2020
2020
2023-05-30
act
government
publicgeneral
act.reprint
allinforce
2020-10-22
2020-11-18
1
act-2020-039
5d3b55f5-f4ef-4ee8-a253-e8c0742b1ce1
c9c00f41-ceda-4195-8602-0a11001b066c
2020
none
Note—
Amending provisions are subject to automatic
repeal pursuant to sec 30C of the Interpretation Act
1987 No 15 once the amendments have taken
effect.
Proposed repeal—
This Act is to be repealed by sec 18 of this Act
on the day that is 3 years after the day on which sec 9
commences.
An Act to establish a pilot scheme for drug
supply prohibition orders.
1Name of Act
This Act is the Drug Supply
Prohibition Order Pilot Scheme Act
2020.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
(1)
In this Act—
authorised
magistrate—see section 16.
drug supply prohibition
order means an order made under section 9.
eligible
person—see section 5.
function includes a power,
authority or duty, and exercise a function includes
perform a duty.
oversight
commissioner means the oversight commissioner appointed
under section 15.
pilot scheme area means
the following as at 1 July 2020—
(a)
Bankstown Police Area
Command,
(b)
Coffs-Clarence Police
District,
(c)
Hunter Valley Police
District,
(d)
Orana Mid-Western Police
District.
pilot scheme period
means the period of 2 years after the commencement of this Act.
prohibited drug has the
same meaning as in the Drug Misuse and Trafficking Act
1985 and includes a prohibited plant within the meaning of
that Act.
Secretary means the Secretary
of the Department of Communities and Justice.
serious drug
offence—see section 5.
subject, of an order, means the
person against whom a drug supply prohibition order is made.
vehicle includes a vessel or an
aircraft.
Note—
The Interpretation Act
1987 contains definitions and other provisions that affect
the interpretation and application of this Act.
(2)
Notes included in this Act do not form part of
this Act.
4Effect of drug supply prohibition order
(1)
If a drug supply prohibition order is in force
against a person, a police officer may, without a warrant, do one or more of
the following—
(a)
stop, detain and search the person, and no other
person,
(b)
enter and search the following premises (searchable
premises)—
(i)
a dwelling at which the person
resides,
(ii)
premises that the police officer reasonably
suspects are owned by the person or under the direct control or management of
the person,
(iii)
premises that the police officer reasonably
suspects are being used by the person for an unlawful purpose involving the
manufacture or supply of a prohibited drug,
(c)
stop, detain and search a vehicle—
(i)
being driven by or otherwise under the control or
management of the person or occupied by the person, or
(ii)
parked on an area that is part of, or provided
for the use of, searchable premises, but not if the area is shared with
another dwelling or premises, or
(iii)
parked on an area that is part of, or provided
for the use of, searchable premises and that is shared with another dwelling
or premises, but only if the police officer reasonably suspects that the
vehicle is being used by the person in relation to the manufacture or supply
of a prohibited drug.
(2)
The police officer may, in the exercise of powers
under subsection (1), seize and detain all or part of a thing that the police
officer suspects on reasonable grounds—
(a)
may provide evidence of the commission of a
drug-related offence, or
(b)
is stolen or otherwise unlawfully obtained,
or
(c)
may provide evidence of the commission of a
relevant offence within the meaning of Part 4, Division 1 of the Law Enforcement (Powers and Responsibilities) Act
2002 or an offence involving a prohibited drug,
or
(d)
is a dangerous article within the meaning of the
Law Enforcement (Powers and Responsibilities) Act
2002.
(3)
The police officer may exercise a power under
subsection (1) or (2) only if—
(a)
the power is exercised in a pilot scheme area or
an area that the police officer reasonably believes to be in a pilot scheme
area, and
(b)
the exercise of the power, other than a power
exercised under subsection (2), is reasonably required to decide whether the
person is involved in the commission of an offence involving a prohibited
drug.
(4)
The Commissioner of Police must ensure that the
subject of a drug supply prohibition order is given written notice about a
search as soon as practicable after the search if—
(a)
a police officer searches premises or a vehicle
under the order, and
(b)
the subject of the order is not present during
that search.
