Police Powers (Drug Detection Dogs) Bill
Debate resumed from 12 December.
The Hon. JOHN JOBLING [8.09 p.m.]: The Coalition supports the Police Powers (Drug Detection Dogs) Bill. The Minister for Police makes allegations about policy zones. It is ironic that the Minister has introduced as an urgent bill legislation that was proposed by the Coalition in the other House to enforce the right of police officers to use sniffer dogs. Trained dogs are used in police forces throughout the world—it is not peculiar to Australia or New South Wales—for a variety of purposes, including search and rescue. They are also used to retrieve human remains following unfortunate incidents such as honourable members have witnessed in reports of events throughout the world. Dogs are used to detect explosives and drugs and to track escapees from police or correctional custody.
The use of trained dogs to detect drugs is undertaken not only in New South Wales but also in many countries throughout the world. Dogs are used in airports, railway stations and public places, and are extremely effective and efficient. Sniffer dogs have a highly developed sense of smell, are highly skilled and have been trained to detect drugs. They are far more successful than anything mechanical. Concern has arisen as a result of a recent Local Court ruling that the use of sniffer dogs for the purpose of conducting drug detection searches is illegal. For the use of the dogs to be lawful, police must first have a reasonable suspicion that a person is carrying drugs. Quite frankly, most reasonable people in reasonable circumstances would say that that is commonsense. The dogs are highly skilled and highly trained, and their purpose is simply to detect whether a person is carrying drugs.
The Hon. Michael Costa: And they are cute.
The Hon. JOHN JOBLING: They are much more handsome than the Minister for Police. They are also more efficient and more skilled.
The Hon. Michael Costa: They are attractive.
The Hon. JOHN JOBLING: I agree that they are attractive, and I am not making a comparison with the Minister in any sense. In a reasonably enlightened age there is an awareness of drug trafficking in this State. It is therefore particularly important to give New South Wales police officers adequate powers to carry out their job—a difficult job, to say the least—by identifying people who are involved in the illicit drug trade, especially those who supply prohibited drugs. I cannot think of anybody who would object to the use of dogs to detect persons who are involved in the use and supply of prohibited drugs.
The purpose of the bill is to ensure that when dog handlers make an arrest, the arrest will stand up in court, all things being equal. I suspect that most honourable members would have been stunned by a ruling that was handed down in the Local Court on 31 October. That ruling cast doubt on whether the procedure will be accepted. Following that decision the Coalition recognised the need to provide certainty, and on 27 November gave notice of a private member's bill to allow members of the New South Wales Police Service to use a dog to detect illegal drugs when they have a reasonable suspicion that a person is in possession of drugs. On the basis of a reasonable suspicion, a search would be permissible.
I was amazed at the Local Court ruling, but I accept that strange rulings are handed down from time to time. However, it cannot be allowed to stand. The use of dogs to detect drugs must be validated. The abilities and skills of dogs are tools that police officers require to carry out the day-to-day detection and arrest of those who are involved in the illegal drug trade. Following notice being given of the private member's bill as a matter of urgency, the Minister for Police introduced this legislation in this House on 6 December—at least a week after the Coalition announced its intention to introduce a similar bill. The delicious irony of the reaction of the Minister for Police is that he recognised that the Opposition was right and its desire to ensure that sniffer dogs may be used was also right. He happily borrowed the Opposition's policy straight off the rack. That is fair enough, because something had to be done.
The Hon. Doug Moppett: They didn't have any policies of their own.
The Hon. JOHN JOBLING: In this case, they did not. In this case the Minister for Police did not think to take action until he saw what the Opposition had done. In the usual manner, he stole the Opposition's idea. The bill defines "general drug detection" as the detection of prohibited drugs or plants in the possession or control of a person other than during a search that has been carried out after a police officer has formed a reasonable suspicion that the person is committing a drug offence. The bill also sets out where the drug detection power may be exercised and prescribes the manner in which it may be exercised. Despite what some honourable members of this House have said, there is no doubt that the legislation is very tightly controlled.
The concept of general drug detection, which the Minister referred to in his second reading speech, was put on the record by the Leader of the Opposition in the other place a week before the Minister thought of it. I must compliment the Minister on at least having the sense to recognise that the Opposition's policy is right, and that recognition has culminated in the legislation before the House tonight. The general drug detection power will operate in places such as licensed premises, including nightclubs and dance parties, public transport hubs such as railway stations, and other places. When police officers seek a warrant to conduct searches, they must satisfy a court that they have reasonable grounds for suspecting that drug offences are being committed in a public place. They must also outline whether the search will be undertaken by plain-clothes or uniformed police officers.
Under current precedents, it would appear that if a drug detection dog comes into contact with a person during a search, the contact may be considered a trespass. If contact is the ground for making a search unlawful, that is taking matters to a stupid level. It is totally and utterly nonsensical. After all, we are talking about animals, not human beings. The dogs will vary in size from that of a beagle to that of a German shepherd. It would not be possible to always ensure that an animal was controlled to the extent that it would not touch a person accidentally, perhaps as a result of pulling away from its handler. Dogs tend to do such things. Of course, we would all like to think that the dog handlers have absolute and complete control over their charges at all times, but it must be foreseen that in certain circumstances, despite all reasonable precautions, someone will be touched by a dog during a general drug search.
The bill makes appropriate provision for inadvertent contact. Such a provision should not be necessary, but in view of the Local Court determination, its inclusion in the bill is probably very wise. In his second reading speech the Minister emphasised the importance of using trained dogs to detect and arrest drug traffickers. When drug users rather than drug traffickers are detected, those users are encouraged to enter diversionary and treatment programs. I note that the New South Wales Ombudsman will monitor the legislation over the first two years of its operation. While conducting his oversight, the Ombudsman will be required to report as soon as possible after the expiration of that two-year period. The report will be compiled with the assistance of police, who will provide statistical data on the use of the dogs.
There should be no doubt that the Police Powers (Drug Detection Dogs) Bill is necessary because of the vagaries and strange decisions that have emanated from the Local Court. I have noted that some of the amendments relate to the issue of the dogs wearing a uniform. I am not sure how Constable Woof would be dealt with in this regard, nor am I sure whether an operation would be classified as overt or covert.
The Hon. Duncan Gay: I'd like to see a dog in uniform.
The Hon. JOHN JOBLING: My colleague said that he would like to see a dog in uniform. That reminds me of wedding photos that appeared in the Newcastle Herald last Saturday in which a bride was being led down the aisle by her labrador dog, which was wearing a pink tiara. The bridal party comprised four dogs—one female and three males. The male dogs were wearing imitation dinner jackets. That was a little unusual, and I hope that if dogs are put into uniforms we will not see anything like that. We should see something that would be respectable in a regiment. In that way the regimental mascot could be well represented.
The Hon. Michael Costa: Fox skins.
The Hon. JOHN JOBLING: The Minister suggests fox skins. I do not necessarily agree, but I understand the irony. A uniform would need to be simple and not constrain or inhibit a dog's movement. That could be done, and the dog would be identifiable, but what a joke it is! Throughout the world most dogs are friendly. They walk up to people and in most cases people are happy to give them a pat and the dog gives a lick in response and goes on its way. Most people have no problems with that. It has taken the Minister a week to discover the Opposition's policy, and he appears to have picked it up. The Minister now knows that the Opposition does have policies. The Opposition supports the bill.
The Hon. HELEN SHAM-HO [8.21 p.m.]: I am pleased to support the Police Powers (Drug Detection Dogs) Bill, which seeks to clarify the powers of police officers in relation to the use of drug detection dogs, or sniffer dogs. The long title is:
A bill for an Act with respect to the use of dogs by police officers to detect prohibited drugs and plants.
Under this bill, police will be able to use drug detection dogs in licensed premises such as nightclubs and bars, although not in restaurants, and at sporting and entertainment venues, parades and festivals, and on transport lines as declared by regulation. The bill will also allow police to apply to a magistrate for a warrant to use drug detection dogs in locally based operations. The use of sniffer dogs by police is not new. The first police sniffer dogs were introduced in 1979 to perform tasks such as locating missing or deceased persons and detecting explosives. Last year, the New South Wales Police Service received 30 additional sniffer dogs to cope with the demands of the Sydney Olympic Games. Sniffer dogs are extremely well trained and I am told that they are worth about $100,000 each, and that they are worth it.
The Hon. Michael Costa: Who told you that?
The Hon. HELEN SHAM-HO: Your adviser.
The Hon. Michael Costa: My adviser?
The Hon. HELEN SHAM-HO: No, but we were told. Anyone who has seen a sniffer dog in action will know that they have a formidable ability to discriminate between smells. For that reason, sniffer dogs have assisted police in the detection of illegal drugs since 1999, with a high rate of success. In the several thousand cases that have been heard since drug sniffer dogs were introduced two years ago, only four alleged offenders have pleaded not guilty. For the past 15 months or so, the Police Service has used drug detection dogs to detect illicit drugs in nightclubs, hotels, railway stations and streets throughout the State. However, under current law police officers do not have a specific legislative power to use sniffer dogs in public places.
It is in that context that the recent decision in Police v Darby was handed down by the Deputy Chief Magistrate in the Local Court. In that case the magistrate found that the actions of a sniffer dog in detecting an illicit substance on a man in a city street constituted an illegal search because it was conducted without reasonable suspicion. As honourable members would know, the Drug Misuse and Trafficking Act 1985 allows a police officer to stop and search a person if the officer has a reasonable suspicion that the person is in possession of a prohibited substance. As a consequence of that decision there has been much uncertainty surrounding the use of sniffer dogs by police.
I assume that this bill has been introduced because of the judgment in that case. I congratulate the Minister for Police on his quick reaction in introducing this bill; he is very proactive. The bill authorises police to use drug detection dogs to carry out what is referred to as general drug detection. As I understand it, that means that when a police sniffer dog picks up a positive scent on a person, and providing the officer is in an authorised location, the officer has a reasonable suspicion to conduct a search. Simply being sniffed by a dog does not in itself constitute a search. I am pleased that the law in that area will be more certain in future.
Sniffer dogs provide a valuable resource for police officers. They provide an efficient and effective method for determining whether a police officer has reasonable grounds for believing that someone may be carrying a prohibited substance. As I said to the Minister for Police, the dogs are worth the money because of their efficiency. Honourable members would be aware that the level of police resources in this State has been inadequate for some time, a matter which concerns me and others. For example, the adequacy of police resources in Cabramatta was thought to be so dire that it was included as one of the specific issues identified in the terms of reference of the General Purpose Standing Committee No. 3 inquiry into Cabramatta policing.
At a Government briefing on 4 December, an adviser to the Minister for Police acknowledged that there was a need for sniffer dogs to be used in areas such as the Cabramatta railway station. I agree totally. That acknowledgment is most appropriate. As the report into Cabramatta policing makes clear, a drug use and drug crime problem exists in Cabramatta. Until recently Cabramatta railway station was the hot spot for drug dealing in New South Wales, with users of public transport regularly approached by people selling drugs. I have been told by members of the community and police officers that as a result of the inquiry the situation in Cabramatta has improved markedly.
Following independent information that I have received, I took the trouble of ringing the local area commander, Superintendent Frank Hansen, to congratulate him on doing a good job. Drug dealing in that area does not operate on the scale that it once did. I am sure the Minister for Police, the Hon. Michael Costa, was told the same thing during his recent visit to that suburb. I hope that he will continue to keep an eye on the suburb so that recent gains achieved as a result of the inquiry and the Government's Cabramatta package do not come undone. I remind the Minister that General Purpose Standing Committee No. 3 will revisit the situation in Cabramatta in the first half of next year. The Minister has already given me a reassurance that he will fully co-operate with that inquiry.
I understand that a number of civil libertarian arguments have been voiced on this bill, as is often the case when police powers are debated. I am also aware that in the case of Police v Darby, to which I referred earlier, the Deputy Chief Magistrate expressed the view that the use of sniffer dogs breached international civil rights legislation. I do not know whether that is the case, but for my part I am confident that this bill does not infringe or jeopardise people's civil rights. In truth, this bill does quite the opposite since it places restrictions and controls on the use of drug detection dogs by police officers when previously there were none. I have also heard the argument that people might be unnecessarily humiliated in public if a drug detection dogs makes a mistake in identifying them as being in possession of an illegal substance.
The Hon. Richard Jones: They have been, many times, and they were not in possession.
The Hon. HELEN SHAM-HO: Yes, I know. I am coming to that. In response to that argument I make two points. First, I remind honourable members that police sniffer dogs do not make physical contact with people, as the Hon. John Jobling said. Police sniffer dogs are trained to pick up a scent and either sit down in front of the person or paw at the ground. They do not touch a person at all. Indeed, they do not even sniff the person. Second, we must balance the prospect of someone being incorrectly identified by a sniffer dog and being searched by a police officer against the escalating problem of drug use and drug crime in this State. I believe that people will find that being momentarily embarrassed in public is a small price to pay. I certainly would not mind.
Whilst I support the use of drug detection dogs, a strict law and order approach to the State's drug problem is simply not enough. As I have said on numerous occasions in this House, we need to introduce more health-based social welfare and diversionary schemes for drug users in this State. We must address the conditions and factors that render young people vulnerable to drug dependency in the first place, such as poverty, family dislocation, social disadvantage and long-term unemployment. Only then will we be able to solve this complex social problem. I support the Police Powers (Drug Detection Dogs) Bill, which I believe will clarify the law as it relates to the use of drug detection dogs by police officers in this State. At the same time, it will provide appropriate safeguards and controls to ensure that individual civil rights are protected. I commend the bill to the House.
The Hon. RICHARD JONES [8.31 p.m.]: I oppose this legislation, which is part of the Carr Government's push towards a police State. The Minister for Police may laugh. The Minister's hypocrisy in introducing this legislation is also laughable, given that he himself has used marijuana in the past—and he knows full well that he has.
The Hon. Michael Costa: Where's the evidence?
The Hon. RICHARD JONES: Do you want evidence? I can provide it, if you want. When sniffer dogs were first used, there was a huge public outcry. In Byron Bay, for example, week after week the story was on the front page of the Byron Bay newspapers. Even the mayor attended a demonstration of 1,000 people and complained about the breach of civil liberties. Many people spoke about how gross it was for police to stop people in the street at random and search them. In Mullumbimby, for example, a teenager was strip searched in the street, but nothing was found on him. The Minister for Police believes it is okay to simply strip search people in the street. That has happened to many people. One person was stopped and searched for having a hemp wallet on his person. I saw the police in Byron Bay stopping teenagers at random and searching them. Many editorials on the issue have appeared in Byron Bay newspapers. For example, an editorial in the Northern Star, one of the major newspapers in Byron Bay, stated:
Who in NSW Police Commissioner Peter Ryan's office authorised the use of sniffer dogs to detect a paltry amount of cannabis on the tourist town's streets a few weeks ago?
This police operation, unprecedented in New South Wales, with the possible exception of random stoppages and searches of cars coming in and out of Nimbin earlier this year (using Customs sniffer dogs), raises serious privacy issues.
Most reasonable people would applaud the frontline role played by police sniffer dogs and their handlers in busting criminals who try to import hard drugs.
These teams are also deployed beyond airport luggage collection areas and shipping terminals to other covert drug operations for big-time seizures.
However, the overkill of directing sniffer dogs on to the general population smacks of an Orwellian police state.
That is a conservative newspaper editorial referring to "an Orwellian police state". The editorial continued:
What was achieved?
A few dozen recreational dope smokers will be hauled before the courts over the coming weeks and be fined. Some of them may launch legal challenges.
In the process, up to 1000 local people and tourists, many from countries with a more liberal attitude towards cannabis, were made to feel like hunted criminals.
Contrast this gung-ho approach with the softly, softly policing of Bob Dylan's Ballina concert.
Police sniffer dogs were not used at that concert. An editorial in the Echo written by David Lovejoy stated:
In a three day operation dozens of people were stopped and searched, resulting in three grams of amphetamine and 841 grams of marijuana being found and 55 arrests. The statistics do not convey the sense of invasion and outrage that these incidents kindle in their victims. You can be stopped and questioned merely because there was a joint in your pocket two weeks ago. Or because your partner is a heavy ganja smoker, even though you are not. There have been reports … of people being bundled into a van for strip searches, and there have definitely been humiliating pocket searches conducted on the pavement in full public view.
If the notion of police sooling dogs on to … the young and poor in the street to sniff out drugs does not alarm you, imagine teams of tax inspectors stopping well-to-do people at random and examining their financial records. Imagine it done with the maximum amount of arrogance and menace.
Under this legislation police will not stop people in their Mercedes, Audis or other expensive cars, but only those at railway stations. It will be teenagers who will be caught. The Government is targeting young people, 50 per cent of whom use cannabis or have used cannabis in the last year. Incidentally, 40 per cent of people in New South Wales have used cannabis in the last year—including members of this House, I might say. The Government's hypocrisy in introducing this legislation is absolutely astounding, and the reaction from the public has been equally astounding. There is no question but that the Government will suffer for it. The Minister for Police does not seem to realise the impact that the legislation will have on people in the streets.
