Last updated 1 September 2021

Generally, the powers used to investigate suspected drug offences (e.g. obtaining search warrants, conducting controlled (i.e. covert) operations, powers of arrest and detention, and undertaking of forensic procedures) are contained within the Crimes Act 1914 (Cth) or other Commonwealth Acts such as the Surveillance Devices Act 2004 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth). The latter statutes enable law enforcement officers to engage in electronic eavesdropping by using listening devices to overhear and record private conversations, and to intercept and record telecommunications including telephone conversations.

Under the provisions relating to controlled (undercover) operations, authorised law enforcement officers investigating serious Commonwealth offences can themselves engage in conduct that could constitute an offence against Commonwealth or other state or territory laws (e.g. the possession or supply of drugs during a covert drug investigation).

Searches of premises

The issue of search warrants and the powers of arrest are provided for in pt 1AA of the Crimes Act. Section 3E of the Crimes Act provides when search warrants may be issued and s 3E(5) details what must be stated in the warrant. The conditions listed in s 3E(5) require the warrant to describe the premises to be searched and the evidence to be searched for.

Evidence gathering through use of technology

Mobile telephones, personal computers and social media communications are increasingly becoming fertile sources of evidence for the prosecution of drug and other offences. Police have ready access to software enabling them to download the entire data history of mobile telephones including contact lists, call registers and text messages. Information about the location of a mobile telephone through its use at any point in time can also be obtained. People are increasingly being charged with drug supply and/or trafficking based on information obtained from their mobile telephones. Computers can also be seized by police to obtain records including email communications and the history of internet usage. Expert forensic analyses of these devices regularly enable police to recover deleted information.

Confiscation

There are other specific Commonwealth laws targeting the financial gains associated with illegal activities, which are often utilised in drug-related cases (see the Proceeds of Crime Act 2002 (Cth)). Under this legislation, property can be restrained, seized and forfeited including in circumstances where a person is not actually convicted of a criminal offence in connection with the allegedly illegal activities.