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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-06-17 Daily Xml
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CONTROLLED SUBSTANCES (DRUG DETECTION POWERS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 1 May 2008. Page 2625.)

Clause 4.

The Hon. SANDRA KANCK: I move:

Page 3, lines 18 to 20 [clause 4(3)]—Delete subclause (3) and substitute:

(3) Section 4(1)—after the definition of product insert:

relevant officer is—

(a) the Commissioner of Police; or

(b) if the Commissioner of Police is unavailable to issue an authorisation, the Deputy Commissioner of Police; or

(c) if the Commissioner of Police and the Deputy Commissioner of Police are both unavailable to issue an authorisation, an assistant commissioner of police;

(d) if the Commissioner of Police, the Deputy Commissioner of Police and all assistant commissioners of police are unavailable to issue an authorisation, a police officer above the rank of superintendent;

This amendment raises the bar. I said when we were dealing with this at the second reading stage that I would be moving amendments that would put this legislation on a par with the terrorist legislation. Of course, the irony is that, in many ways, this legislation is tougher than that which applies to terrorists; nevertheless, I thought it was reasonable to bring it down to the same status as applies to terrorists. This amendment ensures that the officer exercising these powers has to be a senior police officer of or above the rank of inspector.

The Hon. P. HOLLOWAY: The government opposes the proposed amendment. Clause 6 of the bill provides that a senior police officer may authorise the conduct of general drug detection in a public place and drug detection on a drug transit route. The term 'senior police officer' is defined in clause 4 to mean an officer of or above the rank of inspector.

As this is the first of a series of amendments, I suggest that it be treated as a test for the series. This amendment deletes the definition of 'senior police officer' and replaces it with a new definition of 'relevant officer', with a cascade effect from the Commissioner down to an officer above the rank of superintendent.

In the past, the parliament has identified that the rank of inspector provides a high level of operational command. It has set a precedent in the use of this rank in operational circumstances in such areas as the authorisation of road blocks, the declaration of danger areas, and approval of the use of special powers of entry into private premises for certain things, each pursuant to the Summary Offences Act 1953. An inspector may issues a drug warrant if, on the receiving of information being given under oath, he or she forms a reasonable cause to suspect an offence has been, is being, or is about to be committed pursuant to the Controlled Substances Act 1984.

The proposed legislation requires a senior police officer to authorise the use of general drug detection powers in certain circumstances. The senior police officer is not authorising officers to search, break into premises or restrict the movement of persons for extended periods of time, as do the above-mentioned authorities. The government sees no reason why, for the level of authorisation, approval for the use of drug detection powers should be any different from those currently legislated.

The Hon. D.W. RIDGWAY: I rise to indicate that, along with the government, the opposition will not be supporting this amendment for very much the same reasons outlined by the minister.

The Hon. D.G.E. HOOD: Neither will Family First.

The Hon. A. BRESSINGTON: I will not be supporting this amendment.

Amendment negatived; clause passed.

Clause 5 passed.

Clause 6.

The Hon. D.G.E. HOOD: I am not proceeding with my amendment.

The Hon. SANDRA KANCK: My amendments Nos 2 and 3 are consequential. I move:

Page 4, line 30—Delete '14 days' and substitute '24 hours'

Again, this reflects the undertaking I gave in my second reading contribution. New section 52A(3) allows for the authorisation of the exercise of general drug detection powers, and new subsection (4) allows the authorisation to be granted for up to 14 days, yet the time for investigative authorisation under the Terrorism (Police Powers) Act is 24 hours, so it seems a little over the top to allow an authorisation for drug detection to go for 14 days.

If we act as though people who use drugs are the equivalent of terrorism suspects, such authorisations should be consistent with that act. This amendment therefore brings about that consistency.

The Hon. P. HOLLOWAY: The government opposes the proposed amendment. Clause 6 provides that a senior police officer may authorise the conduct of general drug detection in a public place and drug detection on a drug transit route. The authorisation may operate for an initial period not exceeding 14 days and may be renewed from time to time by a senior police officer for a further period not exceeding 14 days.

The proposed amendment deletes the initial operating period of 'not exceeding 14 days' and replaces it with '24 hours'. In amendment No. 6, the Hon. Ms Kanck proposes to delete the renewal provision of 'not exceeding 14 days' and replace it with 'but only so that the total period of operation of the authorisation does not exceed 48 hours'. As this is the first of a series of amendments, I suggest that it be treated as a test for the series.

