the Act to authorise and regulate the use of such systems for general drug detection.

In addition, the Bill will provide legislative support to allow police to conduct vehicle-stopping operations solely for the purpose of drug detection on drug transit routes.

Amendments will also be made to section 52 of the Act to reduce the level of suspicion required for a search under the Act from a reasonable belief to a reasonable suspicion. This is consistent with the level required for searches under the Summary Offences Act 1953.

The amendments in the Bill are consistent with South Australia's Strategic Plan Objective 2, Improving Wellbeing, Target 2.8 Reducing Victim Reported Crime and the aim of the South Australian Drug Strategy 2005-2010, which is to 'improve the health and well being of all South Australians by preventing the use of illicit drugs and the misuse of licit drugs'. A key area of the Strategy is to reduce the supply of drugs through strategies that will reduce the availability and supply of illegal drugs.

GENERAL DRUG-DETECTION

SAPol's drug-detection dogs are already being used routinely to assist with drug-detection at bus depots, transport companies, Adelaide Airport, during the execution of drug warrants and at major events such as the exterior of the Big Day Out. They have had success in detecting various quantities of cannabis, heroin, cocaine, ecstasy and pseudoephedrine.

With the success of the dogs and proposals for continuing and wider use of them, SAPol has suggested that legislation be enacted to clarify the police powers in using dogs for drug-detection. SAPol is not seeking open-ended legislation but rather wants the legislation to give authority to conduct operations in places such as licensed premises and at public events and public-transport hubs and other places where drug detection may increase public safety.

New South Wales and Queensland have both enacted legislation to authorise the use of drug-detection dogs for people screening. Those laws have been used as a guide in formulating the South Australian legislation.

The Bill will allow police to carry out general drug–detection on a person who is in, or is attempting to enter or leave, a licensed premises or car parks used by the patrons of the licensed premises, public venues or car parks used by the patrons of the public venue and public passenger carriers or any place the carrier may take up or set down passengers. Any property in the possession of such a person or that is located in these areas will also be subject to general drug-detection.

The Bill also allows a police officer of or above the rank of inspector to authorise the exercise of these powers in other public places. The authorisation must be granted in accordance with guidelines issued by the Commissioner of Police. This will enable police to target public places that from time to time pose a risk to public safety through drug activity. The authorisation can be varied or revoked by the officer at any time, but in any case cannot exceed a period of 14 days unless renewed by the senior police officer for a further 14 days.

General drug-detection involves the walking or placement of a drug-detection dog in the vicinity of a person or property or the use of an electronic drug detection system for the purpose of detecting drugs. It does not involve the search of the person or property.

A drug-detection dog must complete a course of training approved by the Commissioner for the purpose of detecting the presence of a controlled drug, controlled precursor or controlled plant. An electronic drug detection system is an electronic device or system approved by the Commissioner and must be used in a manner prescribed by regulation. The regulations will limit the use of an electronic drug-detection system so that the general drug-detection power cannot be used to, in effect, conduct a search of a person or property.

To avoid doubt, an indication by a drug-detection dog or an electronic drug-detection system of the presence of a controlled drug, controlled precursor or controlled plant will constitute a reasonable suspicion that such an item is present. This would allow a police officer to use the indication to form the basis of the suspicion to conduct a formal search under section 52 of the Act.

DRUG-TRANSIT-ROUTES

Over several years SAPol has identified that large quantities of prohibited drugs are trafficked between States. Intelligence indicates New South Wales is a receiver of large quantities of cannabis from South Australia and in return supplies quantities of heroin, amphetamines, ecstasy and cocaine. There is trafficking of prohibited drugs between South Australia and other mainland States.

Under the current law, SAPol has no specific power to stop vehicles at random on known drug- transport routes to check for the presence of drugs. The Controlled Substances Act 1984 provides police with the power to stop, search and detain vehicles that are reasonably suspected of containing a substance that would afford evidence of an offence against the Act. Similarly Section 68 of the Summary Offences Act 1953 permits a police officer to stop, search and detain a vehicle if there is a reasonable suspicion that it contains stolen goods or objects, possession of which constitutes an offence or evidence of the commission of an indictable offence. Both sections require the police officer to form a suspicion about a vehicle before the authority can be used. Unless specific information is known of a vehicle transporting drugs, police are unable to use these powers to detect a vehicle and so disrupt drug trafficking between States or within this State.

