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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-08 Daily Xml
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CONTROLLED SUBSTANCES (DRUG DETECTION POWERS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 April 2008. Page 2282.)

The Hon. M. PARNELL (16:46): In my second reading contribution to this bill I would like to explore a number of aspects that go to two important questions: first, whether legislation of this type is necessary; and, secondly, whether legislation of this type is successful. I will talk about some of the experiences interstate in the application of these laws.

If we start at the first principle and explore the question of whether or not this legislation is necessary, we note from the minister's second reading explanation that at the heart of this legislation is the allegation that there is some ambiguity in the extent to which police can carry out their powers. Whilst there is no indication of the police actually having hit any particular brick wall in the exercise of their powers, the government's solution to this potential problem is to agree with SAPOL that it would be prudent to amend the legislation.

It is also noted in the second reading explanation that New South Wales and Queensland have both enacted legislation to authorise the use of drug detection dogs for people screening. The minister says, 'Those laws have been used as a guide in formulating the South Australian legislation.'

I think it is very important for us to note that our laws are based on the laws of New South Wales because in New South Wales they have a most important provision which is absent from our bill. In New South Wales the Police Powers (Drug Detection Dogs) Act 2001 requires the Ombudsman to review the use of drug detection dogs by police for the first two years after the commencement of the legislation. Pursuant to that statutory requirement, the Ombudsman in New South Wales has in fact reported on these laws. The report is nothing short of a fairly damning indictment of the failure of these laws in New South Wales. The New South Wales Ombudsman report, under the heading of 'Do drug detection dogs effectively target drug supply?' concludes that they do not.

The importance of effectively targeting drug supply is that that is the reason why we are told that we need this legislation. In fact, the government's second reading explanation again says that this legislation is needed to provide consistency with the South Australian Strategic Plan and the objectives that relate to improved wellbeing. It says, '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.'

So, what does the New South Wales Ombudsman say about these powers? He says this:

For the two-year review period, we were only able to identify 141 events (1.38 per cent of all indications) where a prescribed 'deemed supply' quantity of a prohibited drug was located as a result of a drug detection dog indication. Our analysis of supply charges, prosecutions and penalties revealed that 19 persons were successfully prosecuted for supply. These persons were mostly young, male, first-time offenders involved in the supply of relatively small quantities of drugs to friends and partners for a specific event (such as a dance party). That is, commercial gain or profit was not the primary motive for the drug supply. The successful prosecutions for supply represent 0.19 per cent of all drug detection dog indications for the review period.

The Ombudsman continues:

That is, more than 99 per cent of persons indicated by drug detection dogs either had no drugs, or did not possess the drugs for the purpose of supply. On this measure it is clear that drug detection dogs are not an effective tool for detecting persons involved in the supply of prohibited drugs, which is the primary objective of the Drug Dogs Act.

So, the Ombudsman, the independent statutory officer charged with reviewing all of the evidence on how this legislation works, has concluded that it fails in its primary objective, which is to reduce the supply of drugs. Under the heading 'Other measures of effectiveness' the New South Wales Ombudsman goes on to say:

We were not able to find, nor were New South Wales police able to provide, any evidence that the use of drug detection dogs disrupted low-level street dealing in a sustained manner. Similarly, we were not able to identify any evidence that the use of drug detection dogs has had a deterrent effect on drug users, or led to a reduction in drug-related crime. Nor were we able to measure any appreciable increase in perceptions of public safety as a result of high visibility policing operations utilising drug detection dogs. Further, there was no evidence that police obtained intelligence information during drug detection dog operations that led to further investigation of drug supply.

So, not only did they not catch drug suppliers through the use of these dogs but they did not actually achieve any of their objectives in terms of disrupting the supply chain for drugs on the street.

One of the aspects of this legislation that the Ombudsman investigated was not just whether it was successful in achieving its stated objectives but whether there were unintended consequences of the legislation (in particular, social consequences) that needed to be reported on. Under the heading of 'Impact of drug detection dogs' in the section that comes under the subheading 'Privacy of searches, feelings of embarrassment, civil liberty concerns and targeting', the Ombudsman said:

The inherently public nature of drug detection dog operations meant that most people were indicated and searched in public view.

I might just say here that I have used the word 'indicated' a couple of times. 'Indicated' means that, when Hooch or Pooch, or whatever the South Australian dogs names are, sits down quietly beside you, that is an 'indication': it is supposed to be an indication that you have drugs. The Ombudsman goes on to say:

This caused people to feel a range of emotions, which included embarrassment, humiliation, and/or anger. Many people who were searched without drugs being located questioned the accuracy and legitimacy of drug detection dogs to aid police in the detection of drugs.