The proposed legislation has been modelled on both the Police Powers and Responsibilities Act 2000 in Queensland and the Law Enforcement (Powers and Responsibilities) Act 2002 in New South Wales. However, it should be noted that neither of these acts provides restriction on the period of time in which general drug detection in a public place can occur. The only limit is the Police Powers (Drug Detection Trial) Act 2003 in New South Wales, which authorises the conduct of drug transit route operations and provides that an authorisation cannot exceed 14 days.

In January 2005, the New South Wales Ombudsman published review into the Police Powers (Drug Detection In Border Areas Trial) Act 2003. During the review the Ombudsman identified that the existing three-day limit on an authorisation to conduct a drug transit route was too restrictive, with drug couriers being able to predict with a degree of certainty when an operation was due to conclude. If the act says three days you will know that you just have to hang around until the end of three days and then it has to end. As a result, the couriers were able to delay their activities to avoid detection. As a result, the Ombudsman recommended that the act be amended to permit the conduct of an operation at any time within the authorised 14 day period.

The new Police Powers (Drug Detection Trial) Act 2003 (in New South Wales) commenced in February 2007 and contained the recommended amendments. The government agrees with the position taken by the New South Wales Ombudsman that a 24-hour limit will significantly reduce the effectiveness of the legislation and increase the predictability of police activities. Allowing police to extend an operation by only a further 24 hours provides no remedy to this problem and will significantly reduce the effectiveness of the legislation.

The Hon. D.W. RIDGWAY: Whilst we had some concerns about the road block detections as far as giving the dogs access to the passenger spaces, particularly in prime movers of semitrailers, we do not support the amendment of the Hon. Ms Kanck to allow this declaration to last only 24 hours. It seems reasonable to allow the 14 days, as proposed by the government.

Amendment negatived.

The Hon. SANDRA KANCK: I move:

Page 5, after line 2 [clause 6, inserted section 52A]—

After subsection (6) insert:

(6a) A member of the police force may only detain a person, by directions given under this section, for so long as is reasonably necessary to carry out general drug detection in relation to the person and any property in the possession of the person.

This amendment requires that when a person is detained it can be only for a time that is reasonably necessary. I have done this because it is simply lacking in the bill at the present time.

The Hon. P. HOLLOWAY: The proposed amendment states that police may only detain a person, by directions given under this section, for as long as is necessary to carry out general drug detection in relation to the person and property in possession of the person. This is correct at law and is current practice of police, so the government can accept this amendment.

The Hon. D.W. RIDGWAY: The opposition supports the amendment.

Amendment carried.

The Hon. SANDRA KANCK: I move:

Page 5, after line 36 [clause 6, inserted section 52B]—

After subsection (1) insert:

(1a) A relevant officer who grants an authorisation under subsection (1) must make a written record of the grounds on which the authorisation is granted.

This is an accountability measure. It ensures that there will be more detailed reporting. It seems that this would be a very reasonable and sensible thing to require the recording of these actions. If a police officer is actually put in a position of having to write it down, I think they are going to think a little bit more before they take the action.

The Hon. P. HOLLOWAY: The amendment proposes that a relevant officer who grants an authorisation for the conduct of a drug transit route operation must make written record of the grounds on which the authorisations made. The government opposes this amendment. New section 52B requires that an authorisation granted by a senior police officer must be done in accordance with the guidelines issued by the Commissioner; that is in the new section. I have been advised by police that a requirement of the guideline will be that the senior police officer will record the grounds on which they granted the order. This record is subject to and can be tested in any judicial proceedings which may follow. The government is not convinced that this matter need be set out in the legislation itself. It can be tested in any judicial proceedings, and that is why the police guidelines will require the senior officer to record the grounds.

The Hon. D.W. RIDGWAY: I indicate that the opposition does not support the amendment.

Amendment negatived.

The CHAIRMAN: Amendment No. 16 is consequential to the amendment that was successful.

The Hon. SANDRA KANCK: Yes. I move:

Page 6, after line 27 [clause 6, inserted section 52B]—After subsection (5) insert:

(5a) A member of the police force may only detain a person who is in a vehicle, by directions given under this section, for so long as is reasonably necessary to carry out general drug detection in relation to the vehicle and any persons or property in the vehicle.

The Hon. P. HOLLOWAY: The proposed amendment states that police may only detain a person who is in a vehicle by directions given under this section for as long as is necessary to carry out general drug detection in relation to the vehicle and any person or property in the vehicle. This is correct at law and is the current practice of police. So, the government accepts the amendment.

The Hon. D.W. RIDGWAY: The opposition supports the amendment.

Amendment carried.