Some months ago I was stopped outside the Parliament by a businessman dressed in a suit. He asked, "What are you going to do about the drug dogs?" That was the first time I had heard about it. I replied, "What are you talking about?" This senior businessman, who probably earns far more money than members of Parliament earn, had been stopped in the street and searched. Time and again people have told me that they have been stopped in the street at random. David Lovejoy's editorial in the Echo continued:
The law, because of its presumption of innocence, does not allow police to conduct random searches on citizens passing by. They must have reasonable grounds to do so. Walking along the street with a dog that has been habituated to certain drugs so that it will show immediate interest in anyone carrying the aroma of its addiction is a cold-blooded policing tactic introduced in Sydney for the Olympic Games last year …
The law also forbids the victimless "crime" of using marijuana as your social drug of choice instead of the legal drugs tobacco and alcohol.
There are members in this Chamber tonight who have used alcohol, are there not?
The Hon. Michael Costa: No.
The Hon. RICHARD JONES: Yes, there are.
The Hon. Michael Costa: Not me.
The Hon. RICHARD JONES: Perhaps the Minister has not, but others have. The editorial continued:
However, community attitudes towards cannabis have mellowed considerably since those laws were framed in the politically paranoid 1950s, and in April last year police were given the option of issuing cautions to people found with small quantities of marijuana instead of arresting them.
Many thousands of people throughout the State are being stopped and searched by police with sniffer dogs, and the public reaction to that has been amazingly powerful. The Minister for Police seems to be totally oblivious to that, much to my amazement. The legislation was initiated as a result of a court case some weeks ago. In the case of Police v Glen Paul Darby, the Deputy Chief Magistrate found that a search by a sniffer dog was a breach of international civil liberties. The magistrate referred specifically to Article 17 of the International Covenant on Civil and Political Rights, which provides:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
That is what has been happening during the past several months: people have had their privacy breached on the streets. The Office of the High Commissioner for Human Rights made the following comment regarding Article 17:
A paper provided by the Redfern Legal Centre gives examples of what happened during these random searches. An article in the paper entitled "Sniffer Dogs in Action" stated:
Article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honour and reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.
These are not heroin dealers; they are only cannabis, ecstasy and cocaine users—minor drug users.
It's 1 am, early Sunday morning. The DJ came on about an hour ago and now the dance floor is full. The rest of the club is packed and there is a queue forming outside. When the music stops no-one can see what's going on. It isn't until the lights come up a few minutes later that everyone can see the uniformed police and their dogs. They have blocked the exits and a couple are escorting the DJ away from the booth, despite her protests. There is a flurry of activity on the dance floor. People are throwing pills away from them and a few are swallowing one, two, three at once. The police start herding people out the doors. As each person leaves they are sniffed by a dog. In the street, the police have the people who were waiting to get in, lined up being sniffed. There are a few staff in that line too. Whenever the dog sits down in front of a person, they are physically searched by a police officer. One or two employees of the club are searched and it doesn't look like they'll have a job for much longer. One guy who was searched and questioned was out with his new workmates. He didn't have anything on him but he was humiliated in front of them all. Some of them look a bit suspicious of him now. The whole process takes ages and there are people stuck inside for over an hour, just waiting to get past the dog at the door. After a couple of hours, the police take about 25 people away.
The Hon. Patricia Forsythe: If you brought an apple in through the international airport a dog would sniff you there as well.
The Hon. RICHARD JONES: That is quite a different matter. That is not random searching of people in the streets just going about their business. A friend of mine who had been in a refugee camp in Poland and had escaped said today, "I came from Poland to escape the police state and now the Carr Government has introduced a police state in New South Wales." An American said to me, "I had no idea that New South Wales was a police state." With random police searches New South Wales will be turned into a police state. I will give another example:
Here is another story:
It's 3.30pm on Wednesday. Schoolchildren are waiting on the station platform for their trains home when a police officer and a dog approach a group of girls in uniform. The dog sniffs them and their bags and the officer asks one of the girls whether there have been any drugs in the bags or if she has had contact with anyone with drugs recently. Her friends think it's hilarious but she is mortified.
This man was a user. What an awful waste of police time! In the meantime the dogs do not sniff heroin, only cannabis. A person can walk down the streets of Byron Bay with a kilogram of heroin, cocaine or ecstasy and a sniffer dog would not pick it up—yet if a person carries one-quarter of a gram of cannabis, which is a harmless drug that I have used for 36 or 37 years, a sniffer dog would pick that up. In the past 12 months 40 per cent of people in this State have used cannabis, and they should be able to use it if they wish. If people wish to drink alcohol or smoke cigarettes—and two or three people here used to smoke cigarettes—they should be allowed to do so. If people wish to use marijuana they should be allowed to and, in fact, they do. Recently I was in Amsterdam and although I did not use any cannabis there the coffee shops everywhere were selling different types of cannabis—such as Lebanese wedding hash, Nepalese temple balls, Congolese black, South African Durban poison, almost anything one might wish—and there were no problems on the streets at all. In the flower markets they were selling starter kits for growing cannabis.
It's 7pm, Thursday night. The footpaths are busy with people heading home, or going out for a drink, dinner, just hanging out. Two police officers in uniform are walking the street with a dog. When one guy crosses the road in front of them, they call him back. They want to know why he was crossing the road—was he trying to evade them? They want to get the dog to sniff him but he insists that they write down that he did not consent to that. This just makes them more suspicious, and sure enough the dog seems to think she's found something. The police ask the man to empty out his pockets right there on the street. There are a lot of people just hanging around for a look. In his pockets there is almost enough hash for a single joint. The police take him to the station.
The Hon. Patricia Forsythe: That doesn't make it right.
The Hon. RICHARD JONES: It doesn't make it wrong. Cannabis use in Amsterdam is no more prevalent than it is here, but people in Amsterdam are not being arrested on the streets, they are not having their civil liberties violated. In fact, cannabis is used less here than it is in the United States of America. The Government held the Drug Summit, which was supposed to be the Government's new direction, yet it has ignored the findings of the summit and has moved in the opposite direction. The Carr Government has no tolerance on marijuana users, while heroin users get off scot-free. A question from Ms Lee Rhiannon revealed that 1,584 people have had legal proceedings taken against them, presumably in the past year, and these people are aged between 15 years and 70 years of age. Frank Aitchinson, a 70-year-old man, was arrested for having cannabis even though it was for his partner, who had a brain tumour. He was fined even though the cannabis was for medicinal purposes, yet this Government says it will allow it for medicinal purposes.
Raids have been carried out on Oxford Street and in Kings Cross. On 21 October five raids were carried out and 1,500 partygoers, ordinary people like you and me, were having a good time—some were on ecstasy, cannabis and goodness knows what else, but they were not harming anyone. Nevertheless, the police raid embarrassed them. Only 14 people were charged with possession and a mere four were charged with supply. This raid took up the time of many police officers and cost public money. Sniffer dogs will be resisted by the people. The last time sniffer dogs were in Byron Bay the police were not able to stop anyone because the local people have a telephone tree and they turned up en masse to prevent the dogs from operating. They will do this time and again.
My advice to the people of New South Wales is not to harm the dogs because they are only doing their job, but to pat the dogs, offer them a biscuit—perhaps a hash biscuit—and say, "Sit. See if you enjoy this, mate." The dog will be out of it too! This move will be resisted by the people of New South Wales, who reject the Carr Government's zero tolerance policy on cannabis and its move towards a police state. The Carr Government will suffer as a result at the next election. Many of the people who vote for the Australian Democrats, the Greens and other Independents will not give their second preference to Labor, which has introduced a police state and has proved itself to be a fascist Government. People will not vote them back in if they are going to treat the ordinary citizens of New South Wales like this.
Ms LEE RHIANNON [8.46 p.m.]: The Greens strongly oppose this bill, which will legitimise the arbitrary and heavy-handed use of police powers with regard to sniffer dogs. One of the hallmarks of a free and democratic society is that its citizens should be able to go about their business free of the arbitrary intervention of the police. Unless there is an immediate threat to human life—for instance, a bomb threat—ordinary people should be able to walk down the street, catch a train or go to the pub without being arbitrarily searched when there is no reasonable suspicion that they have committed an offence. We would not tolerate police randomly stopping people in Macquarie Street and searching them, for whatever reason, in the absence of a reasonable suspicion that they had committed an offence. Many Opposition members would be the first to complain if they were confronted by dogs on Macquarie Street.
However, this Government has sneakily introduced just that practice. Police are using trained dogs to randomly and arbitrarily search members of the public when they have no suspicion, reasonable or otherwise, that an offence has been committed. It is an outrageous and flagrant breach of civil liberties and it lessens our claim to live in a free and democratic society. I note that the Hon. Patricia Forsythe has once again referred to the airport. Airports need to be searched. We are not arguing about that, but about the targeting of certain sections of the community in a sensational way. The obvious question arises: Why are the police doing this? It certainly is not to catch serious criminals. In one infamous operation in Oxford Street around 300 police were deployed to raid five clubs. They succeeded in arresting and charging only 19 people. I understand that the majority of these arrests were for possession.
Despite people's beliefs about the rights and wrongs of illegal drug use, no-one could seriously argue that a person on Oxford Street enjoying a night out, carrying a small quantity of drugs for personal use, is a serious criminal. Again I say that the use of sniffer dogs is not about catching serious criminals; it is a stunt. People may laugh at the comments of the Greens, the Democrats and other Independent members on this issue, but they should remember that when there was prohibition of alcohol people also joked about that, but eventually we got rid of prohibition because people saw that it was damaging to the whole fabric of society. One day sense will reign with respect to drug use. We need to get to a point where we can handle drug use in terms of its social and health impacts. Then we will be able to control it. At the moment drug use is not being reduced by the ridiculous tactics coming from the Government.
I return to the case of the 300 police. The real reason for the use of sniffer dogs was the simple fact that one group knew about the raid long before it occurred. We understand that about 36 hours before the raid Channel 9 knew about it, and was assembling its team so it could be there to capture the action for the nightly news scoop. It was a stunt. We see more of these stunts coming from the new police Minister, but this was, purely and simply, another public relations stunt—another bit of shallow and shameful law and order spin from this deeply reactionary Government. But it is a public relations exercise with dangerous implications. Members need to consider that carefully, because there are dangerous implications in running a drug policy in this way. Surely, the inevitable consequence is that people going out for a big night on Oxford Street or any other clubs—
The Hon. Richard Jones: Or anywhere in the State.
Ms LEE RHIANNON: Yes, anywhere in the State, as I am reminded by Mr Jones. In fact there are clubs all around these parliamentary precincts. What might happen now when people are considering going for a night out? The Greens are hearing anecdotal evidence that people are taking their drugs before they go out. I understand that previously people would take tablets or a few joints with them to top themselves up later, so to speak.
The Hon. Patricia Forsythe: And break the law.
Ms LEE RHIANNON: Yes, they do. Many people break the law—like alcohol drinkers once broke the law. But society changed its attitude to the drinking of alcohol. I urge members whose drug of choice is alcohol to consider what it would have been like, when they were young men and women, if alcohol had been banned. What would they have done on the big Saturday night out, when they were looking forward to seeing their boyfriend or girlfriend? They would have got a skinful before they went out—just like a lot of recreation drug users do.
The Hon. Dr Brian Pezzutti: Speak for yourself!
Ms LEE RHIANNON: I do not use drugs. The member knows that that is what happens. That is what many did under prohibition. Many people in this State, because of the crazy use of sniffer dogs, are taking their drugs before they go on their night out. That removes the risk of being caught by sniffer dogs, but it has serious implications for the health of the individuals concerned. That is why the policies of this Government on drugs are so dangerous. The Minister might ridicule the Coalition as a policy-free zone, but the policies of the Carr Government are dangerous and life threatening. Several courageous individuals took the Government to task for introducing this sneaky use of sniffer dogs. They contested a case, and a magistrate ruled the use of sniffer dogs to be an unlawful search. Many people from civil liberty groups and various legal centres had predicted that these searches would be declared illegal , as was upheld by the magistrate. Of course, it should be an unlawful search. It is a fundamental principle that police cannot search people without a reasonable suspicion that an offence has been committed. The Greens argue that that must remain so.
But now, flying in the face of all reason, both legal and moral, the Government has brought forward legislation—effectively an admission that it had acted unlawfully originally—to validate the random use of sniffer dogs. This really is a shameful act by a morally bankrupt Government. It leads us to ask, once again, where will all this stop? How many more rights is the Government prepared to take away? How much further is the Government prepared to encroach upon our basic freedoms in the pursuit of tabloid glory? If honourable members look at the legislation that rolls through this Chamber they would have to think that more damage would be done. Before members settle back and think that this could not happen to them, I should tell them that the Greens have heard several accounts of individuals being stopped by police after dogs had detected those individuals were carrying prescription drugs.
The Hon. Doug Moppett: Have you been stopped for a random breath test?
Ms LEE RHIANNON: Yes, I have.
The Hon. Doug Moppett: Isn't that even more invasive?
Ms LEE RHIANNON: That is something that our society has agreed to.
The Hon. Doug Moppett: Our society agrees with the use of sniffer dogs.
The Hon. Dr Arthur Chesterfield-Evans: Why not in the dining room and the Chamber?
Ms LEE RHIANNON: I think that would be useful.
The Hon. Patricia Forsythe: I don't think anybody would be against random breath testing.
Ms LEE RHIANNON: That is about driving, which is a special case. And, yes, there have to be controls. People who use alcohol or other drugs compromise their driving ability. Their use is dangerous if people intend to also drive. We all know that. But here we are talking about a different issue involving random searches, and the member knows that to be the case. The use of prescription drugs is very worrying, and this is an issue on which the Government seems to be in a void. More fundamentally, once you start eroding the principles of law that keep us free, which restrain the use of arbitrary power by the State and its agents, then ultimately no-one is safe. Maybe now the Government is picking on easy targets—casual recreational drug users—but these things have a way of expanding once the principle is breached. It most definitely has been breached in this case.
This bill also raises the general issue of drug policy in New South Wales, and the enforcement of the drug laws that are in place. The use of illegal drugs is, as we know, widespread in New South Wales. In many circumstances illegal drug use can be harmful to the individual and to society. The Greens certainly acknowledge that. That is why we speak out on these issues—because we recognise that illegal drug use, from alcohol to hard drugs, can be harmful to the individual. We cannot grapple with that issue and give people the assistance that they need while some drugs remain illegal. Look, however, at the question of what we should do about this issue, and there is no general agreement. That is apparent from tonight's debate. But, when it comes to Government policy on this, the Government clearly has it wrong.
Prohibition of cannabis and other drugs in New South Wales has been, and continues to be, an absolute and complete failure. I defy anyone to deny that the drug tactics of the Government are a complete failure. Where is the evidence that drug use is decreasing? Where is the evidence that people are using less cannabis, less ecstasy, less heroin? I really would like to hear from members of Parliament on this. We just do not have the evidence before us, and that raises a major question about what is going on in the major parties in respect of fighting drugs. Despite the hundreds of millions of dollars spent, despite the tough laws and the stern talking heads, despite even the sniffer dogs, illegal drug use has never been more prevalent than it is today.
The Hon. Dr Brian Pezzutti: What nonsense!
Ms LEE RHIANNON: And the harm associated with that use has never been more prevalent. I note that Dr Pezzutti interjected, "What nonsense!" I would be interested in any figures he can produce to show that the Greens are wrong. Everything from the experts who work in this area indicates that drug use is increasing. Dog searches will not change that. All that members will do by passing this legislation is give the Government a free kick to do its tabloid trawl once again. Surely, on any objective basis of assessment, the current laws must be considered a complete failure. The Greens will continue to say that because the proof is there. Yet what we get from the Government is more of the same—punitive enforcement measures, tough sentences, tough language and the headlines.
Surely it is the definition of stupidity to keep trying the same tactic over and over despite the fact that it has never worked. The war on drugs in the United States of America did not work, and it certainly is not working in New South Wales. That is what makes this bill so tragic: we are losing our freedoms, not as part of some noble campaign to improve lives and fight oppression, but to continue a tragic path of expensive failure that is responsible for so many people needlessly ending up in gaol or even dead.
The Hon. Doug Moppett: Don't kid yourself that you are on any noble cause.
Ms LEE RHIANNON: I am not saying this is a noble cause. All we are trying to do is inject some logic into this debate—because it is certainly not there at the moment. I acknowledge the reference to the heavy drug use in which Dr Pezzutti is involved, that is, tobacco.
The Hon. Ian Cohen: He is an addict.
Ms LEE RHIANNON: I know. I agree with my colleagues Mr Cohen and Mr Jones, who have said that Dr Pezzutti is an addict. That is unfortunate because tobacco addicts have more trouble getting off tobacco than heroin addicts have getting off heroin. Tobacco is deeply addictive.
The Hon. Dr Brian Pezzutti: Do you use underarm?
Ms LEE RHIANNON: Dr Pezzutti really sinks to low depths. We will only begin to turn around the harm caused by illegal drugs when we change tack and begin to dismantle prohibition.
The Hon. Patricia Forsythe: Until you arrived in this Chamber we could have a debate without being personal, we could discuss the issues without getting personal.
