Last updated 3 December 2018
Police powers to search
Police have wide ranging powers under the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act) to search a person, premises or a vehicle with or without a warrant, particularly in circumstances where the police officer reasonably believes that the person is in possession of drugs, or that drugs are located on the premises or in the vehicle. For a full discussion of these powers see ch 2, pt 2 of the PPR Act regarding searching persons, vehicles and places without a warrant. Also, police may use drug detection dogs in certain circumstances to carry out drug detection activities in relation to people and places, without a warrant (ch 2 PPR Act).
Police covert evidence gathering powers
The powers of police officers to use covert evidence gathering techniques is primarily governed by chs 9 to 11 of the PPR Act, which enables police to seek authorisation to exercise powers such as using surveillance devices, conducting covert searches and undertaking controlled (undercover) operations. Police can therefore be authorised to enter a person’s home or business, without their knowledge, and install audio and/or video cameras as well as installing a tracking device in their vehicle. Undercover police can be allowed to participate in conduct that could amount to an offence, such as drug possession or supply, in order to gather evidence.
Almost every major drug investigation by police has involved tapping the telephones used by people suspected of dealing in drugs (Commonwealth telephone interception powers). This often produces recordings of hundreds or even thousands of conversations between networks of people over a period of months to be used as evidence before arrests are made.
Other law enforcement agencies, such as the Crime and Corruption Commission Queensland and the Australian Crime Commission, have similar investigative powers under the respective statutes that govern their operations.
Party and event police powers
Police have powers to deal with out of control parties or events. ‘Out of control’ is defined to include an offence under the Drugs Misuse Act 1986 (Qld) (Drugs Misuse Act). Police have additional powers to stop a vehicle or enter a place without a warrant and can give directions at these events.
Police also have powers under the Major Events Act 2014 (Qld) (Major Events Act), including giving directions to leave and not re-enter a major event area if a person appears to be adversely affected by a drug (s 26(1)(b) Major Events Act). The Major Events Act also includes an offence of ‘appearing to be drunk or adversely affected by a drug’ and entering a major event area (s 18(3) Major Events Act, maximum penalty 20 penalty units or $2611).
Forfeiture, restraining orders and confiscation
The Drugs Misuse Act (pt 5) has extensive provisions giving police and/or the Crown the right to apply for forfeiture of property involved in or acquired from drug offences.
Section 33 of the Drugs Misuse Act provides that property (other than drugs) will be liable for forfeiture if it:
- was acquired to commit or used to commit an offence (i.e. those offences set out above)
- is the proceeds of or acquired with the proceeds of a drug offence
- is property into which the proceeds of such offences have been converted. Property can be liable for forfeiture even when it is not specifically traceable to an offence.
Sections 41 to 43 of the Drugs Misuse Act give courts the power to make restraining orders when property may be liable to forfeiture, and proceedings have or are about to be commenced. A restraining order passes management of the property to a named manager and allows the manager to deal with the property as if they were the absolute owner.
The Criminal Proceeds Confiscation Act 2002 (Qld) (CPC Act) also targets financial gains associated with allegedly illegal activity. Property can be confiscated (i.e. restrained and forfeited) under this legislation in relation to allegedly illegal drug-related activities, even without any formal criminal convictions.
The Serious Drug Offender Confiscation Order Scheme is contained in the CPC Act. Under the scheme, a court that is sentencing an offender for a serious drug offence must issue a certificate for each conviction of a serious drug offence (a serious drug offence certificate). A ‘serious drug offence’ is then defined as a ‘qualifying offence’. The CPC Act provides that the Supreme Court must make a serious drug offender confiscation order against a person if it is satisfied that:
- the person has been convicted of a qualifying offence for which a serious drug offence certificate has been issued and
- the application for the order was made within six months after issue of the certificate.
The effect of a serious drug offender confiscation order is that it forfeits to the state all property of the person and all property that was gifted by the person in the six years before the person was charged. There is no requirement for the proposed confiscated assets to be linked to the commission of a specific offence. The CPC Act also allows the dependants of a person against whom such an order is made to apply to the Supreme Court for a hardship order with respect to ‘special property’. The CPC Act reverses the onus of proof compelling the respondent to prove the lawful derivation of increased wealth. It also has retrospective application to criminal activity committed before commencement of the Serious Drug Offender Confiscation Order Scheme.