NSW Police May Be Given The Power To Search Your Home And Car Without A Warrant – A Case Of Double Jeopardy?
The Liberal Parties Premier, Gladys Berejiklian has announced new laws for police to target drug dealers which would give them the power to search the homes and cars of convicted drug dealers under a re-elected Coalition government.
The police have fought hard to bring such changes.
The question posted is haven’t these convicted drug dealers served their time and already been punished for their prior offences? Why is it that they will continue to be targeted?
“This is a request put to us by the NSW Police Force,” Ms Berejiklian said.
“I want convicted drug dealers to know that they will have nowhere to hide if they want to prey on, and profit from, the people of NSW.”
POWER TO SEARCH
Currently, in Australia the right to search a person’s premises or property in order is done by way of a search warrant.
Generally, the Police do not have the power to search a person, their vehicle or the premises that they live in without a warrant. The Police must comply with the legislated rules while obtaining a search warrant and executing the search warrant, if they do not the search could be deemed by the Court as invalid and if any evidence found in it can be prevented from being used to prosecute a person. In other circumstances, it can be deemed inadmissible and rejected by a Court pursuant to the discretionary provisions found at Section 138 of The Evidence Act (NSW).
There are circumstances where Police do not need a warrant. For example if they believe that there could be a case of Domestic Violence in the household or when searching a car without a warrant, section 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) indicates that the Police must prove ‘reasonable grounds’ for suspecting that for example the car contains prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985. The rule of reasonable suspicion applies to both the premises you live in and the vehicle you drive.
Pursuant to section 47 of the Law Enforcement (Powers and Responsibilities) Act 2002, “A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant”. It is an offence to fail to comply with the direction without reasonable excuse (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), section 197).
HOW DO POLICE CURRENTLY SEARCH WITH A WARRANT?
Currently the police need to make an application for a Court to determine whether a warrant can be granted. It is the Court that grant the warrant.
NEW POLICE POWERS
The Liberal party is determined to crack down on drug offenders after so many deaths of young people at music festivals. To read more about the issue of Drug deaths at music festivals click here. They propose to do this by introducing new powers for a two year trial period. According to the Daily Telegraph this new power will allow officers to search the homes and cars of people who have been convicted of drug related offences in the past 10 years, without a warrant.
Premier Gladys Berejiklian states that:
“Community safety is the highest priority of the NSW Liberals & Nationals Government, and I want convicted drug dealers to know that they will have nowhere to hide if they want to prey on, and profit from, the people of NSW”
Police Minister, Mr Troy Grant said:
“the policy was aimed at the trade in the drug ice, and also heroin in some coastal areas of northern NSW. He said drug dealers often targeted young people, as a former police officer, I’ve seen the harsh reality of illegal drugs in our communities, and I’m confident that these orders will help our police take the fight to drug dealers, and show them that we will not tolerate having this filth on our streets”.
Drug Supply Prohibition Orders will initially operate as a two-year pilot program, after which the results will be assessed to inform the future operation of the new powers. Orders made will remain in force for the duration of the pilot program and will allow police to search a person or their property for prohibited drugs, drug pre-cursors, drug paraphernalia or equipment for drug manufacture, or other evidence of drug supply or manufacture.
An application for an order may be made in relation to any person convicted of a serious drug offence, such as supply or manufacture of an indictable quantity, in the past ten years. Consistent with the exercise of any police power, Drug Supply Prohibition Orders will be subject to oversight by the Law Enforcement Conduct Commission.
Our Parramatta Criminal Lawyers pose a number of questions for the new proposal. There is no doubt that drugs have been a major cause and at times resulted in death of members of our community. But the question is one of civil liberties. Even if the argument in favour of civil liberties is not successful, has the government considered the idea of double jeopardy?
Is the convicted drug dealer not being punished twice?
Are our inalienable rights such as innocent until proven guilty and right to silence soon to be eroded?
When is the judiciary going to stand up against this torment and protect ancient principals which make our society a democracy?