The Ombudsman goes into some detail about those impacts. Given that drug detection dogs are notoriously unreliable, yet if the police respond to each of these indications (each time the dog sits down, they then engage in some level of search) it is almost inevitable that innocent people are going to be humiliated and embarrassed in public. The Ombudsman goes on to say:

We have recommended that operational orders provide guidance to police about appropriate locations for the conduct of searches. It is our view that, where appropriate, operational commanders ensure that private rooms or facilities are set aside for searches. However, given that it will most often be difficult to ensure the privacy of searches, police should consider whether the current approach to using drug detection dogs justifies the level of intrusion involved, especially given that only 26 of the searches during the review period led to the location of mostly small amounts of drugs and fewer than 1 person found in possession of drugs were successfully prosecuted for supplying prohibited drugs.

So, if the dogs get it wrong in 74 per cent of cases and the police are conducting public searches of people (maybe spread-eagled, arms up against the wall like we see in American crime shows, in full public view at a railway station or a bus station) and if three-quarters of the time the person is completely innocent, that is a terrible invasion of a person's dignity and a person's right to privacy.

The Ombudsman in New South Wales also had a number of things to say about the relationship between the policy of using drug detection dogs and the policy of harm minimisation, which is the underpinning of most of the drug laws in different jurisdictions in Australia. The Ombudsman said:

The police use of drug detection dogs in public places where drug users either consume drugs or access health services may actually encourage harm, albeit unintentionally. We received various reports suggesting that drug users were engaging in risky drug taking strategies in an attempt to avoid detection. Such strategies included: the consumption of larger amounts of drugs at once instead of taking smaller amounts over time; consuming drugs at home and then driving to entertainment venues; purchasing drugs from unknown sources at venues to avoid carrying drugs, and switching to potentially more harmful drugs, such as GHB [or fantasy, as it is often called] in the belief that these drugs are less likely to be detected by drug detection dogs.

We also received reports that the use of drug detection dogs in the vicinity of health services such as needle and syringe exchange programs, methadone clinics and the medically supervised injecting centre, deterred people from using these health services and may have resulted in some drug users engaging in risky drug taking practices such as needle sharing. It was also suggested that, as a result of drug detection dog operations, some drug users were less likely to return used injecting equipment, undermining strategies to encourage the safe disposal of needles and syringes.

Also of concern were reports of police confiscating prescription drugs located during drug detection operations.

That last observation fills me with some concern when I consider that the top drawer of my Parliament House office contains some Sudafed tablets, a drug I do not particularly like, but, if I am having a terribly bad allergic reaction to dust mites, as I sometimes do, it is a particular drug that people might know helps to dry you up and helps you to carry on.

The Hon. R.I. Lucas interjecting:

The Hon. M. PARNELL: As the Hon. Rob Lucas says, pseudoephedrine is not just the base drug for illegal drugs but it is also an over-the-counter drug (not even a prescription is required) that is taken by very many people who suffer from hay fever and all sorts of other conditions. I do not think I make that admission as Robinson Crusoe; there are probably members in this place who, in the top drawer of their office desk, might have Codral tablets or tablets containing pseudoephedrine.

Imagine the embarrassment if, rather than in the top drawer of my desk in Parliament House, the Sudafed tablets were in my pocket, and one of these dogs sat down next to me in a public place—perhaps at the railway station on my way home—and I found that I was being searched by this dog. I would be embarrassed and humiliated. It might seem a bit of a laughing matter—and I am robust enough that it would not unduly harm me—but I think that, for most people, it would be a traumatic and embarrassing situation. We have to ask ourselves whether the harm sought to be avoided through the strategy is worth the social embarrassment it would cause to those three-quarters of the people who are searched and who are completely innocent.

The New South Wales Ombudsman's report into the review of the Police Powers (Drug Detection Dogs) Act 2001 concludes with the following statement:

The use of drug detection dogs in general drug detection operations does not significantly assist police in targeting drug suppliers.

So, it fails at the very first hurdle. The Ombudsman goes on:

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 last sentence of the executive summary of this very lengthy report says:

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.

The fact that we have modelled our legislation on New South Wales legislation that the first review of (by the New South Wales Ombudsman) says is a failure has to set alarms bells ringing for us in South Australia.