The Hon. SANDRA KANCK: I move:

Page 7, after line 15 [clause 6, inserted section 52C(1)]—After paragraph (c) insert:

(ca) the number of vehicles and persons in relation to whom general drug detection has been carried out under section 52A and 52B during that financial year;

(cb) the age, race and residential postcode of persons in relation to whom general drug detection has been carried out under section 52A and 52B during that financial year;

(cc) the number of complaints made by members of the public during that financial year that relate to the exercise of powers under section 52A and 52B;

This is simply an additional reporting requirement to bring about increased accountability.

The Hon. P. HOLLOWAY: The government opposes the amendment. The proposed amendment would require police to count the total number of people in vehicles which are subject to drug detection activities, obtain the age, race and residential postcode of persons to whom general drug detection has been carried out, and record the number of complaints made by members of the public so as to report them to the Attorney-General. The proposed amendments are not only impractical but, in one case, without lawful authority.

The proposed legislation has been developed to permit police to conduct general drug detection on large numbers of people and/or vehicles in such a way that, as far as reasonably practicable, prevents any undue delay or inconvenience. I have been advised that, as recently as last weekend, a popular city nightclub had a line-up of patrons four people wide and 100 metres long. The proposed amendments would require police to detain these people so they could not only count them but speak to each of them to obtain their age, race and postcode, resulting in significant inconvenience, delay and potential embarrassment.

Section 74A of the Summary Offences Act 1953 authorises police to obtain the personal particulars of a person if the officer has a reasonable cause to suspect that a person has committed, is committing, or is about to commit, an offence; or if a person may assist in the investigation of an offence or suspected offence. At the time of conducting general drug detection, no suspicion is attached to an individual person. It is not until the drug detection dog or electronic drug detection system indicates the presence of a drug that a suspicion is formed. There is no legitimate authority to underpin the proposed amendment to record the age, race and residential postcode of every person to whom general drug detection is carried.

The honourable member has proposed the number of complaints made by members of the public that relate to the exercise of powers under sections 52A and 52B be reported at the end of each financial year. The police are provided with a large number of legislative authorities, many of which involve the searching of persons. There are no requirements to report complaints made against police for the use of any of these authorities.

The Police Complaints Authority is responsible for the investigation of complaints made against police. The authority is required to report to the President of the Legislative Council and the Speaker of the House of Assembly each year on the operation of the authority for the preceding 12 months, while also delivering a copy to the minister. It is through this report that the authority may highlight any exceptional misuse of the drug detection powers.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting this amendment. I think the minister highlighted that, if you have a large group of patrons outside a venue and the police are required not only to work the detection dog but then to ascertain people's names and all their particular details, it would slow the whole process down. If somebody is actually in the line-up, or in the area, and they can see that the dog crew is coming they will grab their gear and go.

An honourable member interjecting:

The Hon. D.W. RIDGWAY: I do not think I have ever seen a queue 100 people long and four deep outside the Wolseley Hotel. We will not be supporting the amendment.

Amendment negatived.

The Hon. SANDRA KANCK: I move:

Page 7, lines 19 and 20 [clause 6, inserted section 52C(1)(d)]—Delete 'in a public place or area in accordance with the authorisations' and substitute:

under section 52A and 52B.

This relates to the new section 52C, which requires the Commissioner of Police to report to the minister. As currently worded, it refers to 'the exercise of powers in a public place or area in accordance with the authorisations'. This broadens it to any use of these powers in respect of new sections 52A and 52B.

The Hon. P. HOLLOWAY: The proposed amendment will require the Commissioner of Police to report on the number of occasions a drug detection dog or electronic drug detection system indicates the presence of a controlled drug, controlled precursor or controlled plant during any drug detection activity under sections 52A and 52B. As this will result in a more comprehensive report of the success or otherwise of the proposed authority, the government accepts this amendment.

The Hon. D.W. RIDGWAY: The opposition does not oppose it.

Amendment carried.

The Hon. SANDRA KANCK: I move:

Page 7, after line 20 [clause 6, inserted section 52C]—After subsection (1) insert:

(1a) The Commissioner for Social Inclusion (or, if no person is appointed as the Commissioner for Social Inclusion, the Minister for Families and Communities) must, within 20 months after the commencement of sections 52A and 52B, prepare and provide to the Attorney-General a report in relation to the impacts of those sections on disadvantaged persons.

(1b) A person preparing a report under subsection (1a) must, in preparing the report, consult (in such manner as the person thinks fit) with youth, indigenous and multicultural groups.