Ms LEE RHIANNON: I did not get personal, Dr Pezzutti did. Why was he not pulled up? This bill also highlights the problematic nature of discretionary police powers. As was found by the Woods royal commission, giving police discretionary powers inevitably leads to the subjective application of those powers, discrimination and even corruption. Discretionary powers are linked with corruption. Allowing police to deploy sniffer dogs without a warrant is a clear example of dangerous discretionary powers. What provisions are in place to stop those powers from being used in a discriminatory manner?
The Hon. Dr Brian Pezzutti: Who writes this stuff?
Ms LEE RHIANNON: Can Dr Pezzutti answer why only Oxford Street and Nimbin? Why not Macquarie Street and the Sydney Stock Exchange? The big end of town is where the money is, and drugs cost big money. The Opposition is like the right wing of the Labor Party these days; it is really missing the point. Does the Minister want to be associated with the Opposition? Nobody can tell me why only Oxford Street and Nimbin are being targeted. Apart from geographic discrimination, are we supposed to believe that police will not target individuals based on their appearance? Clearly young people and alternatively dressed people will be targeted by the police. We have heard such anecdotal stories time and time again. It is exactly that sort of officially sanctioned discrimination that creates widespread resentment of the police and of government in general in our society.
The Hon. Richard Jones: They are targeting the young and the poor.
Ms LEE RHIANNON: The point just made by Mr Richard Jones is so very true. This legislation is at odds with the recommendations of the Drug Summit that police should devote their law enforcement resources to suppliers and manufacturers. Those recommendations, which emanated from the very important summit held in this Chamber, are now being undermined in such a serious way. The Greens will oppose this bill in its entirety.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.03 p.m.]: The Australian Democrats are opposed to this bill. We believe that it violates basic civil rights, and in the end it will be ineffective. The fundamental question of this bill is whether the use of a sniffer dog, in close proximity to a person, constitutes an invasion of privacy and a search? This is an important concept because the bill empowers police to use sniffer dogs randomly, without the requirement of suspicion. The other argument is that if sniffer dogs are simply a tool that cause police to have a reasonable suspicion, they would then be able to carry out a search within their statutory powers under section 37 (4) of the Drug Misuse and Trafficking Act 1985 and section 357E (a) of the Crimes Act 1900. Privacy is the bedrock of civil liberties. An article in the United Nations Educational, Scientific and Cultural Organisation Courier stated:
Privacy is extremely important. In the United States of America, unreasonable searches and seizures are protected by the Constitution of that country, which states:
The recognition of privacy is nevertheless deeply rooted in history. The Bible makes numerous references to it. Jewish law has long recognised the concept of freedom from being watched. There were also protections in Classical Greece and ancient China. The Hippocratic Oath, dating from 300 BC, demands the confidentiality of doctor-patient relationships. Western countries have had protections for hundreds of years by, for example, applying rules to arrest peeping Toms or eavesdroppers. In the early 19th century, parliamentarian William Pitt famously wrote, "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.
The Australian Democrats believe that the provisions of this bill constitute an invasion of privacy. The Democrats will move an amendment that will ensure that searches by sniffer dogs are not carried out in public places. There have already been several reported cases where persons, who were subsequently found to possess illegal substances, have been searched in view of the public. On 7 November the Sydney Morning Herald reported:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Outside an Oxford Street nightclub DCM, police forced partygoers to stand in groups of five with their legs apart, bags on the ground, facing the wall. A dog handler then walked a chocolate-coloured Labrador past the group.
In the case of university student Claire Clarkson, four other people were allowed to go but she was escorted down the street to be searched by a female police officer in front of hundreds of onlookers.
"The dog was sniffing around but I didn't notice anything unusual about the dog's behaviour" Clarkson says. But the others were allowed to go and the woman said "The dog has identified you as being in possession of an illegal substance."
So she went through my bag, made me take off my boots and socks and shake my top out in front of everyone. It was absolutely humiliating, especially being searched in front of all the people. And especially when you are innocent.
On a radio interview on 2UE, a caller named Emily said:
The interviewer then asked:
It was after the dog supposedly detected something on me that it became an issue... just at my local hotel and I had only just walked in and sat down and had about three mouthfuls of beer and the dogs came in.
And in your own local pub you know the people who are involved in those sorts of activities and anecdotal evidence came out that there were actually some people there who were in possession and they just made their way to the toilet and concealed it until after the event.
For whatever reason the dogs came up to me and did whatever they did and reacted in a particular way and the guy with the dog came around and said "We've got our first one."
Did you have anything on you?
No, absolutely not and I fully co-operated and they took me out the door into a public car park outside the hotel and the lighting was quite bad. It was just going on winter about 6 pm and it was a bit dark so they put me under a spotlight at the entrance to the drive-in bottle shop.
The interviewer asked:
Where everyone could see you?
Oh! Everyone driving down the street, everyone that had to come through the drive-in bottle shop. At one stage I had to move myself and the two lady coppers that were basically doing everything but strip searching me out of the way so a car could drive through and buy their beer.
But there was nothing, I fully co-operated, I had no implements, I had nothing on me, I just sort of question the tactics of someone out into a public area to conduct that type of search, I mean if they really thought I was suspicious and had something on me it would be more appropriate to take me to the manager's office or to the ladies room, or something.
Our civil liberties are already being significantly invaded and this bill has not yet passed. Two cases have explored whether a person being sniffed by a dog is in fact being searched. The basic facts in the case of Police v Glen Paul Darby, reported on 31 October at the Downing Centre Local Court, were that on 24 February Mr Glen Darby was standing outside a nightclub on Oxford Street when he was detected by a sniffer dog. He was subsequently searched by police officers and charged with possession of prohibited drugs. The charge came before Chief Magistrate Jerram on 31 October. Jerram determined that the use of the sniffer dog in the circumstances rendered the search illegal.
The crux of the case was the requirement that the police officer form a "reasonable suspicion" that the defendant was in possession of a prohibited drug before conducting the search. The defendant argued that the use of the dog commenced the search and that the police officer had not formed a reasonable suspicion prior to the dog's sniffing around the defendant and indicating the detection of a scent by pointing its nose at the defendant and sitting in front of him. The prosecution argued that the use of the dog was not part of the search and that the physical search by the police officer was undertaken only when the dog indicated that it had detected a prohibited drug on the defendant. The police used the dog's reaction to form a reasonable suspicion. In finding that the use of sniffer dogs rendered the search illegal, Jerram stated:
This law was in the pipeline before these cases came to court. Sniffer dogs are now used to create reasonable suspicion that then enables the police to conduct a search. The Law Society feels, as I do, that this is an invasion of privacy and, in its briefing note to us, states:
I find what police dog Rocky did in fact to be a search and therefore being the cause of the police forming what no doubt were reasonable suspicions because it precedes the formation of those suspicions to not come within s 37 of the Drug Misuse and Trafficking Act.
Parliament must decide between harm minimisation and invasion of civil rights. That is the linchpin of this argument. The drug war is being lost and attempts to control the use of illegal drugs in society—which is driven by popularity and economics—are increasingly invading civil rights. As those attempts continue to fail, that invasion becomes more and more oppressive. We are repeating the prohibition debate of the 1930s but this time it is about drugs rather than alcohol.
Police do not have (and should not have) power to randomly detain and search a person in the absence of a reasonable suspicion. It is the view of the Law Society's Criminal Law and Children's Legal Issues Committee that any police activity which involves:
- police using dogs to detain or direct a person in any way, and/or
- the dog coming close to (within 1 metre) or touching a person,
constitutes a search and should not be permitted without reasonable suspicion.
We have now reached a ridiculous stage. I hope in a few years people will realise that the attribution of a moral dimension to the use of illegal drugs for recreational purposes is an absurdity and that invading civil rights does not produce the same social benefits as taking an intelligent approach to drugs, such as judging them according to their pharmacology and medical effects rather than in a moral context. The latter is a superior approach. I hope that we will take that approach one day and that silly laws such as this bill will be consigned to the dustbin of history where they belong—although this law is unfortunately being born before our eyes tonight. We naturally do not support the bill, but it looks suspiciously like it might be passed by the House.
The Hon. PETER BREEN [9.13 p.m.]: I am pleased to oppose the Police Powers (Drug Detection Dogs) Bill. In doing so I note that the Leader of the Opposition in the other place first proposed increasing police powers by using sniffer dogs. The Government is now chasing down the Opposition's policy with an attack dog of its own in the form of the new Minister for Police. Those opposite should listen to this; they might learn something.
The Hon. Duncan Gay: I am listening.
The Hon. PETER BREEN: The Deputy Leader of the Opposition cannot listen and talk at the same time. Among those who lobbied me about this bill is a prominent western suburbs solicitor who said that the purpose of the legislation is to make the police Minister look good. I assured him that nothing could make the Minister look good in the context of this legislation. This bill is a blatant appeal to the worst kind of populist politics: extreme views about law and order. Populism appeals to the left and the right of the political spectrum. While the right emphasises strong leadership, the left demands popular equality.
The bill involves the strong leadership aspect of populism demanded by those from the right of the political spectrum, who are so often represented in history by police with dogs. During Patrick's waterfront dispute, for example, we were constantly reminded by the union movement of the symbolism behind the black shirts and the guard dogs that defended the wharves against ordinary citizens who were trying to go about their daily lives.
The Hon. Michael Egan: They weren't sniffer dogs.
The Hon. PETER BREEN: Agreed. This situation is the reverse of the waterfront dispute: an attack dog Minister, a product of the union movement, is introducing legislation to give police and their dogs the power to interfere in the personal and private lives of ordinary people. This legislation is a disgrace to those who promote it. I have mentioned that with this legislation the Minister is chasing the policy of the Leader of the Opposition. Mrs Chikarovski's foreshadowed legislation was a proposed amendment to the Drug Misuse and Trafficking Act 1985, but this legislation goes much further than the Opposition's proposal. The Police Powers (Drug Detection Dogs) Bill will give general statutory powers to police officers to use drug detection dogs in authorised places without the need for a warrant—and therein lies the rub. Those places include hotels, concerts, dance parties—presumably not those featuring the Pride of Erin or the cha-cha—railway stations and bus stops. These are places where young people hang out, and it is young people who will bear the brunt of this legislation. Mark my words, this legislation will create a generation of citizens who hate police. At a time when the police need the community's support, the Minister for Police is introducing legislation that will undermine that support.
Young people will feel affronted, invaded and victimised by this legislation—and with just cause. They will forever view the police with suspicion, and in many cases contempt. Instead of comfort and security, today's young people will grow up with confrontation and alienation as the hallmarks of their relationships with police. By introducing this legislation the Minister is encouraging anarchy and rebellion. He is stoking the fires of discontent that burn in the hearts of a generation of young people who are the victims of economic rationalism and globalisation. As the Hon. Doug Moppett said, the Minister is helping the Greens to consolidate their recent electoral gains. Before the last election 21 per cent of young people aged under 25 voted for the Greens, but at the last election that figure increased to 36 per cent. It is this kind of oppression and repression that is causing young people to rebel against the major parties and established institutions. Writing in yesterday's Sydney Morning Herald about the election, Tanya Plibersek, the Labor Federal Member for Sydney, said:
The message is the same if I substitute the word "crime" for "refugees". This bill, like so much Labor Party policy, is Coalition policy adopted by the Government. In a debate on self-defence last night, the Hon. Greg Pearce—whom I note the Minister described as another prospective nutter for the crossbench—gave two other examples of the Government stealing Opposition law and order policies.
The challenge for Labor is to decide if we can go on competing with the government on who can be tougher on refugees, or whether the time has come for a more sensible, compassionate approach.
In earlier debate on self-defence, the Hon. Greg Pearce mentioned two other examples of the Government stealing the Opposition's law and policies. One was the Crimes Amendment (Aggravated Sexual Assault in Company) Bill and the other was the Crimes Legislation Amendment (Existing Life Sentences) Bill, or the cement bill, as the Premier described it. Another bill that we will discuss later tonight is the Courts Legislation (Civil Juries) Bill, which also reflects an Opposition policy stolen by the Government. The challenge for the Labor Party is to decide whether it can go on competing with the Opposition on who can be tougher on crime, or whether the time has come—to use Tanya Plibersek's words—for more sensible and compassionate policies.
The Hon. Duncan Gay: We will have to stop developing policies.
The Hon. PETER BREEN: The Opposition will have to stop developing policies. Opposition members can keep pinching One Nation's policies and members of the Labor Party can keep pinching Opposition policies.
The Treasurer should be proud of himself. Tanya Plibersek is an honourable person. Every day in this House at question time I hear the Minister screaming like a banshee at members of the Opposition and saying, "Where is your policy? " I am always puzzled that the answer to the question is not immediately obvious. The Coalition has no policies on law and order because the Labor Party has stolen them. I cannot understand why the Minister for Police does not recognise that when he screams at Opposition members, "Where is your policy?" They have none; the Minister has stolen them.
Even though the time has come for a more sensible, compassionate approach to law and order, the new police Minister behaves like an attack dog, not just in question time but on the question of what is happening in the community. He promised us this legislation on his first official day of his new job. On behalf of the young people of New South Wales and the people concerned about the serious apprehension of drug dealers, thanks for nothing, Minister. Your bill has popular support but so, too, does the death penalty.
Steve Bolt of the Northern Rivers Legal Service says that sniffer dogs are being used for public relations rather than for active policing. Mr Bolt is another person who thinks that sniffer dogs are intended to make the Minister look good. He also says that no dealers have been caught by the dogs in police operations on the North Coast—an important point. Police are not catching dealers, they are catching young people who are using small quantities of drugs. But, according to Steve Bolt, no dealers on the North Coast are being caught.
The Hon. Duncan Gay: No dealers on the North Coast have been caught?
The Hon. PETER BREEN: No dealer has been caught by sniffer dogs on the North Coast. During police raids on the cannabis cafes at Nimbin on 14 May this year two people were arrested on supply-related grounds. But neither arrest was the result of sniffer dog identification. The legislation is not consistent with the Government's purported policy of targeting dealers—a policy that held such great promise at the Drug Summit, as has been pointed out by other honourable members. Last week I asked the Minister for Police a question about the raid on the Oasis and Rainbow cafes at Nimbin. I was particularly concerned about the man who was found to be carrying prescription drugs. These drugs apparently caused what is known as a "false positive" identification by the dogs. I understand that that is a common problem. So far, the Minister has not been able to the answer the question.
Another incident is related in a recent publication by the Redfern Legal Centre entitled "The Cold Nose of the Law", written by Mollie Tregoning. The Redfern Legal Centre interviewed a number of people about their experiences with sniffer dogs. In one case an interviewee named Martin was apprehended with one gram of cannabis. The document states:
Martin was then left on the street next to the car while the officers talked amongst themselves and joked about him and what would happen to him in court. He was eventually handed a piece of paper and the police left. The paper was a caution. The whole process took approximately forty-five minutes.
Martin stated that he was worried about the implications of the possession of drugs. He was concerned about being deported. He felt that during the time he was left waiting by the car, the police were playing with him and acting in an unprofessional manner. He felt disillusioned in the police. He felt he could have no confidence in them, and that anything could happen to him, depending on their whim. He felt that they were not acting 'by the book'.
I refer to another case cited in the same document that involved an interview with Chris, who is a student at Sydney university. The document states:
Chris was searched on the platform at Newtown railway station at midday on a Thursday. He was on his way to university. He was sitting on a bench on the platform when the woman seated next to him reached out to pat a dog which was on a long lead accompanied by two people in 'nondescript' clothing. The handlers told the woman not to touch the dog. The dog then thrust its head against Chris' backpack and sat down close to him. Two detectives approached, also dressed in 'nondescript' clothing. They informed Chris that the dog had detected the scent or possession of drugs and proceeded to search his bag. Every section of his bag was searched; the detectives inspected crumpled pieces of foil and biscuit crumbs, and flipped through the reader Chris was reading for his university course. They had him empty his pockets. During the search, three people Chris knew passed him. He repeatedly asked the police to note that he was not consenting to the search but did not observe any of the four officers do so. He asked to leave and asked to call a lawyer but was told he could not until the detectives had finished.
The detectives did not find any drugs in their search. They then asked Chris to show them a valid train ticket. His identity was radioed in despite the absence of any drugs in his possession, or any other misdemeanour. Chris felt intimidated and degraded by the search.
The document continues:
He says that the operation was conducted by officers from Lakemba command and that they were probably targeting an area where they were most likely to get a 'result'. He doubts that the strategy will have any effect on dealing: 'drug dealers do not catch public transport'.
I received a letter from Marsden Solicitors, which states:
The second thing is that I remind you about what happened to me down at the Snow. I was down the Snow watching night skiing. I was sitting with a group of people. I advise that a helicopter arrived with two policemen and sniffer dogs aboard. The sniffer dogs sniffed all the lines of people at the Snow. I was told by people at the Snow that this happened at least once or twice a week. This seems to be an amazing waste of money. I can assure you that when you go skiing, and I've been skiing for years, you don't take dope with you or, for that matter, any other drugs. It would do too much damage to one's skiing activities.