On occasion, SAPol has participated in combined vehicle-stopping operations with other Government agencies, such as Primary Industries and Resources S.A. and the Department for Transport, Energy and Infrastructure. This has allowed them to use drug-detection dogs to screen for drugs in vehicles. However, the Government agrees with SAPol that the lack of any specific power to stop vehicles on known drug transit routes is an unnecessary impediment to SAPol's fight against the transportation of drugs interstate and in country areas.

In preparing the legislation the Government has drawn on the experience from the trials conducted in New South Wales. The Bill will allow police to conduct drug-transit-route operations in areas that a senior police officer reasonably suspects is being, or is likely to be, used for the transport of controlled drugs, controlled precursors or controlled plants. The authorisation may only be granted in accordance with guidelines issued by the Commissioner of Police and must define the area to which it relates and the conditions of operation.

The authorisation can be varied or revoked by the officer at any time, but in any case cannot exceed a period of 14 days unless renewed by the senior police officer for a further 14 days.

As the aim of the legislation is to interfere with interstate and intrastate drug transit routes, the Government does not propose that the power be used to allow the random stopping of vehicles within the metropolitan area. Rather the Bill provides that a search area must be more than 30 kilometres from the General Post Office. This will provide consistency for police and ensure major routes, such as the Princes Highway, will be included. This approach targets the transport of drugs between States and within State regional areas but limits the disruption to road users in the metropolitan area.

Upon authorisation police may establish drug-detection points where the driver of a vehicle may be required to stop. This does not prevent police from stopping vehicles at other locations within the search area. Police may then carry out general drug-detection using drug-detection dogs or electronic drug-detection systems. To assist this process police my direct a person to open any part of the vehicle and allow the dog to enter any part of the vehicle which is not designed to carry passengers. It does not permit the police to conduct a search of the vehicle or person, unless permitted by legislation.

The Commissioner will be required to report to the Attorney General each year the number of authorisations granted for both general drug-detection operations and drug-transit-route operations, the public places to which they applied and the period for which each authorisation applied and the number of occasions on which a drug-detection dog or electronic drug-detection system indicated the detection of the presence of a controlled drug, controlled precursor or controlled plant. This will be reported to the Parliament.

GENERAL PROVISIONS

In any proceedings relating to the use of the new powers, the Commissioner of Police may produce certificates that a public place was subject to an authorisation that was properly granted by a senior police officer or that a certain area (relating to a drug transit route operation) was subject to an authorisation that was properly granted by a senior police officer, or that a dog used to carry out any drug-detection work was in fact a drug-detection dog or a device or system used to carry out general drug detection was an electronic drug-detection system. The production of such certificate will constitute proof, in the absence of proof to the contrary, of the matters certified.

AMENDMENT OF SECTION 52 CONTROLLED SUBSTANCES ACT

The current level of suspicion required for a member of the police to search a person for a drug offence is not in line with the suspicion required in other South Australian Acts or interstate jurisdictions. Although the most appropriate authority to be used for the purpose of drug offences is Section 52(6) Controlled Substances Act 1984, there is nothing preventing officers from using Section 68 Summary Offences Act 1953 to search a person for drug-related offences.

This creates an inconsistency as section 52(6) of the Controlled Substances Act requires a reasonable belief while section 68 of the Summary Offences Act 1953 requires a reasonable suspicion. There is nothing in Hansard to suggest it was the intent of Parliament to afford persons suspected of drug related offences a greater protection than persons having committed non-drug offences. In fact the preceding Act, being the Narcotics and Psychotropic Drugs Act 1974, required only a 'reasonable suspicion' be formed as to whether a person was in possession of a drug.

The Bill amends Section 52(6) so that police need only reasonably suspect that a person is in possession of a controlled drug, controlled precursor or controlled plant. Similarly, subsections (7) and (8) have been amended by removing the necessity for police to take a suspected person before a Justice of the Peace to search if the suspected person requests.

The Bill also amends section 52(9) to allow for a search to be conducted where equipment could afford evidence of an offence. This is consistent with the recently enacted Controlled Substances (Prescribed Equipment) Amendment Bill 2007, which creates the offence of possession prescribed equipment without reasonable excuse. This equipment, which includes hydroponics and clandestine laboratory equipment, is regularly transported in vehicles, vessels and aircraft.