(5)
The notice under subsection (4) must specify the
date on which the search took place and the address or other description of
the premises or vehicle searched.
(6)
The Law Enforcement (Powers and
Responsibilities) Act 2002 applies to a search carried out
under this Act.
Note—
See section 32 and Part 15 of that Act for
additional limitations on the exercise of the powers under this
section.
(7)
Despite subsection (6), a strip search of a
person must not be carried out when exercising a power under this section
unless it is authorised under Part 4, Division 4 of the Law Enforcement (Powers and Responsibilities) Act
2002.
5Persons who may be subject to drug supply prohibition
order
(1)
A drug supply prohibition order may be made
against an eligible person, being a
person who—
(a)
has been convicted of a serious drug offence
within 10 years before the application day, and
(b)
is at least 18 years of age on the application
day.
(2)
In this section—
application day means
the day on which the application for the drug supply prohibition order was
made.
serious drug
offence means—
(a)
an offence against section 11B, 23(2)(a) or (b),
24(2) or (2A), 24A(1), 24B(1), 25A(1) or 36Z(2)(b) of the Drug Misuse and Trafficking Act 1985,
or
(b)
a second or subsequent offence against section
36Z(1) of the Drug Misuse and Trafficking Act
1985, or
(c)
an offence against section 23(1)(a) or (b) or
(1A), 24(1) or (1A) or 25(1), (1A), (2), (2A) or (2C) of the Drug Misuse and Trafficking Act 1985,
but not if the offence relates only to less than an indictable quantity within
the meaning of that Act, or
(d)
an offence against section 26 or 28 of the
Drug Misuse and Trafficking Act 1985
that relates to an offence referred to in paragraphs (a)–(c),
or
(e)
an offence committed in another jurisdiction that
would constitute an offence referred to in paragraphs (a)–(d) if it were
committed in New South Wales.
6Application for drug supply prohibition
order
(1)
A police officer, or another person on the police
officer’s behalf, may apply to an authorised magistrate for a drug
supply prohibition order to be made against an eligible
person.
(2)
The application may be made if the police officer
reasonably believes the eligible person is likely to engage in the manufacture
or supply of a prohibited drug.
(3)
The application must not be made
within—
(a)
2 weeks after an authorised magistrate has
refused to grant a previous application against the eligible person, unless it
contains material evidence or information not included in the previous
application, or
(b)
6 months after the revocation of a previous drug
supply prohibition order against the eligible
person.
7Form and content of application
(1)
An application for a drug supply prohibition
order must—
(a)
if a form is prescribed by the regulations for
the application, be in the prescribed form, and
(b)
be made in writing, and
(c)
specify the period for which the drug supply
prohibition order is sought.
(2)
The application must also set out the
following—
(a)
the identity of the eligible
person,
(b)
each pilot scheme area in which the order is
likely to be used,
(c)
details of each serious drug offence committed by
the eligible person within the previous 10 years that forms the basis for
seeking the order,
(d)
any practicable alternative means that may be
reasonably available to prevent, or obtain evidence of, the eligible person
engaging in the manufacture or supply of a prohibited
drug,
(e)
details of attempts made to use the alternative
means,
(f)
details of other drug supply prohibition orders
against the eligible person that are currently or have previously been in
force,
(g)
if a previous drug supply prohibition order
against the eligible person has been revoked, the changed circumstances that
justify the making of a new order,
(h)
details of unsuccessful applications for drug
supply prohibition orders against the eligible
person.
(3)
The application must be accompanied by a document
signed by a police officer of the rank of Superintendent or higher authorising
the applicant to seek the drug supply prohibition order against the eligible
person.
(4)
The application must be accompanied by an
affidavit that supports the application and sets out—
(a)
the grounds on which the drug supply prohibition
order is sought, and
(b)
evidence that the person is likely to engage in
the manufacture or supply of a prohibited drug.
(5)
The affidavit must, as far as reasonably
practicable, identify persons who may be incidentally affected by the
order.