New section 52C requires the Commissioner of Police to report to the minister on the issue of authorisations. My amendment is also requiring a report to be done by the Minister for Social Inclusion within 20 months of the commencement of sections 52A and 52B. Specifically, I am asking that this report relate to the impacts on disadvantaged people in our society. I suppose the second half of it is specific that it should include youth, indigenous and multicultural groups.

The Hon. P. HOLLOWAY: The government opposes the amendment. The proposed amendment will require the Commissioner for Social Inclusion, or a person appointed to do so, to prepare a report for the Attorney-General in relation to the impacts of the proposed sections 52A and 52B on disadvantaged people, and in preparing the report consultation must occur with youth, indigenous and multicultural groups.

The purpose of the proposed legislation is to clarify the ambiguity that exists in the use of drug detection dogs in general drug detection operations. The legislation provides SAPOL with more flexible strategies for the detection of drug activity. It will authorise police to conduct operations in such places as licensed premises, public events, public transport hubs and other public places where drug detection may increase public safety.

Such public areas are not specific to one particular social or ethnic group; rather they are frequented by a large cross-section of our community. Those persons who feel they have been unfairly treated are afforded the opportunity to register a complaint with the Police Complaints Authority. Further to this, the Commissioner of Police is required to report each year to the Attorney-General on the use of the proposed legislation. The government sees no need to extend the reporting process any further.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting this amendment. So often in this place we see extra reporting burdens placed on all sorts of legislation. The opposition does not see that this report will enhance the effectiveness of the legislation and, therefore, it does not see any need to support it.

The Hon. SANDRA KANCK: This was not about the effectiveness of the legislation; it was about looking at how some of the more marginalised groups in our society might be affected by it. Obviously, if it was found that some groups were being impacted more than others, there might be some reason for parliament to look at the legislation. I remind members that the New South Wales legislation required a report from their ombudsman after two years of operation of the act.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 7, after line 23—Insert:

52CA—Monitoring by Police Complaints Authority

(1) For the period of two years after the commencement of this section, the Police Complaints Authority is to keep under scrutiny the exercise of the powers conferred on members of the police force under sections 52A and 52B.

(2) For that purpose, the Police Complaints Authority may require the Commissioner of Police to provide information about the exercise of those powers.

(3) The Police Complaints Authority must, as soon as practicable after the expiration of that two-year period, prepare a report on the exercise of those powers and furnish a copy of the report to the Attorney General and the Commissioner of Police.

(4) The Attorney-General must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before each house of Parliament.

This amendment is the only one that I have put forward. It is a different approach to that which I have taken with other legislation. However, it is an important amendment and I would strongly urge members to support it, especially the Hon. David Ridgway who just now referred to the extra reporting burden. That is one way of looking at my clause—that it provides an extra reporting burden—but I will tell the honourable member why we do need this extra reporting.

Members will appreciate that, in the second reading debate, a number of us referred to the New South Wales ombudsman's report and we quoted at some length from some of the case studies that came out of that report, the examples of people being unnecessarily humiliated and embarrassed by drug detection dogs in New South Wales that, according to the ombudsman, did not even do a very good job.

If one goes back to the ombudsman's report, there are a couple of sentences from the conclusion where the ombudsman states:

The use of drug detection dogs in general drug detection operations does not significantly assist police in targeting drugs suppliers. Overwhelmingly, the use of drug detection dogs led to searches where no drugs were found, or to the identification of mostly young adults in possession of very small amounts of cannabis for personal use. There is little or no evidence to support claims that drug detection dog operations deter drug use, reduce drug-related crime or increase perceptions of public safety. Further, criticisms of the cost-effectiveness of general drug detection operations appear to be well founded.

The final sentence of the ombudsman's report states:

However, we have misgivings about whether the Drug Dogs Act will ever equip police with a fair, efficacious and cost-effective law enforcement tool to target drug supply. In light of this, we have recommended that the starting point, when considering our report, is a review of whether the legislation in its present form or amended as suggested, should be retained at all.

That was the ombudsman's position—to query the entire value of the legislation. The ombudsman then went on to make some 55 recommendations. However, the overwhelming view was that the law was, arguably, irredeemable.

So, when we look at things like extra reporting burdens we are really talking about our ability as a state to discover what is wrong with the system. The government may say, 'We already have a reporting mechanism in the act. New section 52C provides that the Commissioner of Police will report to the Attorney-General, and the Attorney-General will then table that report in parliament.' That is all well and good for finding out things like the number of authorisations and the places where the authorisations were utilised, but it does not record the great social harm that the New South Wales Ombudsman identified. How do we get that information on the public record? Most likely we get it from the Police Complaints Authority, because that is the body that will collect the stories of misuse and injustice as a result of the exercise of these laws. We will get a very different flavour when a report is tabled in this place if it has been authored by the Police Complaints Authority compared with one authored by the Commissioner of Police.