The Bill also makes consequential amendments to the Summary Offences Act 1953 to make it clear that drug-detection dogs or electronic drug-detection systems can be used in exercising powers under Part 15.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

Clauses 1, 2 and 3 are formal.

Part 2—Amendment of Controlled Substances Act 1984

4—Amendment of section 4—Interpretation

This clause inserts definitions required for the measure. In particular—

drug detection dog means a dog that has completed training of a kind approved by the Commissioner of Police for the purpose of detecting the presence of a controlled drug, controlled precursor or controlled plant;

electronic drug detection system means—

(a) an electronic device of a kind approved by the Commissioner of Police; or

(b) a system, of a kind approved by the Commissioner of Police, that involves the use of an electronic device,

for the purpose of detecting the presence of a controlled drug, controlled precursor or controlled plant;

general drug detection means—

(a) walking or otherwise placing a drug detection dog in the vicinity of a person or property; or

(b) using an electronic drug detection system in relation to a person or property in a manner prescribed by regulation,

for the purpose of determining whether the dog or system (as the case may be) detects the presence of a controlled drug, controlled precursor or controlled plant (but does not include any other conduct by a person that would constitute a search).

5—Amendment of section 52—Power to search, seize etc

Clause 5 inserts a new subsection into section 52. This subsection provides that a member of the police force may, in exercising powers pursuant to a warrant issued under subsection (4) or any other powers under section 52, use a drug detection dog or an electronic drug detection system.

6—Insertion of sections 52A, 52B, 52C and 52D

This clause inserts new provisions as follows:

52A—General drug detection powers

This proposed section provides that a member of the police force may carry out general drug detection in relation to—

(a) any property in an area to which the section applies; and

(b) any person who is in, or is apparently attempting to enter or to leave, an area to which the section applies; and

(c) any property in the possession of such a person.

The provision applies to the following areas:

(a) licensed premises or a carparking area specifically provided for the use of patrons of any licensed premises;

(b) a public venue or a carparking area specifically provided for the use of patrons of any public venue;

(c) a public passenger carrier or any place at which public passenger carriers may take up, or set down, passengers;

(d) a public place in relation to which the exercise of powers under this section is authorised by a senior police officer.

52B—Special powers relating to drug transit routes

This proposed section provides that a senior police officer may, if he or she reasonably suspects that an area is being, or is likely to be, used for the transport of controlled drugs, controlled precursors or controlled plants in contravention of the Act, authorise the exercise of powers under this section in relation to the area. The proposed powers are that a member of the police force may—

(a) require the driver of a vehicle within the area to stop the vehicle (whether at a drug detection point or at any other location); and

(b) detain the vehicle and carry out general drug detection in relation to the vehicle and any persons or property in or on the vehicle; and

(c) allow a drug detection dog to enter any part of the vehicle not designed for the purpose of carrying passengers while the vehicle is moving; and

(d) direct a person to open any part of the vehicle and give such other directions as are reasonably necessary for, or incidental to, the effective exercise of powers under this section.

52C—Report to Minister on issue of authorisations

This proposed section provides that the Commissioner of Police must, on or before 30 September in each year, provide a report to the Attorney-General specifying the following information in relation to the financial year ending on the preceding 30 June:

(a) the number of authorisations granted by senior police officers under proposed sections 52A and 52B during that financial year;

(b) the public places or areas in relation to which those authorisations were granted;

(c) the periods during which the authorisations applied;

(d) the number of occasions on which a dog or a drug detection system indicated detection of a controlled drug, precursor or plant in the course of the exercise of powers under the new provisions.

52D—General provisions relating to exercise of powers

Proposed new section 52D contains provisions relating to the exercise of powers by police officers and other authorised officers and evidentiary matters.

7—Redesignation of section 52A

Clause 7 is a drafting amendment.

8—Amendment of section 63—Regulations

Clause 8 is a consequential amendment.

Schedule 1—Related amendment to Summary Offences Act 1953

1—Insertion of section 74BAAB

The Schedule makes a related amendment to the Summary Offences Act 1953 to allow a police officer to use a drug detection dog or electronic drug detection system when exercising powers under Part 15 of that Act.

Debate adjourned on motion of Mrs Redmond.

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