I must say that when the dog jumped on some poor family man, his two kids freaked out. The Police searched him and found nothing and I thought what a wasted exercise that was.
The Hon. Duncan Gay: I cannot believe they helicoptered two dogs in.
The Hon. PETER BREEN: Mr Marsden said he was there.
The Hon. Duncan Gay: That does not sound right.
The Hon. PETER BREEN: It is in the letter, and Mr Marsden is an honourable man. The problem with the legislation is that it crosses the line between privacy and law enforcement. Nobody would argue—I note that the Hon. Patricia Forsythe raised this issue in debate—with the use of sniffer dogs at airports and other places where luggage and cargo are stored. But drug dealers and smugglers are not going to get caught at licensed premises, sporting events, concerts, or even dance parties. As for including bus stops and train stations or arriving by helicopter in the snowfields, it is arrant nonsense to suggest that drug dealers and smugglers will be apprehended when police have lost the element of surprise.
Police invariably know the drug dealers. If police have suspicions about a person they can get a warrant and by all means use a sniffer dog to approach a suspect. But to approach a commuter, for example, without suspicion and without a warrant, flies in the face of every principle I know involving lawful search and detention. Some people make the mistake of comparing police sniffer dogs with random breath testing. I note that the Hon. Doug Moppett made some comments about this. The difference is that drunk drivers are a danger to the rest of the community as well as to themselves.
Clearing up after the mess caused by a drunk driver is horrendous, in relation to both the financial cost to the community and the emotional and physical damage to people maimed and killed on the roads. If I am stopped by a breathalyser unit I feel as though I am assisting in some small way to keep the road toll under control. The impact of random breath testing has been spectacular in saving lives and preventing injuries.
The Hon. Doug Moppett: I notice that you put a higher value on the result.
The Hon. PETER BREEN: If that is placing a higher value on the result, so be it. The impact on the community of police using sniffer dogs in the way contemplated by this bill is so different from random breath testing that it beggars belief. Police sniffer dogs will not save one life or prevent one injury. What they will do is engender a huge amount of resentment against the police and undo whatever good work the Minister has done since he began his new job. By this bill he will provoke more antipathy and distrust of the police and cancel out any amount of good he might achieve in the apprehension of drug offenders. The Minister is setting up the Police Service for ridicule and derision. Again I quote from "The Cold Nose of the Law":
Although I am opposed to the bill, I recognise that it will become law unless the Minister undergoes some conversion between now and the end of debate, which I doubt will happen. Given the inevitability of the legislation, I will move two amendments in Committee, one to require the keeping of records about the use of dogs and the other to require the police commissioner to report annually to the Minister about a number of matters involving costs and resources. Without proper records and reporting, the Minister will have no idea whether the use of dogs is an effective weapon in the war on drugs. Perhaps he does not want to know and only wants to look good, as some critics have suggested. I oppose the legislation.
It is apparent that the use of aggressive policing tactics does alienate the community, and makes those affected by police actions less likely to co-operate in the future or even ask for police assistance. As the use of sniffer dogs is a strategy which has not shown any significant success in reducing the supply of illicit drugs, this breakdown in good community relations is entirely disproportionate to its ends.
The Hon. Dr PETER WONG [9.31 p.m.]: I support the Police Powers (Drug Detection Dogs) Bill. Taking drugs is wrong, particularly non-prescription drugs, including narcotics, cannabis and ecstasy. We cannot be seen to in any way encourage and support the taking of any non-prescription drugs. Taking drugs can be harmful to one's health and can be totally harmful and destructive to our community. It is totally irrational to argue that because alcohol is legal, we should legalise ecstasy and cannabis. One should try to control and limit the harm that any drugs cause, and it is illogical to try to extend the usage of different types of drugs. One should try also to promote a healthy lifestyle and to avoid taking drugs. I do not see why parties should promote taking drugs, smoking cigarettes, and drinking alcohol to excess.
I have spoken to many people, some of whom live in suburbs such as Cabramatta, about this matter. They are distressed and disgusted by police inability to detain and search drug dealers. I firmly believe that suburbs such as Cabramatta will be much better places because of the provisions of this bill. I am sure the people who live in Cabramatta support the bill. The bill is unfortunate but necessary; it will help to stamp out non-prescription drug taking and drug dealing. It is not true to say that drug dealers do not travel on trains. Just ask the people, community leaders, and members of Parliament who live in Cabramatta: they will tell you that they do. And do not tell me that drug dealers do not sell ecstasy at discos. That is a joke.
The Hon. Doug Moppett: Of course they do.
The Hon. Dr PETER WONG: Of course they do. Therefore, I support this bill fully.
The Hon. IAN COHEN [9.33 p.m.]: I look before me and think of the wondrous drug in which this group of people on the opposite side of the House is indulging. I think of just one drug: power. It is used by every member of the main parties. Power is a drug and we see people consumed by it. We see populism growing with power. Members in this place are losing contact with so many people in the community, which is why they are having such a hard time at the polls and why their votes are going down across the board. In an earlier speech today I said to the Government that alienating different sections of the community has a cumulative effect, which becomes evident in the polls. That process is just starting, but you are alienating so many people in the community in so many areas, including environmentalists across the board, by introducing draconian legislation and thinking that some sort of popular victory will be gained.
The Hon. Dr Brian Pezzutti: Is that a new hemp jacket?
The Hon. IAN COHEN: The Hon. Dr Brian Pezzutti, one of the major drug users in this Parliament, is asking me about this jacket. If he really must know, I bought this jacket when I was in Gunnedah during a Standing Committee on State Development inquiry. I bought this jacket from St Vinnie's.
Reverend the Hon. Fred Nile: You should leave it to the poor people.
The Hon. IAN COHEN: I paid them extra, but Reverend the Hon. Fred Nile is right: perhaps it was unfair. I occasionally shop like that in the western areas because I find many interesting articles of clothing that have been discarded. So many people in those areas are suffering hardship, but they will not solve their problems by ignoring them and, instead, indulging in a populist kick against the drug issue.
As a member of the committee inquiring into the establishment of the medically supervised injection room I travelled on the Kirketon Road bus one evening and met a number of people who quite openly were walking around with syringes in their top pockets filled with heroin ready for their shot later in the night. At least they were collecting clean syringes. But they will not get busted by sniffer dogs because their heroin is already in the syringe. This bill will not catch them.
I ask the Minister how many people are actually caught with small quantities of heroin? How many dogs are trained to pick up small quantities of heroin like that? This bill applies to cannabis, not heroin. It is just more of the constant targeting of the easy find—the soft drugs. The reactions of so many members of this Parliament do not mean that they take drugs or promote the taking of drugs. It is just part of the culture.
The Hon. Dr Brian Pezzutti: Yes you do.
The Hon. IAN COHEN: Excuse me, I do not promote the taking of drugs.
The Hon. Dr Brian Pezzutti: Yes you do.
The Hon. IAN COHEN: The Hon. Dr Brian Pezzutti promotes more drugs than I do.
The Hon. Dr Brian Pezzutti: That's just not true.
The Hon. IAN COHEN: If it is by example, the Hon. Dr Brian Pezzutti takes more drugs than I do.
The Hon. Dr Brian Pezzutti: Point of order: I take objection to what the honourable member said and I want him to retract it.
The ACTING-PRESIDENT: Order! The member has been asked to withdraw the statement.
The Hon. IAN COHEN: To the point of order: I witness the Hon. Dr Brian Pezzutti partaking. Therefore, as an example to many people, as a medical doctor and also as an addict to tobacco smoking, that is a very bad example, if we are to make a value judgment to this House on a continuing basis. I believe that my statement was reasonable under those circumstances.
The Hon. Dr Brian Pezzutti: I asked that it be withdrawn. I want it withdrawn.
The ACTING-PRESIDENT: Occupants of the chair have ruled that the member decides whether a matter is offensive, and if the member asks for a matter to be withdrawn because it is offensive, the matter should be withdrawn.
The Hon. Richard Jones: You can say anything then; otherwise it would have to be withdrawn.
The Hon. IAN COHEN: I am sorry, Mr Acting-President, I do not have the details, but by example the Hon. Dr Brian Pezzutti is promoting drugs.
The ACTING-PRESIDENT: Order! The Hon. Ian Cohen should not canvass my ruling.
The Hon. Dr Brian Pezzutti: Withdraw it and get on with it.
The Hon. IAN COHEN: I do not withdraw the statement. In actual fact, I feel very strongly about tobacco as a hard drug. By example, as a member of Parliament and as a medical doctor, I feel he is acting in an irresponsible manner by smoking tobacco.
The Hon. Greg Pearce: He is not promoting an illegal drug. This bill is about illegal drugs. Your clear indication is that he is promoting illegal drugs.
The Hon. IAN COHEN: The Hon. Dr Brian Pezzutti is partaking of a hard drug. I did not say an illegal drug, I said a hard drug. Tobacco is a drug of addiction.
The ACTING-PRESIDENT: Order! My understanding is that the Hon. Ian Cohen suggested that the Hon. Dr Brian Pezzutti was promoting drugs. The Hon. Dr Brian Pezzutti has asked that the statement, which he regards as offensive, be withdrawn.
The Hon. IAN COHEN: To the point of order—
The ACTING-PRESIDENT: The member must withdraw the statement. There is no point of order and there is no latitude.
The Hon. Richard Jones: What happens if he doesn't?
The ACTING-PRESIDENT: There is no alternative. The member must withdraw the statement.
The Hon. IAN COHEN: I withdraw the statement. I did not intend to imply that the honourable member was pushing a drug. The comments highlight in general the hypocrisy about the types of drugs that are allowed and the types of drugs that are vilified in this House. Many people participate in taking a variety of drugs. Society has had drugs with it since its inception. In many ways civilisation has grown on the back of various drugs, such as hallucinogens. Religious ceremonies are connected with drug taking. That does not mean it is a good thing in itself, it does not mean it is to be encouraged. I have not been encouraging the use of drugs in this House.
The Hon. Duncan Gay: This bill is not about you.
The Hon. IAN COHEN: I acknowledge the use of drugs in this society and that it is incumbent on the authorities to deal with such drug use in a way that shows intelligence, particularly when dealing with young people. I would also like to read from the article that the Hon. Peter Breen read from, "The Cold Nose of the Law", which says:
I saw a sniffer dog last night at Rushcutters Bay.
Sniffer dogs have been sniffing around citizens recently in some unlikely places. They have been used in King Street Newtown, Newtown and Redfern Railway Stations, Happy Valley Dance party, Oxford Street Darlinghurst (on the weekend before Mardi Gras) and on the NSW North Coast at Nimbin, Lismore and Byron Bay. Targeted communities are in uproar about this affront to their peaceful activities.
Now you may think that someone would have to be stupid to need a $90,000-trained dog to find Cannabis in Nimbin but the NSW Police have about 30 of these hounds with which they are searching people, cars and venues all over the place. In one instance a popular rock and roll venue had the doors sealed by police while officers and handlers took the dogs through searching the black clad cultural fringe.
… if these "searches" are legal, they run counter to the spirit of the law and the concept of a free democratic society when people are in fact being searched and treated as under suspicion simply for doing something legal like having a drink in a bar.
The Hon. Duncan Gay: You should have been here in Parliament.
The Hon. IAN COHEN: That would not be a bad idea. Many years ago I suggested in this House that we should have a breathalyser at the front doors of Parliament.
The Hon. Duncan Gay: You should have been in Parliament.
The Hon. IAN COHEN: I was on my way home. I have a right to go home at 1.30 or 2.00 in the morning after Parliament. I was in a taxi watching a sniffer dog as part of a booze bus set-up, and a number of police cars were lined up. That dog was running around without a lead, so I wonder whether the police had the dog under control. The article continues:
This is an important point—
There are other reasons why many people find this practice unacceptable. It targets recreational drug users. This may lead to drug users increasing their harm—
This is where the bill will make things difficult. People will take their drugs before they go out rather than going out with a pill in their pocket. Saying that does not mean I justify it or I agree with that type of drug usage, but it is a fact of life.
This may lead to drug users increasing their harm, by taking all their drugs at once soon after purchase and it may also increase the number of unsafely disposed syringes if users are afraid of being stopped and asked to turn out their pockets.
Reverend the Hon. Fred Nile: Have you tried to discourage it?
The Hon. IAN COHEN: Yes, I discourage it, unlike some other members. I try to discourage by example.
Reverend the Hon. Fred Nile: Have you tried to help them?
The Hon. IAN COHEN: I have tried to help. I have perhaps done more to help than many members of this House. One of the ways I help, rather than dictating to people how they should live their lives, is by example. I took home a young man from the north of New South Wales, a right-on-the-line heroin addict who was at death's door. He was a user and had resorted to crime in the inner city. I took him under my roof in the community where I live and I took him surfing. That guy now lives in the area of Byron Bay, surfs and has a reasonably healthy lifestyle. That is what I am talking about, not punishing people, not admonishing them at every turn, but actually taking them out and showing them something else. That is the sort of thing I do and that is the sort of thing I believe in. The article continues:
I also ask the Minister—and he may comment on this in his reply—that there be a six-monthly assessment of these operations, so that we look at the number of arrests, the cost and the police numbers used so that the whole process is more transparent. With sniffer dogs operating, people who would otherwise take their drugs at their destination will take their drugs before they leave home and drive under the influence of drugs. An article called "Why aggressive policing of simple drug possession needs to be kept on a tight leash", again from the Redfern Legal Centre, states:
People charged with simple possession offences make up the vast majority of people who are detected through sniffer dog squad activities. A criminal record is likely to have negative consequences for their employment, educational participation and family relations. It is unlikely that charging people with simple possession offences reduces the number of people who consume drugs or the amount of drugs consumed.
Are police biting off more than they can chew with increased use of sniffer dogs to target users for small scale possession offences? Timothy Moore of the Redfern Drug Policy Project examines the harms associated with the NSW Police services sniffer dogs campaign.
The use of sniffer dogs by the NSW police could be causing more problems than it solves.
… There is a real danger also that these policing tactics could have significant unintended negative consequences. These health and social consequences can result in costs to the community, harms to the drug users while not moving towards the goals of reducing the harm associated with illicit drugs.
The priority areas of policing should be set by the community. Police and National Drug strategies both claim that their major focus of policing under the drug laws is on traffickers and dealers. It is a widely held view that targeting users of small quantities of drugs does nothing to decrease the number of drug users or the amount of drugs consumed. It may however, have significant impact on the harms associated with the use of those drugs.
If injecting drug users are suspecting that they may be stopped and searched they are more likely to dispose of injecting equipment at the point of use rather than returning it to a needle exchange or chemist for safe disposal.
If people are fearful of carrying small quantities of drugs for their personal use they may feel impelled to use all drugs purchased at once, increasing the risk of death or hospitalisation through overdose.
The Hon. Dr Brian Pezzutti: Are you in favour of decriminalisation?
If people are going to a dance party and are to take a drug like ecstasy they will often reduce the risks of harm by asking among friends for a type of pill with which they have experience. They are likely to buy tablets from a recommended source in small numbers for a group of people. The presence of the threat of a dog search can lead to people taking all the drugs they have on their person to avoid detection, even if this amount is far above what they might normally consume.
With other avenues removed and under the threat of dog searches at dance parties people can be thrown into the situation where they can only purchase drugs at the point of consumption. This leaves people without the benefits of knowing the tablet type or the supplier and deprives them of reliable experience from friends about the affect, safety and prior experience with the drug.
For people who receive a criminal record for the small scale possession of prohibited substances it is unlikely to lead them to stop their drug use. People are more likely to stop their drug use when they grow out of it, get bored with it or don't enjoy it as much anymore. Most people who use drugs are not dependent and purchase their drugs wages earned legally.
For people who have a criminal record this can lead to decreased engagement with educational, travel and career aspirations, disrupt their family and personal relations and brand them with a record that may only further their engagement in the criminal environment.
With 78% of adults under 29 years of age having used cannabis enforcement of small scale possession laws criminalises more than half of a generation of young Australians.
The Hon. IAN COHEN: Yes, I am.
The Hon. Dr Brian Pezzutti: Is that the Greens policy?
The Hon. IAN COHEN: Yes, it is. The article further states:
Byron Bay is my home town, and Byron shire is one spot being targeted by police for the use of sniffer dogs. An article headed "Byron says, call the dogs off!" by Eve Sinton in the Byron Shire Echo of 3 April 2001 stated:
The considerable expense of these street level policing operations and the removal of peoples civil rights are unjustified in targeting possession offences. There is no link between the targeting of possession offences and reduced drug consumption or reduced crime. The harms associated with these operations to a majority of citizens makes them simply bad practise.
The Hon. Duncan Gay: It's a disgraceful publication.
Drug sniffer dogs and helicopter raids have triggered a major community backlash …
The Hon. IAN COHEN: It is one of the few publications that are free of big business interests and media controls, and it can give an opinion unfettered.
The Hon. Doug Moppett: And also free of any credibility.
The Hon. IAN COHEN: That is your opinion. The honourable member may laugh, but the Byron Shire Echo is also on the Internet and it gets global coverage. That is not bad for a local paper.