Whilst I can accept that unnecessary extra reporting burdens are to be avoided (and I often agree with the Hon. David Ridgway), what we are looking at here is a very serious social experiment, one that we know has harmed the social fabric interstate, and I want to be able to identify at a very early stage whether or not we have gone down the wrong path.

My amendment seeks to provide that the Police Complaints Authority, for the period of two years after the commencement of these provisions, will keep under scrutiny the exercise of the powers conferred on members of the police under sections 52A and 52B. It is not just the simple statistics of how many authorisations were issued, what areas they went to and what they found. It is broader than that: it requires that they keep the whole exercise of these powers under scrutiny. The Police Complaints Authority may require the Commissioner of Police to provide information about the exercise of powers, so I guess it is an extra level of protection between us and unbridled police authority. The Commissioner can be required to give evidence to the Police Complaints Authority, which then prepares a report that is provided to the Attorney-General, to the Commissioner and to us in parliament.

I know that the Hon. Sandra Kanck has an amendment that inserts a different new section 52C(a), and that is effectively a sunset clause. My proposed new section 52C(a) is simply an additional monitoring clause, and I urge all members to support it.

The Hon. P. HOLLOWAY: The government opposes the amendment, which requires the Police Complaints Authority to keep under scrutiny the exercise of powers under the new scheme. The government does not believe there is a need for such an amendment, given that the bill already requires a reporting process from the Commissioner to the Attorney-General, and that report must be tabled in parliament. In addition, there is a general complaints process under the Police (Complaints and Disciplinary Proceedings) Act and, as honourable members would be aware, the government has announced that there will be an immediate review of the Police Complaints Authority and of the Police Complaints Authority legislation. If there is to be any further monitoring as envisaged by this amendment, the government would prefer to consider the form of that monitoring in the context of that review.

I would also like to make a comment on one of the remarks made by the Hon. Mark Parnell. The honourable member said that these drug detection dogs had harmed the social fabric of New South Wales. I do not accept that that is the case. To the extent that these drug detection dogs have led to the detection of drug peddlers, for example, I would think they have done a lot to improve the social fabric of New South Wales.

Another point that needs to be made is that in South Australia we do have drug diversion capacities. I understand that that is not the case in New South Wales. That is one important difference, but this bill is about general drug detection powers. We are not talking about powers to search. It is at a lower level than a lot of other general government legislation where there would be no perusal. I think looked at in that context it is an unnecessary amendment.

The Hon. D.W. RIDGWAY: This amendment was discussed at some length within the opposition's portfolio committee. That committee decided not to support this amendment; however, I remind the Hon. Mark Parnell that one of the opposition's recently announced policies was to establish an independent commission against corruption which, under the model, certainly takes some of the functions of the Police Complaints Authority in relation to corruption into that model. Therefore, following the next election, we would have a different structure of the Police Complaints Authority to deal with complaints of a customer service nature, rather than perhaps corrupt behaviour which would be dealt with by an ICAC.

I say to the Hon. Mark Parnell that the opposition will not be supporting this amendment today but, if after 20 March 2010 he has sufficient evidence that the dogs have destroyed the social fabric of our community, I give him an undertaking that I am happy to consider an amendment, as minister at that time, to allow the Police Complaints Authority in its new form to report.

The Hon. SANDRA KANCK: I have an amendment to this clause as well, at the same point, which would put a sunset clause in place. That obviously would be my preference but, if I am unable to achieve that, I would certainly be supporting the Hon. Mark Parnell's amendment.

The CHAIRMAN: The Hon. Mark Parnell's amendment has been put first.

The Hon. SANDRA KANCK: Is that how you are going to do it?

The CHAIRMAN: Yes.

The Hon. SANDRA KANCK: Given what we know about this, I find it extraordinary that the opposition is not prepared to support this legislation. I do not think anyone is talking about the destruction of the social fabric as a consequence of these dogs, but we are talking about legislation that is based on a New South Wales act where the state ombudsman has queried the very existence of the act. I support this amendment, although my preference is for a sunset clause to have the bill go out of existence and force the parliament to look at it again.