My response to this report is to propose an amendment to the legislation; this is on file, and I urge all honourable members to support it. My amendment is basically the same clause as in the New South Wales' drug dogs act; however, because the Ombudsman in this state does not have jurisdiction over the police, the best I could do was to require monitoring by the Police Complaints Authority. Now, it is not easy to recommend giving that particular body greater powers, but my feeling is that the calls that have been made today (in relation to another issue) for the abolition or reform of the Police Complaints Authority will, if successful, ultimately result in all the tasks conducted by that body being transferred to some other body. Therefore, I still believe that it is appropriate for me to be creating a role in this legislation for the Police Complaints Authority.

My amendment requires that, for a period of two years after the commencement of the legislation, the Police Complaints Authority keep under scrutiny the exercise of the powers conferred on members of the police force under the bill. It also requires the report to go to the Commissioner and the Attorney-General to be tabled in both houses of parliament.

The other thing I want to do in this contribution is put a number of questions on the record for the minister. My first question is to ask exactly who this bill is targeting. We know that the experience in New South Wales is that it has not been successful in targeting drug dealers and suppliers but has mostly resulted in finding individuals, very small-time suppliers (meaning people who are supplying themselves and perhaps one or two others); it has not been successful in targeting commercial suppliers. So, if it is not the commercial suppliers then who is the bill targeting?

In terms of cost, I ask the minister to advise how much is proposed to be spent on the strategy. I notice that the Ombudsman, when looking at the cost effectiveness of the New South Wales' scheme, used as an example the occasion the police said was their most successful operation—the Big Day Out in January 2004. They spent $41,000 but caught only a very small number of low-level consumers. Supply prosecutions related only to friends and partners; the severest penalty received was a bond, and one person had a 16 month suspended sentence. That was the return from $41,000 of public investment at the Big Day Out. A total of 414 people were indicated by those dogs yet only 86 were detected with small quantities of drugs—so, about 80 per cent of innocent people who were searched in public, who were embarrassed and humiliated, had done absolutely nothing wrong. So, how much will we spend on the strategy in South Australia?

I would also like to ask the minister to tell us how the strategy of using drug dogs fits within the accepted harm minimisation model for the regulation of illicit drugs in South Australia.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (17:07): I thank honourable members for their contributions to this bill. I acknowledge that the Hon. Sandra Kanck has not spoken yet, but she has agreed to make her comments on clause 1 when we deal with the committee stage on Thursday, and I thank her for enabling me to at least put the bill into committee. So, any matters that I have not addressed in my response I will deal with during the committee stage of the bill.

The bill was developed to support police in their fight against drugs and, in particular, their prevalence at public venues and the transport of commercial quantities between states. It is commonly known that the sale and use of drugs occurs in some licensed premises, including hotels, nightclubs and bars. The parliament itself acknowledged this when passing drink spiking legislation and, in particular, offences for the possession of certain prescription and controlled drugs in licensed premises between the hours of 9pm and 5am.

The Hon. Mr Ridgway is correct in his assertion that the legislation applies to all licensed premises, excluding restaurants. It would, however, be foolish to think that drug activity is confined to licensed premises. That is why there are provisions in the bill for police to conduct general drug detection in other places, which would include such places as Rundle Mall. It should be acknowledged, however, that people who visit these types of public places are generally law abiding and are going about their daily activities. That is why the government has taken the position that, for general drug detection to be performed in a public place, a senior police officer (that being an officer of or above the rank of inspector) must first authorise the use of these powers. I will further discuss this issue later.

The Hon. Mr Ridgway has sought clarification as to whether police will be able to walk the drug detection dogs around vehicles parked on the street outside licensed premises or in the side streets nearby, as is permitted in car parks for the use of patrons of licensed premises. The bill provides for general drug detection in car parks of licensed premises, as police advise that such car parks are often used for drug dealing.

The provision does not extend to cars parked on the street or in public car parks. There is limited parking on streets. People will park their vehicles where they can find a free car park, and this is often some distance from their intended destination. In the city, in particular, it would be unreasonable to assume that a vehicle parked on a street outside licensed premises is associated with a person inside the premises. However, I can say that, if the street or the side street was the subject of an authorisation issued by a senior police officer pursuant to new section 52A(3), then a vehicle parked there could be the subject of the drug detection powers.

New section 52A provides police with the power to conduct general drug detection in certain places. They will be able to conduct general drug detection on any person who is in or apparently attempting to enter or leave a licensed premises, public venue or public passenger carrier (or any place where the carrier takes up or sets down passengers), using only the authority provided by the section. Public venues include such places as the football, the Fringe or other public events.