The Hon. Greg Pearce: That's what the Internet does, silly!
The Hon. IAN COHEN: Exactly! How many papers get that sort of coverage in local communities?
The Hon. Duncan Gay: How did the former publisher die?
The Hon. IAN COHEN: The former publisher, who was a good friend of mine, was irresponsibly sitting on the bonnet of his son's car while he was severely affected by red wine. That shows how important it is for us to judge all drugs, legal and illegal—
The Hon. Duncan Gay: Were other substances involved?
The Hon. IAN COHEN: No. Nick Shand was a red wine drinker. His death showed that, driving while under the influence of drugs, legal or illegal, or alcohol is extremely dangerous. He died prematurely and tragically. He was a wonderful asset to the community. Red wine and silliness on one occasion resulted in his death.
Reverend the Hon. Fred Nile: He fell off the bonnet?
The Hon. IAN COHEN: He fell off the bonnet and under the car his son was driving. An article headed "Call the dogs off" stated:
In some situations police have an opportunity simply to give a warning. Rusty Harris was arrested during the first sniffer dog sweep in Byron Bay in March. He said he would take his case all the way to the High Court. His case went to court and was adjourned. The expense of taking sniffer dogs to Byron Bay and walking the streets to catch someone is incredible. The police caught Rusty Harris, who has a long beard and dreadlocks literally down to the seat of his pants. Yet the police needed thousands of dollars of sniffer dog time and training to catch just one person. It is simply compounding the prejudices against people. Another article is headed "Massive drug haul in Byron Shire: In a three day op 18 police seize 70g of cannabis, charge five". I wonder how much that cost; perhaps the Minister could explain that to the House. In a three-day dog operation 18 police staying in hotels in Byron Bay—it must have been very enjoyable—seized 70 grams of cannabis and charged 5 people with possession. The article stated:
… there were instances of police abusing their powers by making people believe they had to go to the police station and submit to strip searches even though no formal arrest had been made.
The use of sniffer dogs is bad policy. It's a harm-inducing policy and contrary to the police's diversionary program.
The Hon. Duncan Gay: In Alice's restaurant.
In a three day operation last week police seized 70 grams of cannabis and small amounts of speed and ecstasy. Using sniffer dogs and street searches, 18 officers … scoured several north coast towns, including Byron Bay, Bangalow, Brunswick Heads, Ocean Shores, Murwillumbah and Lennox Head.
In all, 21 people were arrested. Four were charged with possession of a prohibited drug, one with self administering a drug. Sixteen cannabis caution notices were issued.
According to a press release from the NSW Police Media Unit, "a small number of protests was encountered in Byron Bay …"
What the unit failed to mention is that cannabis activist Robin Harrison followed the sniffer dog and its handler about Byron Bay, beating on a drum and singing ditties about drugs and community policing. The handler weaved in and out of streets and back lanes in an effort to avoid Mr Harrison …
The sniffer dog invasion of Mullumbimby streets was a traumatic affair for one local youth. Matt Le Beau, 17, was sitting on the seat outside the ANZ bank when a very friendly black labrador started sniffing him.
Matt was unaware that he was the centre of a drug operation until he found himself in the middle of a group of men not much older than himself in groovy looking streetwear. After they introduced themselves, he was ordered to take off his jacket and shirt, down to his undies and then a quick peek at his private parts.
They didn't find any drugs so they let him go. Meanwhile Matt was still shaking an hour later, said he had been humiliated and felt paranoid that everyone in his town thought he had done something wrong. He recently left Mullumbimby High School to take up a chef apprenticeship at New Brighton and has lived in the area all his life …
In Lennox Head several police barred the doors of the town's only pub while three others went in with a golden labrador called Thor who went about the business of sniffing crutches. Thor didn't find anything but apparently upset several patrons who were eating in Ruby's restaurant upstairs as the venue is the social centre of the small town.
The Hon. IAN COHEN: This is Lennox Head. Perhaps the Deputy Leader of the Opposition should visit Lennox Head. It is hardly the centre of drug iniquity on the North Coast. The article further stated:
The Hon. Dr Brian Pezzutti: That's not true. Who did that report?
The massive haul worked out at 3.3 grams of cannabis seized per officer per day … according to police pricing methods.
The Hon. IAN COHEN: The Byron Shire Echo.
The Hon. Greg Pearce: Did it put that on the Internet?
The Hon. IAN COHEN: It certainly did, and you can sue the newspaper if you think the article is inaccurate.
The Hon. Duncan Gay: The Byron Shire Echo is always wrong.
The Hon. IAN COHEN: If members opposite want to interject, they should say something with a little class. Their interjections are denigrating the House. Interjections should have a degree of quality.
The Hon. Doug Moppett: Interjections tend to reflect the quality of the speech.
The Hon. IAN COHEN: I disagree with the Hon. Doug Moppett. It is the quality of the legislation that is degrading the level of debate, interjections and the whole ambience of the House. An Australian Associated Press [AAP] report quoted Mr Cameron Murphy, President of the New South Wales Council for Civil Liberties, as follows:
Finally, to quote from the New South Wales Law Society:
(Sniffer dogs) could be a useful tool, the problem is it's being misdirected where the primary focus of these dogs has been against drug users.
What the Government needs to do is focus their efforts on the Mr Bigs of the drug business, people at the top of the drug pyramid, instead of users in the way they have.
High profile drugs raids using sniffer dogs, such as those conducted recently on five Sydney nightclubs, were a waste of time because they generated few results.
Detection dogs—whether trained to find missing persons or to detect drugs, explosives or other dangerous articles—are a very valuable and highly adjunct to law enforcement investigations.
However, dogs are also used as an intimidatory agent and to assist police in detaining a person so that the dog has the opportunity to smell him or her. People react in varying ways to the actions of the dogs, including embarrassment, distress and fear. While the Committees do not have access to data about the incidence of false positive indications from dogs, anecdotally these do occur. A false positive alert by a dog would add to the distress of the situation and exacerbate the infringement of the person's right to privacy.
Police do not have (and should not have)power to randomly detain and search a person in the absence of a reasonable suspicion. It is the view of the Law Society's Criminal Law and Children's Legal Issues Committees that any police activity which involves:
- police using dogs to detain or direct a person in any way, and/or
- the dog coming close to (within 1 metre) or touching a person,
constitutes a search and should not be permitted without reasonable suspicion.
Another AAP report quoted Mr Carr as saying that sniffer dogs had been extremely effective, especially in keeping drugs out of prisons. That is agreed. Do the job properly in the right areas, but do not harass people in the streets with tiny amounts of various drugs that are widespread throughout society. Deal with it in a positive way and leave the sniffer dogs to work in customs and areas where they are hunting down the big drug dealers in society. I strongly oppose this bill, as did my colleague Ms Lee Rhiannon.
The Hon. GREG PEARCE [10.02 p.m.]: Yesterday the Sydney Morning Herald editorial, under the heading "Advice for Mr Costa", stated in part:
The question is whether, in playing the political game, Mr Costa will settle for the shadow if he cannot have the substance. Will he be satisfied as long as he and the Carr Government are able to survive the storms of public controversy over law and order that inevitably envelop the police portfolio?
Although the Opposition supports the bill, the manner of its introduction proves the lie in the Minister's proclamations that he is open to listening to and debating the complex and sensitive issues of crime and drugs. He has already fallen into the Carr Government formula of media spin and arrogance. I remind the House of the Government's appalling record. I remind the House of the Premier's claim in relation to the Cabramatta project, which was launched with great fanfare in 1997. Early in 2000 the Premier trumpeted the success of his Cabramatta project and announced that there was significantly less crime in Cabramatta and reduced fear of crime in the central business district, and that he had made the community feel safer and more secure. As Sergeant Tim Priest, whom the Minister is not enamoured of, told the parliamentary inquiry into Cabramatta policing, Cabramatta was burning up all around the local area command in respect of drug supply, gang warfare, money-laundering, fraud and an out-of-control drug—
The Hon. Amanda Fazio: Point of order: The honourable member is not speaking to the bill. This is just a rehash of one of his usual lectures about why he would make a better police Minister that anyone in the world. As the Premier said, he should go back to the traffic court.
The ACTING-PRESIDENT: Order! There is no point of order. Honourable members should confine their remarks to the general thrust of the bill.
The Hon. GREG PEARCE: In his second reading speech the Minister claimed:
This bill is the result of in-depth development by the Criminal Law Review Division of the Attorney General's Department, in consultation with the Police Service.
The Hon. Michael Costa: What rubbish!
The Hon. GREG PEARCE: That is what he said.
The Hon. Michael Costa: What rubbish!
The Hon. GREG PEARCE: That might be literally true, but it is deliberately misleading. As every member of this House knows, as a number of other speakers have alluded to, and as commentators and members of the public know, recent legal decisions—in particular the case referred to by a number of speakers to the bill, before Deputy Chief Magistrate Jerram—have cast doubt on the legality of using police sniffer dogs to locate prohibited drugs.
The Hon. Michael Costa: He used to appear in the traffic court on parking infringement notices.
The Hon. GREG PEARCE: The Minister for Police is now displaying his ignorance, which is consistent with the Premier's ignorance, of the legal system in this State. That is a great pity. The police Minister does not even know that we do not have a traffic court in New South Wales. It is embarrassing to have a Premier who is a klutz when it comes to economic matters, a Premier who has no idea about legal issues. But the Minister for Police should at least know about the State's legal system. The fact that the Premier and the police Minister do not know that in this State we do not have a traffic court is absolutely extraordinary.
I commend clause 7 to the Minister. I am sure that if he has an opportunity he will read it one day. Clause 7 outlines the places where dogs may be used to carry out general drug detection. They include public and private premises, including sporting and entertainment venues, as well as bus and train stations and other places. Clearly, these provisions raised concerns to ensure that people's rights of movement, their ability to come and go, and rights of assembly are safeguarded. The Minister claims that the appropriate balance is achieved by the provisions of clause 13, which relates to monitoring by the Ombudsman.
I hope we can generally rely on the good sense of the police handlers of these dogs, but I am not at all convinced that we can rely on the Minister to monitor the exercise of these powers. As we know, the Minister will not be here in two years. He has already signalled his escape from the police portfolio before the people of New South Wales have a chance to pass judgment on him. Given his performance in the last month it comes as no surprise that he wants a way out. His experience and arrogance have already seen him discredited.
The Hon. Richard Jones: Point of order: I cannot hear a word that the honourable member is saying because the Minister is making too much noise.
The ACTING-PRESIDENT: Order! There is no point of order, but I agree that there is too much noise in the Chamber.
The Hon. GREG PEARCE: As I was saying, given the performance of the Minister in the last month or so it is no surprise that he wants a way out. His inexperience and arrogance have already seen him discredited. Today he finally woke up to the realities of police numbers. His commitments and claims as to police numbers have been shown to be ill informed or, worse, plainly ignorant. Last night in debate on the Police Service Amendment (Promotions and Integrity) Bill the penny dropped. In his speech in reply he retreated from his proclamation that from January 2002 police promotions would take only three weeks instead of the current eight months. He said that he had followed Police Service advice. So there he was again, backtracking from his promise—
The Hon. Duncan Gay: Point of order: The Hon. Greg Pearce is trying to make a speech and the very new Minister is doing his best to disrupt. I ask you to draw the Minister to order.
The ACTING-PRESIDENT: Order! There is no point of order.
The Hon. Michael Costa: Point of order: I ask that you ensure that the Hon. Greg Pearce directs his contribution to the bill.
The ACTING-PRESIDENT: Order! The member will address the bill.
The Hon. GREG PEARCE: I am quite happily addressing the bill. As I recall, a moment ago I was speaking about clause 13 and the Minister's assertion that the rights of people to come and go and to assemble would be addressed by the Ombudsman's monitoring and the Minister's review of the Ombudsman's reports, which were due within two years. As I drew out that proposition—that part of the bill before the House, which the Minister referred to in his second reading speech—I made the point that the Minister would not be here in two years when the Ombudsman delivers his first report and therefore the Minister would not be able to monitor that report. I then pointed out that even if the Minister were here, it would not be much use his reviewing the report. He has already been discredited because of his inexperience, arrogance, lack of information and ignorance.
The Hon. Jan Burnswoods: Point of order: A very short time ago you asked the Hon. Greg Pearce for the umpteenth time to relate his remarks to the bill. I beg you, please, to ask him again to keep to the point.
The ACTING-PRESIDENT: Order! I am becoming less and less tolerant. I ask members to confine their remarks to the leave of the bill and not to make frivolous points of order. When the Hon. Greg Pearce concludes his remarks I will make a further ruling on points of order.
The Hon. GREG PEARCE: Given the time, Mr Acting-President, I will not repeat what is already in Hansard and my quite clear explanation as to how my remarks flowed from the provisions of the bill and the Minister's second reading speech. I turn briefly to clause 9, which contains provisions relating to general drug detection, including provisions requiring police dog handlers to keep control of the dogs and prevent their touching people. This is another difficult area of implementation. The dogs must be kept under control. At least the Minister has some experience at keeping the leash on: witness his appalling stunt in Kings Cross with Frank Sartor last week.
The Minister's cross-media stunt was an insult to the hard-working men and women of the Police Service facing the everyday tensions of dealing with the problems in the Cross, including the drug problems. The police were belittled by the Minister's preposterous claim that he would clean up the Cross and sweep away the problems. The bill does make a minor move in the right direction. It was put forward by the Opposition and on that basis we support it. But I do say to the Minister that he needs to deal with the other real problems facing this State: the lack of police resources, the appalling mismanagement of the police at the highest level and the arrogant, media-driven response of this Government.
The ACTING-PRESIDENT: Order! Earlier a point of order was taken relating to the use of offensive words. I draw the attention of honourable members to a ruling of President Johnson given on 31 March 1987. I will ask the Clerk to circulate that ruling to members so that they are aware of what is required of them in this regard. I propose to adopt that ruling, as other occupants of the chair have.
The Hon. Duncan Gay: It is a very incisive ruling.
The ACTING-PRESIDENT: Thank you. It is a good ruling.
Reverend the Hon. FRED NILE [10.16 p.m.]: The Christian Democratic Party is pleased to support the Police Powers (Drug Detection Dogs) Bill. The bill will create a system to regulate the use of drug detection dogs for specific situations and locations. We have received a number of submissions. The Law Society was critical of the bill but a prominent paragraph of its submission stated:
Detection dogs—whether trained to find missing persons or to detect drugs, explosives or other dangerous articles—are a very valuable and highly successful adjunct to law enforcement investigations.
That statement is correct, and that is why the Christian Democratic Party supports the bill. As I have listened to members attack the bill and cite examples of drug use and other matters it has only confirmed my support for the bill and the need for police to use drug detection dogs. The Hon. Peter Breen made a distinction between the use of drug detection dogs and random breath testing for alcohol. He said that random breath testing saves lives but using drug detection dogs does not.
A drug user could be under the influence of drugs and walking away from a rave party. Police stopping that drug user with a drug detection dog may prevent an accident occurring after that person got into a car and drove off into the night. In many cases it has been shown that illegal drugs have been used by the drivers of vehicles involved in accidents. Critics of the bill have stated that drug detection dogs may act as a deterrent. This proves the point. Obviously, the dogs will detect people with drugs, but many people will not carry drugs for fear of detection by the dogs and, hopefully, those people will not use drugs. So use of the dogs would have that added value.
The Hon. Peter Breen: One does not follow from the other.
Reverend the Hon. FRED NILE: It does follow. You have given examples of it. There is quite a fear now in Byron Bay and other areas. People seem to regard Byron Bay and Nimbin as drug sanctuaries—no-go areas for the police. I object to any area being treated as outside the law. People in other areas obey the law but apparently in Byron Bay people can break the law. That is not right and that is why I am pleased that the police are concentrating on these areas and showing the people of Byron Bay, Nimbin and other places that all people in this State must obey the same laws and there is no special concession for any part of the State. There has to be consistency.
The Hon. Richard Jones: Forty per cent of people use cannabis. Forty per cent of people break the law.
Reverend the Hon. FRED NILE: Much of the reason for that lies with the policies of the Australian Democrats, the Greens, the Hon. Richard Jones and others, who have been advocating and supporting the use of drugs.
The Hon. Richard Jones: Legalisation, yes.
Reverend the Hon. FRED NILE: That is why a lot of young people think that they can use marijuana.
The Hon. Richard Jones: They do anyway.
Reverend the Hon. FRED NILE: I believe that we should be deterring them from using it because it is a harmful drug, as the Hon. Dr Peter Wong indicated.
The Hon. Richard Jones: You should tell them the truth about it.
Reverend the Hon. FRED NILE: We do not want people to be damaged by the use of those drugs, and I cite schizophrenia as an example. I am opposed to illegal drugs. The Hon. Richard Jones knows that. I am consistent and, in fact, I am the only consistent person in this Chamber, whereas some of the other parties that are pro illegal drugs are opposed to legal drugs. Honourable members should be concerned about the impact of both legal and illegal drugs. It seems to me that in this debate the dogs are the enemy. Honourable members should be reminded of the great value of these trained dogs. Recently I was at the airport and I saw the dogs being used. They are small dogs almost the size of a poodle and they were searching passengers' luggage in a place where overseas visitors' luggage is collected.