The Hon. A. BRESSINGTON: I rise to indicate that I will not be supporting the Hon. Mark Parnell's amendment, either. I remind members of this committee that New South Wales is the home of Dr Alex Wodak, who has again even more recently suggested that marijuana be sold through Australia Post outlets all around the country. Let's tax it and sell it through the post office. So as far as any decisions about drug legislation that would come out of New South Wales under the guidance and influence of Dr Alex Wodak, I would urge this committee to exercise extreme caution.

The Hon. D.G.E. HOOD: I rise to briefly indicate that Family First will not be supporting the amendment for two reasons. First, as the minister points out, I think there are adequate safeguards built into the bill as it stands. Secondly, I would like to briefly relay an experience I had recently at Adelaide Airport. The Hon. Mr Parnell has outlined his concerns for the social fabric and the impact of this bill. My experience is that, when I got off a plane recently at Adelaide Airport I was among about 100 people waiting for our bags to arrive when out came the sniffer dogs. People thought it was quite amusing and really enjoyed it, as a matter of fact.

An honourable member interjecting:

The Hon. D.G.E. HOOD: That is right. The dog in question came up to one of the people waiting for their bags, sat down beside the person and obviously there was something there that was of concern. The customs officer went over to the person concerned, who was not perturbed by the experience at all. It was all done politely and pleasantly. Whilst the parallels are not exactly the same in this situation, it does give an insight into people's experiences in these circumstances. We see no problem with this bill.

The Hon. M. PARNELL: I was not aware that Dr Wodak had been appointed as the Ombudsman in New South Wales.

The Hon. A. Bressington: I didn't say he was the Ombudsman: I said that he made comments.

The Hon. M. PARNELL: The issue of the Ombudsman's report is that he has identified the harm that this program has done to citizens of New South Wales and he has questioned the entire existence of this regime. I have not made up this stuff. I have not recounted my personal experiences in Sydney with drug detection dogs. Other people have done it and they have pointed to problems.

I have great difficulty when members have so much faith in our wisdom that we will get this right, having followed the system in New South Wales where they got it wrong and where their independent watchdog—no pun intended—or independent Ombudsman has serious questions about it.

The Hon. Dennis Hood said that it is one person, but it is a person whose job it is to take evidence, analyse the evidence and report back to the community on what they found; and they found there were problems. In the second reading debate we reported other sources that showed there were similar problems. At the end of the day we are looking at legislation that on the evidence of New South Wales does not work. Members appear reluctant to allow the Police Complaints Authority to report on what I expect will be some adverse findings.

In relation to the Hon. David Ridgway's commitment, I wish I shared his confidence in the outcome of the poll on 20 March next year and my ability to call in his undertaking. I would prefer an independent commission against corruption to be doing this work, but we do not have such a body so I have gone for the Police Complaints Authority in my amendment. I can see that I may not have swayed every member here, but this is my only amendment and I will divide on it.

The Hon. P. HOLLOWAY: At the police ministers' conference last week I used the opportunity to speak to the New South Wales police minister about this issue, given the comments of the Ombudsman. He was very strongly supportive of the New South Wales legislation and the role of the dogs. He was very supportive of it and did not believe that the issues that were raised—

The Hon. Sandra Kanck interjecting:

The Hon. P. HOLLOWAY: He was well aware of it but notwithstanding that he said that they strongly supported the legislation. His view was that most people in New South Wales also strongly support the presence of these dogs.

The committee divided on the amendment:

AYES (2)

Kanck, S.M. Parnell, M. (teller)

NOES (17)

Bressington, A. Darley, J.A. Dawkins, J.S.L.
Evans, A.L. Finnigan, B.V. Gago, G.E.
Gazzola, J.M. Holloway, P. (teller) Hood, D.G.E.
Hunter, I.K. Lawson, R.D. Lucas, R.I.
Ridgway, D.W. Schaefer, C.V. Stephens, T.J.
Wade, S.G. Wortley, R.P.


Majority of 15 for the noes.

Amendment thus negatived.

The Hon. SANDRA KANCK: I move:

Page 7, after line 23—After inserted section 52C insert:

52CA—Expiry of sections 52A, 52B and 52C.

Sections 52A, 52B and 52C will expire two years after the date on which those sections come into operation.

Having had my last amendment defeated, which was about a report from the Social Inclusion Committee, and having seen the amendment of the Hon. Mark Parnell defeated, I believe that this amendment becomes even more important. For those members who do not read the daily Murdoch, there was—

Members interjecting:

The CHAIRMAN: Members will come to order.