(6)
The affidavit must also include—
(a)
information known to the applicant that may be
adverse to the application for the order, or
Example—
Steps that the eligible person has taken to stop
or reduce the risk of the person committing drug-related
offences.
(b)
if no adverse information is known, a statement
to that effect.
8Notice of application to oversight
commissioner
(1)
The Commissioner of Police is to ensure that the
oversight commissioner is given a notice containing the information set out
in—
(a)
an application for a drug supply prohibition
order, and
(b)
the document and affidavit that accompany the
application.
(2)
The notice must be given as far in advance of the
application being made as is reasonably practicable.
(3)
After deciding the application, the authorised
magistrate must ensure that the application and accompanying document and
affidavit are forwarded to the oversight commissioner.
(4)
The oversight commissioner must keep the
application and accompanying document and affidavit in a way that ensures that
they are not accessible to anyone who is not authorised to have access to
them.
9Drug supply prohibition order may be made by authorised
magistrate
(1)
An authorised magistrate may, on the application
of a police officer, make a drug supply prohibition order against a person if
the magistrate is satisfied that the person—
(a)
is an eligible person, and
(b)
is likely to engage in the manufacture or supply
of a prohibited drug.
(2)
The authorised magistrate—
(a)
is not to make a drug supply prohibition order
unless satisfied that the oversight commissioner has been given a reasonable
opportunity to make a submission in relation to the making of the order,
and
(b)
may request advice from the oversight
commissioner on any matter relating to the application or the making of the
order.
(3)
The person who is to be the subject of the drug
supply prohibition order—
(a)
is not entitled to be told about the application,
and
(b)
is not permitted to make a
submission.
(4)
The application is not required to be decided in
a courtroom.
(5)
The authorised magistrate may question, or ask
for additional information about an application from a police officer with
knowledge of the application or the oversight commissioner—
(a)
at any time, and
(b)
in any way that the authorised magistrate
considers appropriate, including by audio link or audio visual
link.
(6)
A drug supply prohibition order must not be made
against a person when sentencing the person for an offence and must instead be
the subject of a separate application made in accordance with this
Act.
(7)
If an authorised magistrate decides to make a
drug supply prohibition order, the magistrate must make a record of the
reasons for making the order and the evidence used to support the decision to
make the order.
(8)
Except as otherwise provided for in this Act, a
person, including the subject of the order—
(a)
is not entitled to know the reasons for the
decision to make the order, and
(b)
is not to be given access to, or provided with, a
document (or a copy of a document) that formed part of the
application.
(9)
In this section—
audio link means technology
that enables continuous and contemporaneous audio communication between
persons at different places, including telephones.
audio visual link means
technology that enables continuous and contemporaneous audio and visual
communication between persons at different places, including video
conferencing.
10Matters to be taken into account by authorised
magistrate
(1)
The authorised magistrate may, in deciding
whether a person is likely to engage in the manufacture or supply of a
prohibited drug, take any matter into account that the authorised magistrate
considers relevant, including the following—
(a)
information that may be adverse to the
application for the order, including steps that the eligible person has taken
to stop or reduce the risk of the person committing drug-related
offences,
(b)
whether the person associates with other persons,
other than in relation to a lawful drug treatment or rehabilitation program,
who are involved in the manufacture or supply of a prohibited
drug,
(c)
whether the person is a member of, or associates
with, a criminal group within the meaning of section 93S of the Crimes Act 1900,
(d)
whether the person has cash or assets that are
significantly out of proportion to the person’s
income,
(e)
relevant criminal
intelligence,
(f)
whether the person has been convicted
of—
(i)
an offence against section 11, 11A, 11C, 18A,
18B, 19, 20, 36X(1), 36Y(1) or (2), 36Z(2)(a), 36ZF(1) or (2) or 36ZG of the
Drug Misuse and Trafficking Act 1985,
or
(ii)
a second or subsequent offence against section
36Z(1) of the Drug Misuse and Trafficking Act
1985.