The Hon. Duncan Gay: It would have been a beagle.
Reverend the Hon. FRED NILE: Yes, it was a beagle. It was looking for objects that should be quarantined, but I presume it would also pick up other items. Some members of the public were a little upset. The dog was sniffing a bag and the officer then had to ask the person for permission to look in the bag to see what was in there. That person was obviously embarrassed, but that episode demonstrates the need for sniffer dogs. They have to be used to identify illegal products, and by "illegal products" I mean those that should be subject to quarantine or prohibition. Honourable members also know that most sniffer dogs have been specially trained to identify explosives, which is another important role.
I am sure that honourable members would appreciate the importance of their training and skill. I understand that sniffer dogs are being used to search for explosives at airports at the point where the luggage is being loaded onto the aircraft. That is also an important role. Dogs have also been used to find missing children and in other important detection work. I notice that the standard operating procedures for the drug detection unit are available through the Internet. Under the heading of "Person Screening", the instructions are set out. I will read them into the record to allay some of the fears that have been expressed by the Greens, the Australian Democrats and others. The instructions state:
The purpose of the Drug Detection dog is to screen the free air space, for the scent of an illegal substance and to detect the origin of the scent.
I should mention that these are the instructions that are given to the police who are handling the drug detection work. The instructions continue:
The dogs will be permitted to walk in public areas and sample of free air space, during this time the dog will avoid contact with persons.
When a dog indicates a positive detection on a person, the handler will inform them by saying "I am Constable … From the New South Wales Dog Unit this is a drug detection dog who has indicated the scent of an illegal substance emitting from you. I want you understand that you do not have to say or do anything unless you wish, but anything you say or do may later be given in evidence, do you understand that?"
The next stage in the standard operating procedure is that the handler informs support police, who then use provisions of the Crimes Act or the Drug Misuse and Trafficking Act to continue with investigations. The instructions continue:
The handler is then to remove the dog from the scene as soon as practicable.
A case has been reported in that weird paper the Echo of dog detection units stopping a person in the main street outside the post office and stripping that person. I question the truth of that report. I believe it is misleading and that it is only trying to create a reaction against the legislation before the House. We are not living in a society that has a Gestapo, which was the case in Germany during World War II, but the police will enforce the provisions of the bill lawfully. If they do not, they will be in a great deal of trouble.
The main reason honourable members have to deal with this legislation tonight is the decision of Deputy Chief Magistrate Mary Jerram, who found that a search by a drug detection dog was unlawful. Apparently it was claimed that the dog touched the person who was being searched. That is what is stated in the briefing notes, but I notice that the court report of the case shows that it seems to be the view of the Deputy Chief Magistrate that the search was an attack on civil liberties. The following report appeared in the Sydney Morning Herald on 22 November:
She ruled the search unlawful and said, "The contravention is undoubtedly, in my view, contrary to the right of a person recognised by the International Covenant on Civil and Political Rights." She cited Article 17. I accept that she is the Deputy Chief Magistrate, but in my view—and I am not a lawyer—she was wrong. If human rights documents are taken literally—and I emphasise that—a person could hardly do anything. Moreover, a literal interpretation of the articles would make it difficult for police to carry out their duties. Everyone seemed to be shocked that the Deputy Chief Magistrate went down that path in her decision. She seemed to have strong views about the use of drug detection dogs. It was also reported in the Sydney Morning Herald on 23 November that, according to a report from the Police Service, only four cases of people being detected in possession of drugs have resulted in pleas of not guilty since drug detection dogs were introduced in 1999. All but four of the offenders accepted that they had been found out and pleaded guilty.
Deputy chief magistrate Mary Jerram found the search was a breach of international civil liberties.
She rebuked the police for arguing that while she had deemed the search unlawful, she still had the discretion to record a conviction because a small quantity of cannabis and amphetamines were found ...
On 21 October, Ms Jerram ruled the search was unlawful because the dog search was conducted without reasonable suspicion. After her ruling, police said that they intended to appeal to the Supreme Court.
As a result of the Deputy Chief Magistrate's decision, honourable members are now dealing with this bill. I recognise that the Opposition announced plans to introduce a private member's bill along the same lines, and that is why I am hopeful that this bill will have the support of the Opposition. The bill will provide clarity for police operations involving drug detection dogs, ensure that the appropriate safeguards are in place. It will ensure that notice is given to citizens that they may be subject to drug searches because of the presence of sniffer dogs in certain locations. The bill will permit police to use the dogs in licensed premises. It is important to make clear that the legislation provides for two categories of premises. There will be general drug detection in authorised places, which will not require a warrant, and general drug detection in other places, which will require a search warrant. Clause 7 (1) of the bill provides:
(1) A police officer may, without a warrant, use a dog to carry out general drug detection in relation to the following persons:
(a) persons at, or seeking to enter or leave, any part of premises being used for the consumption of liquor that is sold at the premises (other than any part of premises being used primarily as a restaurant or other dining place),
(b) persons at, or seeking to enter or leave, a public place at which is sporting event, concert or other artistic performance, dance party, parade or other entertainment is being held,
(c) persons on, or seeking to enter or leave, a public passenger vehicle that is travelling on a route described by the regulations, or a station, platform or stopping place on any such route.
A public passenger vehicle is defined as a train, light rail vehicle or bus. For the benefit of those who are concerned about Byron Bay, it seems that such areas are covered under clause 8, which is headed "General drug detection with dogs by warrant" and relates to public places. The clause states:
(1) A police officer may use a dog to carry out general drug detection if authorised to do so by a warrant under this section.
(2) A police officer who has reasonable grounds for believing that the persons at any public place may include persons committing drug offences may apply to unauthorised justice for a warrant under this section.
(3) An authorised justice to whom such an application is made may, if satisfied that there reasonable grounds for doing so, issue a warrant authorising any police officer to use a dog to carry out general drug detection in the public place during the period or periods specified in a warrant.
Those provisions indicate that safeguards are provided in the legislation, which will tighten up the use of drug detection dogs in this State. Previously there may have been more indiscriminate use of drug detection dogs, but now there are two clear categories. The second category requires a warrant; and that requires satisfying an authorised justice that a warrant should be issued. The bill clearly outlines how and where drug detection dogs will be used, and it provides safeguards for people who may be fearful of an invasion of their civil liberties. Those safeguards are the reason the Christian Democratic Party supports the legislation.
The Hon. ALAN CORBETT [10.30 p.m.]: I shall speak only briefly on the Police Powers (Drug Detection Dogs) Bill. It may be of interest to honourable members to know that currently there are 30 police dogs in New South Wales. Of those, 18 are used for purposes other than drug detection, which leaves 12 dogs that can be used for drug detection. We should turn our minds to whether the Minister for Police intends to increase the number of drug detection dogs once this bill becomes law. If so, perhaps that matter should be the subject of an inquiry during next year's budget session. If that limited number of dogs is to be effective they will need to be targeted in specific areas. It would be interesting to know which areas the Minister has in mind. That will be revealed in the regulations.
I hope that drug detection dogs will be used fairly across the State. Obviously high crime areas or suspected crime areas will receive priority, but I would be interested to know whether the north shore area is prescribed in the regulations. I will ask questions of the Minister and comment further in Committee. No-one is taking notes on behalf of the Minister while we are debating this bill. I assume that is a sign of his arrogance.
The Hon. Dr BRIAN PEZZUTTI [10.31 p.m.]: This simple bill overcomes a problem that was identified by a magistrate and will allow the continuing use of new technology by the New South Wales Police Service. Our friends the Federal police and customs officers have effectively used that technology for detecting many drugs, not only cannabis, and other substances. I am concerned about what is behind the rhetoric of the Hon. Lee Rhiannon. I am disappointed in my colleague the Hon. Ian Cohen, whom I usually trust. Yesterday in the Great Hall of the University of Sydney, the Treasurer gave a speech. I will paraphrase what he said and will add one word to his speech. He said that he suspects that the permissive drug cause is actually little more than a substitute cause—a substitute cause that fills a vacuum, a psychological need to feel self-righteous. It fills a vacuum, especially for those who in earlier times would have been attracted to one of the quite numerous variants of Marxism-Leninism.
It is important that a search that follows detection by a dog is carried out correctly and in accordance with the law. The first report I saw about the use of drug detection dogs was in the Northern Star, a newspaper of repute. The newspaper reported that a person was sitting in the street, and a dog came up and sat down beside him. When he bent down to pat the dog, he was confronted by two people who identified themselves as police officers and asked him to accompany them to Byron Bay police station, where he was searched. That is the first indication I had that the New South Wales police had caught up with Kerry Chikarovski's view, which she had expressed some time before, about the use of sniffer dogs. The Federal police and Federal customs agents had been using sniffer dogs for a long time. I support the bill.
The Hon. JOHN RYAN [10.34 p.m.]: A former President of the United States of America, Lyndon Johnson, said:
You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs that it would do and the harms that it would cause if improperly administered.
The one concern I have about the debate and the manner in which the Minister has conducted himself in the introduction of this legislation is not the bill itself. The bill may well do a great deal of good work in protecting the community from the illegal drug trade. My concern is that if this legislation is improperly administered by the Minister and his department, it could do a great deal of harm. In relation to the harm the bill might do, I look at the attitude of the Minister towards it. One concern I have is that the Minister said, when discussing this bill after its introduction, that it has nothing to do with civil liberties. The bill has a great deal to do with civil liberties, and it is important for us to properly scrutinise the rights of individuals.
If we propose to interfere with the rights of individuals we should scrutinise those rights and make sure that the bill is properly administered and monitored. I ask the Minister to assure the House that he will properly monitor the bill to ensure that the rights and liberties of individuals are properly protected. The bill will do a lot of good if it is properly administered. If it is not, it could do a great deal of harm. I do not have to give chapter and verse of the harm it might do. It is all in the attitude, and one would hope that the Minister will adopt the correct attitude and demonstrate an understanding that he is doing something very grave. I would appreciate it if occasionally he would show some appreciation for the gravity of the matters with which he is dealing.
The Hon. MICHAEL COSTA (Minister for Police) [10.37 p.m.], in reply: I thank all honourable members for their contributions to this important debate. I also thank the critics, some of whom made valuable contributions. Unfortunately, I do not have the same regard for the juvenile comments of the Hon. Greg Pearce. In his pathetic attempts to appear learned he often becomes a windbag; he displays his insecurities by attacking people rather than dealing with issues of substance. It is unfortunate that he chose to go down that path.
The bill was drafted to recognise the need for police to use drug detection dogs to assist in identifying persons supplying prohibited drugs in certain areas. It is primarily aimed at detecting and prosecuting persons committing offences relating to the supply of prohibited drugs or plants. The bill will place beyond doubt the capacity of police to use drug detection dogs, whilst at the same time ensuring that appropriate safeguards are in place to protect the rights of citizens. It authorises where general drug detection power can be exercised and the manner in which it is to be carried out. New South Wales police will have the power to undertake general drug detection in authorised places and general drug detection with dogs by warrant in places as specified for a limited period pursuant to the warrant. However, the warrant must be issued by an authorised justice, adding further protection for the community. General drug detection will also operate on transport lines, as prescribed in the regulation-making power under the bill.
This legislation is consistent with the Government's approach to harm minimisation for low-level drug users. Obviously, some of those users will be detected within police operations. However, the Government has in place effective and appropriate schemes for these people to be diverted to, should the need arise. They may seek assistance to stop using drugs, and that is one of the clear benefits of the legislation. The New South Wales Government has led the way in the treatment of persons who use these harmful substances, whilst cracking down hard on the suppliers of them. The use of drug detection dogs is currently subject to strict police protocols. Expert handlers use these animals to identify prohibited drugs, and this will remain the case. In conjunction with the principles of the bill, we will have the best-equipped drug detection team.
The bill provides that all reasonable precautions should be taken by a police officer conducting a general drug search to stop the dog from touching a person. However, if, despite the best efforts of the police officer handling the dog, an inadvertent or incidental touching takes place, the touching by the dog will not constitute an unlawful search by the police officer. Police appreciate that the safety of all persons involved, and of the dog, is best served if the dog cannot touch the suspect at all and intentional touching is not authorised by the bill. The legislation provides specific criteria guiding police powers concerning drug detection dogs. It also provides safeguards that recognise freedom of movement by our law-abiding citizens. As a society we value our freedom of movement as much as we value the freedom to be free of illicit drugs. The appropriate balance is achieved in the bill.
The Hon. Greg Pearce: Point of order: The Minister is repeating his second reading speech. It is not appropriate for the Minister, in his reply, to repeat verbatim his second reading speech, which has been incorporated in Hansard.
The ACTING-PRESIDENT: Order! There is no point of order. The Minister may continue.
The Hon. MICHAEL COSTA: If the Hon. Greg Pearce listened instead of interjecting, he might learn something. He is simply an insecure windbag. The New South Wales Ombudsman will monitor the legislation during its first two years of operation and report as soon as possible at the end of the two years. Police will assist in the review process by providing statistical data on the use of the dogs. This bill is balanced, and it is strategic in terms of attacking the root cause of drugs in our society. Couriers and dealers in prime locations where drug activity takes place outside private homes are specifically targeted. They are on notice. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Mr M. I. Jones
Question resolved in the affirmative.
Mr R. S. L. Jones
Motion agreed to.
Bill read a second time.
Parts 1 and 2
Ms LEE RHIANNON [10.52 p.m.], by leave: I move Greens amendments Nos 1 and 2 in globo:
No. 1 Page 2, clause 3, line 12. Omit "possession, control or".
No. 2 Page 5. Insert after line 10:
9 Evidence obtained by drug detection dogs inadmissible in respect of possession offences
(1) Evidence of any prohibited drugs or plants that are found in the possession or control of a person as a result of general drug detection using a dog (whether or not under the authority of a warrant) is inadmissible in any proceedings against the person for an offence of being in possession or control of the drugs or plants.
2) Subsection (1) does not apply to proceedings for a drug offence within the meaning of this Act (that is, proceedings for the offence of supplying prohibited drugs or plants).
Greens amendments Nos 1 and 2 relate to the offence of possession or control of a prohibited plant or drug. The intent is to effectively remove these offences from the bill so that a person could not be prosecuted for an offence of possession or control as a result of general drug detection using a dog. These amendments will not affect prosecutions in relation to the offence of supply, and I wish to emphasise that. By agreeing to the amendments, the Government—and the Opposition is tail guarding the Government—will demonstrate that it is after the big suppliers and drug pushers, not the small users, who will be the only ones being picked up by the bill as it is presently constructed.
Sniffer dogs are expensive assets of the New South Wales Police Service. They require careful training from a young age by a specialised and dedicated handler. I understand that the total cost of putting a dog through all aspects of its training is tens of thousands of dollars—$90,000 has been mentioned. Consequently, the New South Wales Police Service does not have many trained dogs; indeed, it has only a handful. The Greens believe that it is grossly inappropriate to utilise these scarce and expensive assets for the purpose of arresting and charging individuals with offences of possession or control. It is madness for the Government to introduce legislation to use sniffer dogs in this way, especially when its favourite word is "efficiency". It would be much better to use them in a more cost-effective way. A person who is found with a small quantity of drugs for personal use is hardly a serious criminal or someone who poses a threat to others, and it is unnecessary to have all the dogs on the streets for such a trivial offence.
Tens of thousands of people in New South Wales are guilty of committing this trivial offence every day and with the dogs on the street those numbers will not be reduced. It is important that we look at the impact that this bill will have on the lives of those who may be prosecuted. Many people who otherwise are perfectly law-abiding citizens may needlessly be brought into contact with the criminal justice system and even if they do not end up in gaol it will have a serious impact on them, particularly when they have done nothing wrong except take a recreational drug on a night out. They may suddenly find themselves caught up in some of the worst aspects of the judicial system in this State. Their lives will be disrupted, their careers destroyed and their prospects diminished. In addition, the trauma can be quite considerable.
From the Government's perspective, this provision will unnecessarily clog the court system and cause delays and cost blow-outs. It is detrimental to many more people than those immediately associated with the drug taker. The individual is damaged and the Government loses—or perhaps I should say that the taxpayer loses because in this case the Government clearly thinks it is on a winner. People should not be charged with such a trivial offence that hurts no other person and is so widespread and deeply rooted in popular culture and society in general. It makes no sense at any time and it certainly makes no sense to employ expensive sniffer dogs just to catch a few unfortunate people in this net. I commend Greens amendments Nos 1 and 2 to the Committee. I emphasise that the amendments do not target those who supply drugs. By agreeing to the amendments the Government will show that its real intent is to target the big drug pushers and that it is not seeking just to grab a quick headline.
The Hon. MICHAEL COSTA (Minister for Police) [10.57 p.m.]: The Government does not support the Greens amendments.