The Hon. SANDRA KANCK: An article appeared on two days a fortnight ago about sniffer dogs at Tokyo airport attempting to track down a suitcase that had been planted with cannabis on some unsuspecting traveller, and the dog failed to detect that very large amount of cannabis. The funny side of it was that this person took the suitcase out through the airport. The police or customs officers had no idea who owned the suitcase; they knew only that it was a black suitcase. That person now has a whole lot of cannabis with which to trade, but the dog failed. I made the point in my second reading contribution that, for one reason or another, dogs failed in three out of four cases in New South Wales.

I gave the example of a school in the United States where dogs got it wrong nine out of 10 times. I cannot believe that our minister stood up in this place and quoted a police minister in New South Wales who said that, despite a very well written, well documented report from the Ombudsman showing not only the amount of times the dogs got it wrong but also the embarrassment that people were put through, he still likes the legislation. This is not science; this is religion. This is about faith and belief, but it is not about reality. Because of what has happened in New South Wales we have in two successive amendments had the majority of members of this chamber say that we do not want those checks and balances. I am moving this amendment so that we have an ultimate check and balance, namely, a sunset clause. This will mean that some time after the election in 2010 the new parliament would have the opportunity, as it most certainly should, to exercise its mind on whether two years down the track this legislation remains appropriate for South Australia.

The Hon. P. HOLLOWAY: The government opposes the amendment. The proposed amendment would require sections 52A, 52B and 52C to expire two years after commencing operation. The government finds it more sensible to review the legislation after a two-year period rather than legislating for it to expire after that time. As such the government intends to review the legislation two years after its commencement. If on commencement of the review the government identifies possible amendments, the reform process can take place.

We dealt with this issue when we last debated this bill. To say that these dogs are failing or are not successful totally misses the point. When these passive alert dogs are used they certainly have a far higher success rate than any random search would indicate. At the end of the day drugs have to be present on a person before they can be charged with an offence. At the end of the day these passive alert dogs assist police in the detection of drugs and there are no mistakes in the sense that people are not charged unless they actually possess the drugs.

The Hon. D.W. RIDGWAY: The opposition does not support the sunset clause.

The Hon. M. PARNELL: I support the amendment. I am disappointed that the other checks and balances, which were a softer form of check and balance, have been rejected. At the end of the day the doubts surrounding this legislation are so serious that we would do well to bring this to an end after two years, and if the government can convince us they have worked it can reintroduce them. As to the government's commitment to review, that is all well and good, but the sunset clause is the appropriate way to deal with legislation that we know has serious problems associated with it.

The Hon. SANDRA KANCK: Given the undertaking about a review, why is it not in the legislation?

The Hon. P. HOLLOWAY: The government gives the undertaking that it will review it, as it should be. It does not have to be in the legislation for the government to do a review. We do them all the time, but we specifically give a commitment that this will be reviewed two years after its commencement.

The committee divided on the amendment:

AYES (2)

Kanck, S.M. (teller) Parnell, M.

NOES (16)

Darley, J.A. Dawkins, J.S.L. Evans, A.L.
Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Hood, D.G.E. Hunter, I.K.
Lawson, R.D. Lucas, R.I. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
Wortley, R.P.


Majority of 14 for the noes.

Amendment thus negatived.

The Hon. SANDRA KANCK: I move:

Page 7, after line 30 [clause 6, inserted section 52D]—

After subsection (2) insert:

(2a) Powers under this Part must be exercised with care to avoid inflicting unnecessary humiliation or embarrassment.

It is very clear from the New South Wales Ombudsman's report that many people who were apprehended wrongly and searched as a consequence of the use of these dogs were extremely embarrassed or humiliated by the experience, and this amendment acknowledges that that is what has happened. I think under those circumstances it is important for the police to not behave in a gung-ho fashion with these people, who are immediately under suspicion by virtue of the dog's sitting or standing next to them. I think many of these people are likely to get angry under those circumstances and it could be quite a tense situation. So, I think it is just a commonsense thing to say to the police that they should exercise care and do what they can to reduce the amount of embarrassment for people in this situation.

The Hon. P. HOLLOWAY: The government opposes this amendment. The government agrees that the exercise of any authority by the police should be done so as to avoid inflicting unnecessary humiliation or embarrassment. It is impossible to prevent possible embarrassment to a person if a drug dog indicates the presence of a drug. The mere indication may be sufficient to embarrass some members of the public. However, police have well entrenched practices and general orders for the searching of persons, which includes for the searching of drugs. This will be further reinforced in the Commissioner's guidelines, which are in the process of being developed, and will specifically address the issue of minimising embarrassment to persons.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting the amendment.

Amendment negatived.