(2)
In deciding whether to make a drug supply
prohibition order, an authorised magistrate may take into account whether
there are other practicable alternative means that may be reasonably available
that could be used to reduce the risk that the person will engage in the
manufacture or supply of a prohibited drug.
11Form of drug supply prohibition order
(1)
A drug supply prohibition order
must—
(a)
if a form is prescribed by the regulations for
the order, be in the prescribed form, and
(b)
be signed by the authorised magistrate who made
the order.
(2)
A drug supply prohibition order must include the
following information—
(a)
the name of the authorised
magistrate,
(b)
the name of the subject of the
order,
(c)
the date on which the order was
made,
(d)
that the order has been made under this Act
because the subject of the order has been found to be likely to engage in the
manufacture or supply of a prohibited drug,
(e)
the period for which the order is due to remain
in force,
(f)
the effect of the order,
(g)
the way in which the subject of the order may
seek to have the order revoked.
12Commencement and duration of drug supply prohibition
order
(1)
A drug supply prohibition order commences when it
is made.
(2)
No power may be exercised under a drug supply
prohibition order before a copy of the order has been served personally on the
subject of the order.
(3)
A drug supply prohibition order remains in force
for whichever of the following is the lesser—
(a)
until the end of the period specified by the
authorised magistrate as the period for the order, being a period of not less
than 6 months,
(b)
until the end of the pilot scheme
period,
(c)
until the order is
revoked.
(4)
The Commissioner of Police must ensure that a
record is kept of the date on which a drug supply prohibition order is served
on the subject of the order.
13Revocation of drug supply prohibition
order
(1)
The subject of a drug supply prohibition order
may apply to the Local Court to have the order revoked.
(2)
The Commissioner of Police is the respondent to
the application.
(3)
The Local Court may require the applicant to
provide it with a copy of the drug supply prohibition
order.
(4)
The Local Court may affirm the drug supply
prohibition order, vary the term of the order or revoke the
order.
(5)
The Local Court may revoke the drug supply
prohibition order only if satisfied that—
(a)
the order is unreasonably onerous in the
circumstances, or
(b)
the subject of the order is not likely to engage
in the manufacture or supply of a prohibited drug, or
(c)
the risk of the subject of the order engaging in
the manufacture or supply of a prohibited drug could be mitigated in another
way.
(6)
The following are not to be provided to the Local
Court—
(a)
a document that formed part of the application
for the drug supply prohibition order,
(b)
the reasons recorded by the authorised magistrate
for making the order.
(7)
Subsection (6) does not prevent the Commissioner
of Police from providing information to the Local Court if the Commissioner
considers it to be relevant to the application.
(8)
An application for the revocation of a drug
supply prohibition order must not be made by the subject of the order within 6
months after—
(a)
a copy of the order has been served personally on
the subject of the order, or
(b)
an application for the revocation of the order is
refused by the Local Court.
(9)
An application for the revocation of a drug
supply prohibition order may be made by the Commissioner of Police or the
oversight commissioner at any time.
(10)
The Local Court may revoke a drug supply
prohibition order on application by the Commissioner of Police or the
oversight commissioner.
14Reports to authorised magistrate and oversight
commissioner
(1)
The Commissioner of Police is to ensure that a
report is provided to the authorised magistrate who issued a drug supply
prohibition order and the oversight commissioner that sets out the
following—
(a)
the number of searches carried out under the
order,
(b)
details of each search, including the
following—
(i)
the date on which the search took
place,
(ii)
the location of the search,
(iii)
the person, vehicle or premises
searched,
(iv)
the type and duration of the
search,
(v)
the number of persons (excluding police officers)
who were present at the search or were adversely affected by the
search,
(c)
details of evidence uncovered by the searches and
the use made or to be made of the evidence,
(d)
details of anything seized,
(e)
whether an application was made to revoke the
order and the results of the application.
(2)
The report must be provided as soon as
practicable after the order ceases to be in force because it has expired or
been revoked.
15Oversight commissioner
(1)
The Secretary, in consultation with the Attorney
General, must appoint an oversight commissioner.