The Hon. RICHARD JONES [10.57 p.m.]: I support the Greens amendments, which will essentially make the Government honest. If it is serious about stopping the drug trade and getting dealers off the street it will support these amendments. Right now the Government is conducting a war on young people, which they are aware of and strongly reject. That is why they have voted for the Greens and other smaller parties. If the Government is really honest about what it is trying to achieve it will agree to the amendments and only concentrate on the dealers, particularly heroin dealers, who are causing the worst misery in our society, and not keep on attacking young people who use cannabis.
The Hon. JOHN JOBLING [10.58 p.m.]: The Opposition notes that Greens amendment No. 1 seeks to remove from the definition of "drug offence" the words "possession, control or". The Opposition is not in a position to agree with that and opposes the amendment. Greens amendment No. 2 suggests that evidence obtained by drug detection dogs should be inadmissible in respect of the offence of possession. Again, the Opposition cannot agree to that amendment.
Ms LEE RHIANNON: I do not move Greens amendment No. 3. My understanding is that as clause 7 has not been passed, the amendment is redundant.
The TEMPORARY CHAIRMAN (The Hon. John Hatzistergos): Order! The Committee is dealing only with clause 3 at the moment. It is not dealing with clause 7. But I note Ms Lee Rhiannon does not propose to move Greens amendment No. 3.
The Hon. ALAN CORBETT [11.00 p.m.]: I seek clarification from the Minister regarding clause 3, Definitions, "public place". As I read the provision, schools are the only places excluded from the definition of "public place". Does this mean that in churches, synagogues, mosques, war memorials and so on a police officer can still, without a warrant, use a dog to carry out general drug detection?
The Hon. MICHAEL COSTA (Minister for Police) [11.01 p.m.]: My understanding is, no.
The Hon. ALAN CORBETT [11.01 p.m.]: I have a further question for the Minister. I assume that the Minister, when referring to a school, refers to school grounds. Does that mean the school grounds during school hours and after school hours? That is, does the provision apply to school grounds 24 hours a day, or just for a limited period of the day?
The Hon. MICHAEL COSTA (Minister for Police) [11.01 p.m.]: My understanding of that would be during the operation of the school.
The Hon. ALAN CORBETT [11.02 p.m.]: But it does not say that. It just says "not include a school". The reason I ask the Minister is that some form of entertainment, parade or performance could be conducted at a school, whether in school hours or out of school hours. A group might have permission to be on school grounds after school hours. Drug users standing outside the school, on seeing a police officer approaching with a dog, would simply have to walk onto the school grounds to become part of that entertainment, and therefore not liable to search. I ask the Minister to clarify that—otherwise, this could be a very interesting loophole.
The Hon. RICHARD JONES [11.02 p.m.]: A school is a school, not just during school hours—otherwise the legislation would say so.
The Hon. MICHAEL COSTA (Minister for Police) [11.03 p.m.]: The advice that I have just been given is that a school is excluded, but if a person is apprehended on school grounds it would depend on the circumstances involved. So, if a school were not operational, or there were not any other activities, and somebody ran onto the grounds, the action that would be taken would depend on the circumstances. I would expect that the police would be within their rights to use dogs in that circumstance.
The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [11.03 p.m.]: Can I remind this very new Minister that comments made by a Minister of the Crown during the Committee stage of a bill are used for interpretation purposes.
The Hon. MICHAEL COSTA (Minister for Police) [11.03 p.m.]: I thank the honourable member for his advice, but I am well aware that that is the situation.
The Hon. RICHARD JONES [11.03 p.m.]: I move my amendment No. 1:
No. 1 Page 3, clause 4. Insert after line 13:
(4) Despite subsection (3), if:
(a) a dog is used to search a person under this Act for the purpose of detecting a drug offence, and
(b) the search fails to detect any prohibited drugs or plants in the possession or control of the person,
the State is liable to compensate the person for any loss or damage incurred by the person as a consequence of the search.
There have been numerous cases, published in the media and anecdotally, of people being stopped on the way to work. A Qantas flight attendant stopped on the way to work and strip searched was found to have no illegal substances on her person.
The Hon. Doug Moppett: This is only an anecdote.
The Hon. RICHARD JONES: This case was published in the newspapers. Anecdote means not published, as the honourable member well knows because he knows his English. But other cases have been reported in the media. A young man who was searched in Mullumbimby and a young person whom I met on the street outside Parliament, who also was searched, were found to have no illegal substance on their person. There are many cases of people being searched and having their jobs put in jeopardy as a result. A good case could be made for the State to pay compensation to a person who incurs actual loss or damage as a result of a search that reveals nothing—and there have been many of them. No doubt some of those cases will end up in very much higher jurisdictions than the Local Court.
The Hon. MICHAEL COSTA (Minister for Police) [11.05 p.m.]: The Government cannot support the amendment.
The Hon. ALAN CORBETT [11.06 p.m.]: I ask the Minister a question. The key words in clause 5 are "the officer reasonably suspects" that a person is committing a drug offence. Is there in existence a protocol that tells a police officer what is reasonable in these circumstances? If so, where can the public locate that protocol?
The Hon. MICHAEL COSTA (Minister for Police) [11.07 p.m.]: There are a set of protocols that the police have to apply when using detection dogs. I have already given a commitment that we will review those protocols if there are any difficulties, in the same timeframe as the general review of the Act.
The Hon. RICHARD JONES [11.08 p.m.]: I move my amendment No. 2:
No. 2 Page 4, clause 7, lines 21-26. Omit all words on those lines.
I move the amendment because it is particularly offensive for the Government to target the poorer section of the community and not those who drive their private cars—like Subarus, Volvos, Mercedes, Audis and so on, like we do. We will never get caught with our drugs, if we have drugs on us while driving our cars. I am sure members of this Chamber will be driving their cars while they have drugs.
The Hon. Duncan Gay: I drive a Volkswagen.
The Hon. RICHARD JONES: You don't! Why don't you upgrade?
The Hon. Doug Moppett: Try to make some sense.
The Hon. RICHARD JONES: The point is that only one section of the community is being targeted by the Carr Government. They are the poorer people who travel by public transport. It is really offensive for people to be stopped when getting on buses or trains going to or from work. They can be attacked by the police and their dogs while on their way to work or home from work. This has happened on many occasions. People have been embarrassed by being searched on their way to work. As I mentioned earlier, on the street outside these precincts I met a person who had that happen to him. It has happened to very many people.
The Hon. Duncan Gay: The Hon. Ian Cohen told us during the second reading debate that police were checking cars at Rushcutters Bay last night.
The Hon. RICHARD JONES: The bill does not refer to private vehicles. Does the Deputy Leader of the Opposition want to add them?
The Hon. Duncan Gay: It must be able to happen.
The Hon. RICHARD JONES: It is not in the legislation. The bill refers only to people getting on public passenger vehicles. It does not refer to private cars. Provision is made for public transport vehicles, not private vehicles. It is offensive that the Carr Government targets the poorer section or the young people in our society.
The Hon. MICHAEL COSTA (Minister for Police) [11.09 p.m.]: The Government cannot support that amendment.
Ms LEE RHIANNON [11.10 p.m.]: I move Greens amendment:
No. 4 Page 5, clause 9. Insert before line 20:
(3) A police officer who is carrying out general drug detection under this Part is to ensure that the words "NSW Police Service" are clearly displayed on a jacket worn by the dog. This subsection does not apply if the general drug detection is part of a covert operation authorised by a warrant under section 8.
This amendment seeks to require a police officer who is carrying out general drug detection using a dog to ensure that his or her dog is wearing a jacket with the words "NSW Police Service" clearly displayed on it. The Greens are absolutely serious about this amendment. It provides a neat way to ensure the right thing is done by the people of New South Wales and it will ensure that police are able to carry out their work responsibly.
Reverend the Hon. Fred Nile: The dog may not like that. What about the rights of the dog?
Ms LEE RHIANNON: Reverend Nile, these dogs are highly trained—
The TEMPORARY CHAIRMAN (The Hon. John Hatzistergos): Order! The honourable member will address her remarks through the Chair and not respond to interjections.
Ms LEE RHIANNON: I apologise. As I said, the Greens are absolutely serious about this amendment as it will bring a small measure of confidence into police operations with regard to drug searches. The amendment makes exception for covert operations in proposed clause 8.
The Hon. Michael Costa: This is ridiculous.
Ms LEE RHIANNON: No, it is not ridiculous. Again, police can conduct secret operations in which their dogs can participate, but when police are out on the street and on trains and going down King Street—
The Hon. Doug Moppett: They should be in uniform.
Ms LEE RHIANNON: Yes, precisely, because, as many members have said, people love dogs. When they see a dog on the street, their first inclination is to pat it. Why cannot honourable members agree to this simple measure so that people will not be compromised when they pat a dog on the street with the implication attached that they have drugs. This amendment really seeks to extend traditional practice of random sniffer dog searches. Police officers are required to wear a uniform and plain clothes officers are required to identify themselves before questioning a person. Obviously a dog cannot identify itself. An innocent member of the public, minding his or her business, who is walking down the street will not automatically assume that a cute doggie is a drug dog out on the town doing its work. As I have said, many people are fond of dogs.
I overheard the Minister say that a police officer would be at the end of the leash. I suggest that just because a police officer is at the end of the leash does not mean that people will expect that the dog will sniff at them to see whether they are carrying drugs. We would not tolerate plain clothes police walking up to members of the public to conduct a search without first identifying themselves and without first having a suspicion that an offence had been committed. We would all be outraged by that situation. However, because the agent in question in this case is a dog, the suggestion is that we should let the Government get away with such behaviour. A jacket for police dogs would not be expensive and would not prove a problem for trained dogs to wear. I was surprised by the remarks of Reverend Nile because these dogs are highly trained—
Reverend the Hon. Fred Nile: I love dogs.
Ms LEE RHIANNON: Yes, I am sure you do. The dogs can be easily trained to wear the coats. They could be made of canvass secured by a string tie. It would be a simple measure to address an attack on one of our fundamental rights.
The Hon. MICHAEL COSTA (Minister for Police) [11.15 p.m.]: Unfortunately the Government cannot support this amendment. If the Greens had adopted a suggestion made earlier by the Hon. John Jobling of providing flashing blue collars for detection dogs, we might have been able to do some business.
The Hon. RICHARD JONES [11.15 p.m.]: Reverend the Hon. Fred Nile made a good point about the rights of dogs. The dogs do not have any choice about being introduced and made addicted to drugs. Whenever they see drugs they get excited. But there is a new plan afoot by those who oppose drug dogs to have people offer the dogs hash biscuits and instruct them to "Sit" so the dogs will not know what is required of them in future.
The Hon. Duncan Gay: This is the same member who suggested that we spike trees?
The Hon. RICHARD JONES: No, I did not. A man in America said that. That was published in an article in Simply Living but I did not say that. I merely published someone else's opinion; I did not support it. It was actually Earth First, remember?
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.16 p.m.], by leave: I move Australian Democrats amendments Nos 1 and 2:
No. 1 Page 5, clause 9, line 20. Insert "(except section 10)" after "Part".
No. 2 Page 5. Insert after line 24:
10 Search following drug detection not to be carried out in view of the public
A police officer who searches a person because the police officer suspects that the person is committing a drug offence, being a suspicion formed as a result of the apparent detection of a prohibited drug or plant by a dog in the course of general drug detection carried out under this Part, must ensure that the search is carried out in a place that is not in view of the public.
Basically, these amendments say that a search of a person following an indication of suspicion from a dog may not be carried out in a public place. There are many instances of false positives when a dog thinks that it has detected a drug and, in fact, a search has found no drugs. I gave examples of such instances in my contribution to the second reading debate and I will not repeat them. I referred to a person who was searched one evening under the light of a hotel near a drive-in bottle shop. She was required by two police officers to shake her top in a public place. The search found nothing.
A friend of mine was stopped by a sniffer dog at Central station. She was very distressed. She was extremely embarrassed because, as she travels at the same time by train each day, she knew many of the people in her carriage, most of whom were wondering why she had been stopped. Apparently she had carried a small amount of marijuana in her handbag some weeks prior to this search—the scent of which attracted the attention of the dog—but there was none in her bag at the time of the search. This was a false positive. My friend was humiliated and upset. Some years earlier she was the victim of a rape attempt when somebody broke into her flat, held her down and tried to rape her. This search caused her to have flashbacks of that offence for quite some time. She found having to stand in a public place, being touched and searched, an extremely distressing experience. She was humiliated in front of her friends.
The Hon. Ian Cohen referred to the person in Mullumbimby who was strip searched in a public place. This is not a trivial matter; it is not a cause for banter and humour. Article 17 of the International Covenant on Civil and Political Rights, which Australia signed and which came into force on 23 January 1993, states:
No-one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence nor to unlawful attack on his honour and reputation … Everyone has the right to the protection of the law against such interference or attacks.
If these amendments are not passed we will be in breach of the International Covenant on Civil and Political Rights. I ask honourable members to support people's basic right not to be humiliated by public searches conducted on the basis of false positive reactions by sniffer dogs. These extremely reasonable amendments should be accepted.
The Hon. RICHARD JONES [11.21 p.m.]: These are fundamental amendments that should be accepted by the Committee. People should not be strip searched in public. On many occasions people have been stripped to their underpants. Is that not strip searching? It is incredibly embarrassing, particularly if no drugs are found.
The Hon. Duncan Gay: The amendment is against all searches, not just strip searches.
The Hon. RICHARD JONES: People should be taken to a police station and searched there. What is wrong with that? If police officers suspect a person of carrying drugs—they only ever find cannabis—they should take that person to a police station and conduct the search properly. Searches, particularly strip searches, should not take place in the street. I urge the Minister to accept these amendments.
The Hon. HELEN SHAM-HO [11.22 p.m.]: This is one of the few groups of amendments I support. I think it is reasonable to conduct searches out of public view. It is not reasonable to embarrass people by searching them in public.
Ms LEE RHIANNON [11.22 p.m.]: The Greens strongly support the amendments and congratulate the Hon. Dr Arthur Chesterfield-Evans on moving them. They offer a chance to conduct searches decently. What is wrong with taking a person to a police station to be searched? What is wrong with searching people in mobile vans, of which the police seem to have thousands these days? The police claim they will be organised and will plan these searches in a professional manner—that is the implication in the Minister's comments. These amendments offer a means of making searches more professional and ensuring that people are not humiliated, which is what happens when they are strip searched in public. To those who claim that being stripped to one's underwear is not a strip search, I ask: How would they feel if it happened to them?
The Hon. IAN COHEN [11.23 p.m.]: I add my voice to the chorus of support for these important amendments. They are mild amendments and there has been much frivolity in the Chamber this evening.
Reverend the Hon. Fred Nile: They would make the bill unworkable.
The Hon. IAN COHEN: That is absolutely ridiculous. The amendments provide that if police officers suspect a person of carrying drugs they must remove that person either to a police station or to some other appropriate place nearby to conduct a search. As Ms Lee Rhiannon pointed out, the police could use a suitable vehicle, such as a van.
Reverend the Hon. Fred Nile: And spend more money.
The Hon. IAN COHEN: That is a most trite comment. Reverend the Hon. Fred Nile is complaining about the cost of having one vehicle nearby so that people can exercise their basic human right not to be searched in public. There have been searches like that in Mullumbimby and in Byron Bay. It is a simple point. If the Government believes such searches are appropriate, it should allow people some privacy and show them some common decency.
It is not just about physical exposure but about the impression that is created. It happened to me. Many years ago—when I had hair and a beard—I handed someone a yoghurt culture and I was searched by police in the street and the back of my car was searched. It was degrading: passers-by assumed I was a criminal. People in this country have the right to be taken somewhere private to be searched. The police have an obligation to organise somewhere to conduct a search properly, even if it is a cubicle such as a portaloo.
The Hon. ALAN CORBETT [11.25 p.m.]: I agree with these amendments to a certain extent, but I ask the Minister: When would a police officer cease to search a person in public view? At what stage of undress—down to their jocks or bra? We must draw the line somewhere. Police sniffer dogs have been used in the past. Where can the line reasonably be drawn?
The Hon. MICHAEL COSTA (Minister for Police) [11.25 p.m.]: Protocols govern the use of police dogs and they require officers to use their discretion when conducting searches in circumstances involving sniffer dogs. I expect officers to use their discretion. Under the current arrangements, officers have the power to conduct searches, and they use their discretion. If they do not, there are procedures in place to deal with that.
The Hon. RICHARD JONES [11.26 p.m.]: What are those precise procedures? People have been strip searched. Have the officers involved been dealt with? No. Is the Minister aware of the procedures or is he completely ignorant of them?
The Hon. MICHAEL COSTA (Minister for Police) [11.26 p.m.]: There are protocols.
The Hon. Richard Jones: What are they?
The Hon. MICHAEL COSTA: I am happy to provide copies of the relevant sections of the protocols to honourable members who are interested in seeing them.
The Hon. JOHN JOBLING [11.27 p.m.]: The Opposition has some sympathy with the Hon. Dr Arthur Chesterfield-Evans' views on strip searches. However, the amendments state that a search following drug detection must not be carried out in the view of the public. They do not set out what type of search. Do they refer to a standard search involving the turning out of pockets or to a patting down? The amendments do not refer specifically to strip searches. Therefore, while I sympathise with the Hon. Dr Arthur Chesterfield-Evans' argument, I cannot support the amendments in their present form. The protocols that I suspect will be read to the Committee in a moment detail precisely the procedure that police officers must follow when they conduct a full strip search.