However, for any other public place an authorisation must be sought from a senior police officer before the powers could be used. Any authorisation must be granted in accordance with any guidelines issued by the Commissioner in relation to such authorisations. The government took the view that, because of the nature of the authorisations and the likely operational nature of any conditions applying to them, it was more appropriate to use the Commissioner's guidelines than regulations.

I have consulted with police, who are in the process of developing the Commissioner's guidelines. Although they are not finalised, I can advise that police wishing to use these powers in a public place will have to provide the senior police officer with the grounds on which they are making the application. In deciding whether to issue the authorisation, the senior police officer will be required to have consideration for such areas as the grounds provided, the impact on the community, the likely benefits to the community and the general deterrent effect.

The authorisation issued by a senior police officer in itself does not provide any greater power to the police than those stated in the legislation, but it does ensure a level of accountability, in that the senior police officer will be able to restrict the area in which the powers can be used and specify any conditions under which police must function when conducting drug detection operations. Further levels of accountability will be in place within SAPOL, as the Commissioner will want information about authorisations before he produces a certificate to the court certifying a particular area was subject to an authorisation properly granted. There is also the requirement to report to the Attorney-General each year on the number of authorisations issued and the places in relation to which the authorisations were granted.

As the Hon. Mr Ridgway has pointed out, the bill contains special powers for police to conduct operations on identified drug transit routes. He is correct in his assertion that drug detection dogs can enter any part of a vehicle that is not normally used for passenger transport. This would include such areas as the boot of a car, the luggage area of a passenger bus, the load on a truck or a trailer. It does not permit police to remove or cause the removal of any items from those areas to assist in the drug detection processes. While the dogs are not permitted inside areas designed for the carrying of passengers when the vehicle is moving, the legislation does permit police to give a direction to any person in the vehicle to open the vehicle. The mere fact that the vehicle is open will permit the escape of drug odour, which will significantly increase the likelihood of detection by the drug dog.

Further to this, the bill permits the use of electronic drug detection systems. Police currently utilise equipment provided by the Australian Customs Service. Drug detention wands, as described by the Hon. Mr Ridgway, are not currently in use. This is not to say that, with technological advances, they will not be available in the future. However, the systems currently used involve the use of a swab, which is placed in an electronic device for analysis. The use of such systems will be subject to regulations. I would expect that the regulations will permit the swabbing of such areas as the external and internal door handles and the steering wheels, again, increasing the likelihood of detection.

I have sought advice from police on the placing of drug detection dogs in passenger areas. They are confident that the proposed legislation provides ample opportunity to detect drugs within these areas without unduly inconveniencing the public.

The Hon. Mr Ridgway has requested that I consider amending the bill to ensure the report made by the Commissioner of Police to the Attorney-General be tabled in both houses of parliament. The new section 52C requires the Commissioner to report to the Attorney-General the number of authorisations granted under sections 52A and 52B, the public places or areas in relation to which those authorisations were granted, the periods during which the authorisations applied and the number of occasions the drug detection dogs or electronic drug detection systems indicated the presence of controlled drugs, controlled precursors or controlled plants. The Attorney-General must, within 12 sitting days of receipt of the report, cause copies of the report to be laid before each house of parliament. I therefore see no need for an amendment on this matter.

The Hon. Mr Lucas criticised the delay in bringing this bill before parliament. He stated that Molly, Jay and Hooch were sitting out there not able to do what they were trained to do. I can assure the parliament that this is not the case. While the government has been working with police on the legislation, the dogs have not been sitting around idle.

The passive alert drug detection dogs are trained to detect drugs. This is no different from other police dogs that are trained to detect drugs, except that passive alert dogs respond passively when they detect the odour of a drug. This allows police to use them in a variety of circumstances. Molly, Jay and Hooch are regularly used to assist police to search buildings when executing drug warrants. A handler and her dog recently attached to the Crime Gangs Task Force for over five months have worked with detectives in planned operations.

The dog handlers also work in close partnership with the Australian Federal Police to screen baggage at Adelaide Airport, as well as bus companies at the central bus station, railway and trucking companies and PIRSA for the screening of trucks at trucks stop operations on main arterial roads. I am informed by police that the three passive alert drug detection dogs have conducted in excess of 2,200 drug searches since September 2006.

The bill provides for the use of general drug detection powers in public venues. The Hon. Mr Lucas is correct in saying that dogs could be used at events such as WOMADelaide, the Big Day Out and the football, as they are all public venues. An event involving the State Theatre Company is also likely to constitute a public venue; whether general drug detection operations are carried out at such events is an operational issue for police and will be based on where they assess is the best place to deploy their resources.