The Hon. R.I. LUCAS: I want to speak briefly to this clause, because in my second reading contribution I raised some issues in relation to the interrelationship of this legislation and education institutions. I thank the Leader of the Government, who provided an answer at the second reading stage. I think I raised some further issues and he provided a more detailed response on the legal position when we were dealing with clause 1 in the committee stage.

I have had an amendment drafted but I have decided not to proceed, because I do not want to delay the passage of the legislation. Having been critical of the minister for some time for its introduction, I would hate to be in the position of delaying the eventual decision of the parliament on the legislation.

As I said, I had an amendment drafted, and my position as an individual has been (and it was when I was minister for education) that, certainly, within the government school system I believe that if a principal and a school council (as they were then; it is a governing council now) decided that they wanted to avail themselves of the use of sniffer dogs (or drug dogs as they were then) within schools—and they were being used certainly at Gawler High School and one or two western suburbs high schools—to sniff lockers and school bags, I certainly did not have a problem with that.

I know that some independent schools at that time were using the resources of the police force on occasions for random searches to try to keep their schools drug free. The current government's position is obviously different from mine when I was minister; that is, it does not support the use of sniffer dogs in schools (or, indeed, drug dogs) within schools as a policy position. The Catholic school system, I think it is fair to say from the discussions I had, took the view that it did not support the use of dogs within schools, but the independent school system indicated that a reasonable number of its schools were prepared and wanted to support the option of being able to use the deterrent effect of sniffer dogs within schools if supported by the principal and the governing council of the school.

The amendment that I had drafted was, in essence, to try to cater for the government's position but also possibly a different attitude from a future government, which may well take a policy position that schools, with the support of the principal and the school council, could use these dogs, Molly, Jay and Hooch (junior by that stage) to sniff either lockers or bags and, in the case of senior secondary students, as opposed to primary students or secondary students, in the same way as some of those 16, 17 and 18 year olds will be queuing outside hotels and nightclubs with or without legal identity of an evening in the same circumstances, having them used within school premises on occasions as well.

As I said, not wishing to delay the passage of the legislation, I have not proceeded with my amendment. I must admit, in the drafting by parliamentary counsel, competent as they are, I was not entirely confident with the legal advice the minister put on the table, which I must say basically said it was almost impossible to say what a public place was when you are looking at clause 6. In summary, it seemed to be saying that it was a case by case interpretation.

There are many schools, for example, Unley High School, where the gymnasium, grounds and other areas are used on a regular basis every night for community use. I refer to the summary of the legal advice which the independent schools had in relation to some court cases in the Northern Territory and New South Wales where this issue of whether or not a public place did or did not apply to school premises was addressed. The bottom line from the independent schools was, 'Our legal advice is that it is not entirely clear, if this legislation passes in this form, what the legal position is in relation to independent schools', but it would also apply to Catholic and government schools. It was not clear whether or not those particular provisions apply in relation to a public place.

When you look at the government's legal advice, it makes it clear that, in certain circumstances, a public place will apply in some of our educational institutions. In summary, the government's position and advice seem to be that it can only be determined on a case by case basis. That was the problem we had when I was minister for education, in that I approved the use of the dogs within schools and crown law at the time (this is now 12, 13, 14 years ago) said, 'There might be some doubt about whether or not we have the legal authority for you to be able to do this.' Through an excess of caution at that particular stage, we did not continue to provide that sort of advice to our schools.

My position in my second reading contribution was that I really thought this legislation should clarify it one way or another. I accept that we probably have differing views in this chamber, but there will be schools, principals and governing councils that will still receive the legal advice that it is not clear. The government's legal advice is that it is not clear in relation to a public place. As I said, not being an expert in the area, I sought to see whether I could have an amendment drafted which might resolve a range of issues without unduly delaying the legislation. It is my judgment that I have not been able to accomplish that, therefore I will not proceed with the amendment at this stage, but it is an issue of interest to me and I will continue to explore it with interested parties.

Clause as amended passed.

Remaining clauses (7 and 8), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (22:40): I move:

That this bill be now read a third time.

The council divided on the third reading:

AYES (17)

Bressington, A. Darley, J.A. Dawkins, J.S.L.
Evans, A.L. Finnigan, B.V. Gago, G.E.
Gazzola, J.M. Holloway, P. (teller) Hood, D.G.E.
Hunter, I.K. Lawson, R.D. Lucas, R.I.
Ridgway, D.W. Schaefer, C.V. Stephens, T.J.
Wade, S.G. Wortley, R.P.

NOES (2)

Kanck, S.M. (teller) Parnell, M.

Majority of 15 for the ayes.

Third reading thus carried.

Bill passed.

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