The Hon. MICHAEL COSTA (Minister for Police) [11.27 p.m.]: To clarify this point I will read the relevant sections of the protocols regarding strip searches. As I have said on numerous occasions, they make it very clear that police must abide by these protocols. The protocols state:
When searching make a reasonable effort to reduce embarrassment and loss of dignity to those being searched. Conduct the search at or nearby the place where the person or vehicle was stopped. Generally conduct a frisk search only. A strip search cannot be conducted unless clearly justified. If you decide to strip search do it out of view of anyone not needed for the search—at a nearby police station is preferred. It is to be conducted by an officer of the same sex as the person being searched. Where possible conduct the search in the presence of a duty officer, crime manager or supervisor of the same sex as the person. If it is not possible conduct it in the presence of another of the same sex. Record all searches, those present, the reasons for your suspicions, all conversations and actions in your notebook. Ask the person to sign the entry.
As I said earlier, there are detailed protocols that relate to the use of tools by police such as sniffer dogs—protocols that the Government considers important. I said that the bill strikes a sensible balance between civil liberties and the need for the community to be protected from illicit drugs. I am happy to provide copies of those protocols to honourable members who are concerned about this issue. The amendments, which are misguided, in a sense would negate the purpose of the bill.
The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [11.29 p.m.]: When the Minister finally read out the protocol it became obvious to honourable members that there was not a real problem. However, the anecdotal stories that honourable members referred to present a problem.
Reverend the Hon. Fred Nile: They may not be true.
The Hon. DUNCAN GAY: They may not be true. If those stories are true, however, those incidents should not have occurred. I hope the Minister gives an undertaking that he will not permit those sorts of incidents. The amendments moved by Arthur are a catch-all.
The Hon. Jan Burnswoods: Are you calling him Arthur? I am outraged! After everything you have said in this place about title! You are obsessed with title and you just referred to him as Arthur!
The TEMPORARY CHAIRMAN (The Hon. John Hatzistergos): Order!
The Hon. DUNCAN GAY: I acknowledge that I have transgressed my own rules. I accept the admonishment. The amendments moved by the Hon. Dr Arthur Chesterfield-Evans would result in no searches being conducted—which would render this bill meaningless. No searches would be able to be conducted. That might be the intention of the honourable member's amendments, but I do not think that is the case. The words used in the amendments are laudable, and their purpose is not to prevent searches from being conducted. It is a pity the Minister did not explain that to us earlier.
The Hon. Michael Costa: I said there were protocols.
The Hon. DUNCAN GAY: The Minister did not detail the protocols.
The Hon. Michael Costa: You did not ask me.
The Hon. DUNCAN GAY: It could have been done earlier and better, and we would have avoided this trouble.
The Hon. MICHAEL COSTA (Minister for Police) [11.31 p.m.]: I will read all 51 pages if that is the wish of the honourable member.
The Hon. IAN COHEN [11.32 p.m.]: I acknowledge the explanation given by the Deputy Leader of the Opposition. However, I believe there is a subtle difference. A sniffer dog squad goes out with a specific target in mind: to apprehend and search people for drugs. That is a little different from, say, the activities of police on the beat. Their operation is far broader and more general and they are not anticipating, if you like, having to search for drugs. The purpose of the sniffer dog squads is quite specific, and it is not unreasonable that they should have some sort of mobile facility or police van in which to search people in privacy.
The Hon. RICHARD JONES [11.33 p.m.]: I agree with the sentiments expressed by the Hon. Ian Cohen. The Minister indicated why the Government should accept the amendment. I ask the Minister: What penalties are there—if any—if these protocols are breached? Apparently these protocols are being breached time and again. Are there any penalties? Can the Minister give us an indication as to whether there are any penalties?
The Hon. MICHAEL COSTA (Minister for Police) [11.34 p.m.]: There are severe penalties if police operate outside the protocols of the Police Service, not only in this matter but in other matters. The detailed complaint procedure that is in place has penalties ranging from cautioning and suspension to actual removal from the service. Honourable members should be aware of the complaints procedure.
That is a separate question. I am happy to show any honourable members this detailed code of practice.
The Hon. Richard Jones: Just table it.
The Hon. MICHAEL COSTA: There are 62 pages that detail the code of practice. I will not table this document but I am happy for honourable members who are concerned about this issue to look at the sections relating to strip searches and other activities.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: [11.35 p.m.]: The Minister read out the protocols relating to strip searches, but that is not the issue with which we are dealing. Leaving aside the absurdity of a strip search, an ordinary search can cause people to be totally humiliated in front of their friends and have their reputation damaged and their privacy invaded. Sniffer dog teams are routinely working at Central Station and in night clubs, and people are suffering the humiliation of being strip searched by police. The Hon. Doug Moppett suggested that these are anecdotal experiences that may not be true. That is fatuous. It was also suggested that it is extremely difficult to conduct strip searches in non-public places, but a portable cubicle with a curtain could be erected anywhere.
Reverend the Hon. Fred Nile: A dog could carry it.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I do not think a dog would be able to carry it, but a police officer could carry it. The erection of such a cubicle, which could be transported in the back of a police car and assembled at no cost, would ensure that people were not humiliated. It would not be difficult to do that. My amendments are reasonable. This Parliament should comply with the International Covenant on Civil and Political Rights and not depend on protocols relating to strip searches.
The Hon. MICHAEL COSTA [11.36 p.m.]: I did not understand the contribution by the Hon. Dr Arthur Chesterfield-Evans. He started his contribution by saying that his amendments did not relate to strip searches, but he ended by referring to strip searches. I assure the honourable member that there are guidelines for ordinary searches. Underlying all of these issues is the fact that a police officer must have a reasonable suspicion before conducting a search.
The Hon. RICHARD JONES [11.36 p.m.]: Will the Minister ensure that officers who go onto the streets with sniffer dogs have a copy of these guidelines so they know what they are doing? That will ensure that they do not keep breaching guidelines that they do not even know exist.
The Hon. MICHAEL COSTA (Minister for Police) [11.37 p.m.]: Every officer in the New South Wales Police Service is made aware of his or her responsibilities in relation to the code of conduct. I have here the relevant protocol. I will let honourable members look at it.
Ms Lee Rhiannon: Why didn't you know about the protocol for strip searches?
The Hon. MICHAEL COSTA: I do not conduct strip searches.
Ms Lee Rhiannon: How can you have confidence in your officers?
The TEMPORARY CHAIRMAN: Order! Ms Lee Rhiannon will come to order.
The Hon. MICHAEL COSTA: The honourable member ought to be aware that I do not conduct strip searches, or any searches for that matter. I do not have access to sniffer dogs, though I would like on occasions to bring one into this Chamber. It would be interesting to see the results.
Question—That Australian Democrats amendments Nos 1 and 2 be agreed to—put.
The Committee divided.
Mr R. S. L. Jones
Question resolved in the negative.
Parts 1 and 2 agreed to.
The Hon. PETER BREEN [11.44 p.m.], by leave: I move my amendments Nos 1 and 2 in globo:
No. 1 Page 6. Insert after line 7:
11 Records in relation to searches and general drug detection
(1) A police officer who uses a dog:
(a) to search a person or persons for the purpose of detecting a drug offence, or
(b) to carry out general drug detection,
must make written records in accordance with this section.
(2) Such records must contain particulars in relation to the following:
(a) the number of persons searched,
(b) the number of occasions on which the dog is alerted to the presence of a prohibited drug or plant on a person or persons but where no such drug or plant is actually found on the person concerned,
(c) the action taken in respect of any person who, as the result of a search or the carrying out of general drug detection, is found to be in possession or control of a prohibited drug or plant.
(3) Records under this section are to be in the form, and be kept in the manner, approved by the Commissioner.
No. 2 Page 6. Insert after line 20:
13 Commissioner of Police to report to Minister
The Commissioner of Police is to report annually to the Minister in relation to the following matters:
(a) the costs associated with exercising the powers conferred on police officers by this Act,
(b) the total number of police officers and dogs involved in the exercise of those powers,
(c) the extent to which other police resources are involved in the exercise of those powers,
(d) the overall time spent by police officers in exercising the powers conferred on police officers by this Act.
In his earlier contribution the Hon. John Ryan made an important point about the consequences of properly administering the legislation. He said that there should be measures to ensure the bill is properly monitored. The Minister said in his reply that police will provide statistical data on the use of dogs for drug searches. These amendments will ensure that statistical data and the related police obligations are stated in the legislation clearly. If the statistics become part of the regulations, which are part of the bill, they will not be open to scrutiny. Certainly, the obligations on police are not clear to those being searched and apprehended. These amendments are in general terms and follow the line of questions I have asked the Minister about whether dogs reacted to substances other than illicit drugs, such as prescription drugs, certain chemicals and certain types of clothing. If proper records are not kept this kind of information will not be available, nor will a proper assessment of the impact of the legislation.
I believe it is a fundamental principle to have the record-keeping system included in the legislation and not just as part of the regulations. Additional regulations are fine, but the obligations of police officers and the kinds of records they will keep—the number of people searched, the results of those searches, how many false positives and that kind of information—must be publicly available to show that the police keep those records, which is the purpose of my amendment No. 1. My second amendment is that the Commissioner of Police is to report to the Minister on the results of the record keeping together with the costs involved in the resources used—I gave an example in my contribution to the second reading debate of the cost to the community in the use of helicopters—and whether the results, apprehensions, amount of drugs found and convictions justified the expenses. I urge the Committee to support these amendments.
The Hon. ALAN CORBETT [11.47 p.m.]: I support these amendments. There are only 12 dogs in the whole State. Surely it would not be an onerous task for the 12 officers to maintain those records and for the Commissioner of Police to report the results to the Minister. They are reasonable amendments.
The Hon. JOHN JOBLING [11.48 p.m.]: The keeping of records in some form is reasonably essential and perhaps is a basic requirement. These amendments seem to go further and ask for a range of other things for various reasons. The important point is that the records being kept are in a useful form approved by the commissioner and are reasonably simple. It is highly desirable that the information be reported back to the House. I suspect the solution is for the Minister to give an undertaking that such records be kept and that the statistical data be made available to the House regularly. If my memory serves me correctly, I suspect that a protocol may already exist requiring individual officers to fulfil that task. If that is so, and if the Minister reads that to the House, we may find that is sufficient. It is reasonable for the Minister to give the Committee that undertaking tonight, that records will be kept in relation to cost, outcomes and results, the total number of officers and total number of dogs involved in the exercise of police powers, and such other records as the protocols require him to keep.
The Hon. RICHARD JONES [11.49 p.m.]: I support the amendments of the Hon. Peter Breen. These are fairly mild amendments and I think it would be advisable for the Minister to support them as well. The Minister himself would want to know these facts. This debate is not going to go away; it will continue for the next couple of years, certainly until the next election. It will be in the Minister's interest to accept these amendments.
Reverend the Hon. FRED NILE [11.50 p.m.]: I support the proposition presented by the Hon. John Jobling. Normally these requirements are contained in the regulations. Will the Minister give an assurance that something like this will be in the regulations? What worries me is that we are almost giving a direction to the police commissioner how to run the Police Service and how to run the dog squad. Perhaps other important questions are not listed here. I do not know how long the Hon. Peter Breen spent working on these amendments and whether he has consulted with the police commissioner or anyone else but I do not think it is right for this Committee to think it can direct the police commissioner how he should set up the records.
The Hon. MICHAEL COSTA (Minister for Police) [11.51 p.m.]: The Government cannot support the amendments but we can give an undertaking to ensure that proper records are kept. As has been pointed out, the protocol makes reference all the way through it to the keeping of records. In relation to reporting, the Ombudsman is overseeing it, but I am prepared to give an undertaking that an appropriate process will be developed for reporting as required.
The Hon. JOHN JOBLING [11.51 p.m.]: I thank the Minister for the undertaking he has given us. Would it be within his power to give us an undertaking that within 12 months of the legislation being proclaimed the commissioner will make available to him, for him to bring back to Parliament, the sort of information that has been referred to? That will allay a lot of problems. After that, if the Committee feels it requires more regular reporting, or if the Minister feels that way, the Government can move an amendment to ensure that happens.
The Hon. MICHAEL COSTA (Minister for Police) [11.52 p.m.]: I am prepared to give the undertaking in the form that is being asked, provided it does not increase the cost on the Police Service introducing this material and does not create inflexibility in the reporting arrangements. Subject to those qualifications I have no problem coming back in 12 months time.
The Hon. RICHARD JONES [11.52 p.m.]: If we ask questions based on these amendments at estimates hearings, the Minister and the commissioner will be able to answer those questions, will they not? The Minister is not used to what happens, but at estimates hearings questions like that are asked. These questions will be asked at the next estimates and we want to make sure in advance that the questions can be answered.
The Hon. MICHAEL COSTA (Minister for Police) [11.53 p.m.]: I have given an undertaking to the Opposition and I will meet that undertaking. As to other matters, they will be dealt with in the normal process.
The Hon. ALAN CORBETT [11.53 p.m.]: The Minister has not given any concrete undertaking on anything. He has not specified any of these things, so his undertaking is meaningless.
The Hon. RICHARD JONES [11.54 p.m.]: I move my amendment No. 3:
No. 3 Page 6, clause 11. Insert after line 15:
(3) Without limiting the generality of subsection (2), the regulations may require that a record is to be made of:
(a) the result of each search that is carried out under this Act (including each occasion where a dog is alerted to the presence of a prohibited drug or plant but nothing is found on the person concerned), and
(b) the action taken in respect of any person found to be in possession or control of a prohibited drug or plant, and
(c) the overall cost of carrying out general drug detection operations by the use of dogs under this Act, including particulars as to the number of police officers, dogs and other resources involved in those operations and the duration of each operation carried out.
This amendment is similar to the amendments moved by the Hon. Peter Breen except that it allows for more specifics to be put into regulations and it does not put all the information into the legislation. I would have thought that the Minister would have been advised to accept this amendment. If the Minister is unable to accept the amendment, although I hope he will, will he give the Committee an assurance that he will be able to answer questions about these matters that will be asked at the next estimates?
The Hon. MICHAEL COSTA (Minister for Police) [11.55 p.m.]: I have given all the assurances I intend to give on these matters.
The Hon. RICHARD JONES [11.55 p.m.]: The Minister has not talked about whether he supports the amendment and has not given any reasons why he will or will not support the amendment or whether he has received any advice to support it. Perhaps he could give the Committee the courtesy of a reply.
The Hon. MICHAEL COSTA (Minister for Police) [11.55 p.m.]: I have indicated that I do not support any of the amendments before the Committee, including this one, and I have already made my point about the assurances I am prepared to give.
The Hon. ALAN CORBETT [11.55 p.m.]: With regard to the regulations, clause 11 (2) provides that the regulations may make provision for or with respect to the keeping of records, et cetera. I know this is a common way of writing something, but when the Minister or his department makes up the regulations, he will be writing to the Attorney General and the Attorney General will give a tick to those regulations. Will the Minister specify the sorts of records he has in mind that will be contained within the regulations? I ask this specifically, because clause 13 (2) provides that the Ombudsman may require the Commissioner of Police to provide information about the exercise of those powers. Parliament deserves to have some idea of the sorts of records that will be required under the regulations so that we know what the Ombudsman will be looking for.
The Hon. MICHAEL COSTA (Minister for Police) [11.57 p.m.]: The records that will be required under the regulations are the ones that reflect the assurances I have given Parliament and the requirements of the Ombudsman and any other regulatory or oversight body.
The Hon. RICHARD JONES [11.57 p.m.]: Will the Minister please get some more advice from his advisers and give us more detail? He is very hazy on the details and surely he can give some more details. I believe those details are coming to the Minister right now. The Minister has been given a sheet of paper with some information on it. Can we please have that information on the record?
The TEMPORARY CHAIRMAN (The Hon. John Hatzistergos): The Committee is debating a clause of the bill. I cannot give the call to the Minister if he does not want the call.
The Hon. ALAN CORBETT [11.58 p.m.]: I am sorry to persist with this, but the Minister is not prepared to nail down anything. He is not prepared to give any concrete assurance about these matters at all. Clause 13 (2) provides:
It is my understanding that the Ombudsman will make a request to the Minister to provide information about the exercise of those powers. Will the Minister give the Committee an assurance that if the Ombudsman makes that request the Minister will reply to the Ombudsman and answer his specific questions?
For that purpose, the Ombudsman may require the Commissioner of Police to provide information about the exercise of those powers.
The Hon. MICHAEL COSTA (Minister for Police) [11.58 p.m.]: Again, that is a completely ridiculous question. The clause itself says that I have to.
The Hon. RICHARD JONES [11.59 p.m.]: The Minister tells the Committee that he has to do it, but he does not know what he has to do. He has no idea whatsoever. It is time he got some decent advice.
Part 3 agreed to.
Title agreed to.
Bill reported from Committee without amendment and passed through remaining stages.