The Hon. Mr Lucas asked whether the legislation could be used in schools or educational environments. New section 52A permits police, upon the authorisation of a senior police officer, to use general drug detection powers in public places. I believe that whether a school or educational institution is a public place will depend on the circumstances. The definition refers, in part, to 'a place to which free access is permitted to the public, with the express or tacit consent of the owner or occupier of that place'.

The grounds of many tertiary educational institutions may be thought to be public places, as members of the public are allowed free access, with no attempt being made to ascertain who is on the grounds and why they are there. The grounds may be regularly used as a thoroughfare or for recreational purposes. The position of schools will also depend on the circumstances.

In the District Court case of Copping v South Australia (1997), the judge said that, for the purposes of section 7 of the Summary Offences Act, he doubted whether school grounds were a public place within the meaning of that term in the section. The incident occurred on school grounds during recess time. So, the students were out in the yard, and this would be a time when most schools would monitor access to the grounds by non students.

However, many schools allow access to school grounds after school hours and at weekends, except at night. So, you see children, families and dog walkers on school grounds with no intervention from the staff. In such cases, it may be that the grounds would be categorised as a public place. As a general rule, the buildings are less likely to be a public place. Generally, a school would not allow open access to classrooms, offices, canteens, etc. However, some school buildings may be open to the public for a particular purpose or use as a place to which the public are admitted on the payment of money. One example might be where the public are permitted to use an indoor swimming pool on school grounds for the payment of a fee.

So, in some situations it may be that it would be possible for an authorisation to be granted to conduct general drug detection in a school or other educational institution. However, I can reassure the parliament that, if deployment of drug detection dogs in such places were required under an authorisation or otherwise, police would work closely with educational authorities in effectively managing their use.

The Hon. Mr Lucas asked for confirmation on how the legislation deals with a situation when a dog detects the smell of a drug on a person but the drug is no longer on the person. The legislation and the dogs cannot differentiate on this ground. To clarify the issue of the inability of the drug dogs to determine whether a drug is present at the time or in the past, and to avoid any doubt, the government has taken the position that, where a drug detection dog or electronic drug detection system indicate the presence of a controlled drug, controlled plant or controlled precursor, it constitutes reasonable grounds to suspect the presence of a controlled drug, controlled plant or controlled precursor.

In response to the Hon. Rob Lucas's question on when I was first advised that changes to legislation were required, I have responded a number of times to the honourable member in relation to this issue; however, I am happy to go through it again. These dogs were purchased and trained with the intention of deploying them in accordance with SAPOL's existing practices and policies at that time. Contrary to the misinformation the Hon. Rob Lucas was spreading, the dogs were immediately utilised, assisting with drug searches under the authority of drug warrants and general search warrants.

During estimates hearings in October 2006, I advised that the government was aware that legislation was required for the new passive alert detection dogs to achieve their full operational potential. During the same estimates hearing, the former deputy commissioner (John White) said:

The introduction of the passive drug dogs is supplementing what we already have in relation to our general dog operations. They are additional dogs and involve the pairing up of a handler, with other standard dogs, with a passive dog. They are used for a whole range of other activities. The issue has come up in relation to the legality of reasonable cause for suspicion when a dog stops, the court having challenged whether that is sufficient reason for us to search a person. It is that aspect concerning which we are seeking to have some legislative system brought in to enable the police officer to conduct a search.

But there is certainly an ongoing training program, and the dogs have been used for a range of various activities. The passive sniffing in public places is one of those activities in which we would like to see the dogs involved. We are in the process of preparing a submission to cover that anomaly, as we see it at the moment.

On 7 February 2007, I received a submission from SAPOL recommending a number of changes to the Controlled Substances Act to allow PADD dogs to be deployed for people-screening operations. Shortly after receiving the submission, I wrote to the Attorney-General seeking that the matter be progressed as a priority, and 7 February 2007 was the first time my office received any correspondence seeking amendments to the legislation to allow these dogs to achieve their full operational potential.

SAPOL has also confirmed that its records indicate that the first correspondence in relation to amending legislation was on 7 February 2007. It has taken just over 12 months, from the time of receiving the submission from SAPOL, to get to this stage; however, one must understand that there have been other priorities in relation to law and order—DNA, bikies, anti social behaviour, serious drug offences and paedophile restraining orders.

If there are any other issues that I have not covered, I will be happy to deal with them when we resume in the committee stage. Again, I thank all members for their contributions and the Hon. Sandra Kanck's indulgence to allow this bill to at least get to the committee stage; we will hear her views during the debate on clause 1.

Bill read a second time.

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