(2)
The oversight commissioner is to be employed in
the Public Service on a full-time or part-time basis.
(3)
A person cannot be employed as the oversight
commissioner unless the person is—
(a)
an Australian legal practitioner with at least 7
years’ legal practice experience, and
(b)
either—
(i)
a Judge or other judicial officer, or a former
Judge or other judicial officer, of a superior court of record of the State or
of another State or Territory or of Australia, or
(ii)
qualified to be appointed as a Judge or other
judicial officer of a court referred to in subparagraph
(i).
(4)
The oversight commissioner has the functions
conferred or imposed on the commissioner by or under this Act or any other
Act.
(5)
The Secretary may appoint additional oversight
commissioners under this section on a temporary basis to cover an absence of
the oversight commissioner or in other circumstances as the Secretary sees
fit.
16Authorised magistrate
(1)
In this Act—
authorised
magistrate means a magistrate in relation to whom a consent
under subsection (2) and a declaration under subsection (3) are in
force.
(2)
A magistrate may, by instrument in writing,
consent to be declared by the Attorney General under this
section.
(3)
The Attorney General may, by instrument in
writing, declare magistrates in relation to whom consents are in force under
this section to be authorised magistrates for the purposes of this
Act.
(4)
An authorised magistrate has, in relation to the
exercise of a function conferred on an authorised magistrate by this Act, the
same protection and immunity as a magistrate has in relation to proceedings in
the Local Court.
(5)
A magistrate who has given consent under this
section may, by instrument in writing, revoke the
consent.
(6)
A declaration of an authorised magistrate under
this section may not be revoked by the Attorney General.
(7)
However, the declaration of a magistrate as an
authorised magistrate is revoked if—
(a)
the authorised magistrate ceases to be a
magistrate, or
(b)
the magistrate revokes the magistrate’s
consent to be an authorised magistrate, or
(c)
the Chief Magistrate notifies the Attorney
General that the magistrate should not continue to be an authorised
magistrate.
(8)
To avoid doubt—
(a)
the selection of an authorised magistrate to
exercise a particular function conferred on authorised magistrates is not to
be made by the Attorney General or another Minister, and
(b)
the exercise of that particular function is not
subject to the control and direction of the Attorney General or another
Minister.
17Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, about matters—
(a)
this Act requires or permits to be prescribed,
or
(b)
necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2)
Without limiting subsection (1), the regulations
may prescribe the following—
(a)
requirements for applications made under this
Act,
(b)
forms for the purposes of this
Act.
18Repeal of Act
This Act is repealed on the day that is 3 years
after the day on which section 9 commences.
Schedule 1Savings,
transitional and other provisions
Part 1Regulations
1Savings or transitional
regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the commencement of—
(a)
a provision of this Act, or
(b)
a provision amending this
Act.
(2)
A savings or transitional provision consequent on
the commencement of a provision must not be made more than 2 years after the
commencement.
(3)
A savings or transitional provision made
consequent on the commencement of a provision is repealed 2 years after the
commencement.
(4)
A savings or transitional provision made
consequent on the commencement of a provision may take effect before the
commencement but not before—
(a)
for a provision of this Act, the date of assent
to this Act, or
(b)
for a provision amending this Act, the date of
assent to the amending Act.
(5)
A savings or transitional provision taking effect
before its publication on the NSW legislation website does not, before its
publication—
(a)
affect the rights of a person in a way
prejudicial to the person, or
(b)
impose liabilities on a person for anything done
or omitted to be done.
(6)
In this clause—
person does not include
the State or an authority of the State.
Schedule 2Amendment of
Surveillance Devices Act 2007 No
64
Section 8 Installation, use and maintenance of optical
surveillance devices without consent
Insert after section 8(2)(d1)(i)—
(ia)
the Drug Supply Prohibition
Order Pilot Scheme Act
2020,
Historical notes
Table of amending instruments
Drug Supply Prohibition
Order Pilot Scheme Act 2020 No 39. Assented to 25.11.2020.
Date of commencement, 16.5.2022, sec 2 and 2022 (87) LW
18.3.2022.