‘Drug dogs unleashed’: An historical and political account of drug detection dogs for street-level policing of illicit drugs in New South Wales,Australia

Abstract

This article provides an historical and descriptive account of the introduction and development of the use of drug detection dogs as a tool for street-level illicit drugs policing in one Australian jurisdiction, NSW. Within this account, the legal and political context in which drug detection dogs emerged and gained prominence is described. The introduction of drug detection dogs was contingent on the political imperatives at work throughout the 1990s in NSW, and the increased salience of both policing and illicit drugs issues at this time. In documenting the emergence of the use of drug detection dogs from the early 2000s, and the associated legal challenges and rapid legislative responses, the role of third sector organisations and the media in generating debate is notable. Debates concerning the dogs’ effectiveness emerged in the mid- to late-2000s, giving rise to anomalies between policy and evidence. The more recent legislative developments and public and political debate about drug detection dogs from 2012 to 2014 can be seen in light of this history. By taking a different view which situates decisions and events in their historical and political context, we begin to see the dynamic processes and contingency involved in the development and implementation of particular illicit drugs policing policies over time. As debate about drug detection dogs continues to play out, generating new insights into drugs policing policy processes is imperative.

Keywords

Drug detection dogs drug policy history New South Wales policing policy processes

Introduction

The use of drug detection dogs for street-level policing of illicit drugs has formed an important part of how the police perform street-level drug detection duties in Australia. Drug detection dogs (‘sniffer dogs’) are used in many countries as a high visibility policing strategy; however, the expansion of their use has not been without criticism (Marks, 2007; Meagher, 2009; Nabben, 2009). Last year, public debate regarding the use and effectiveness of drug detection dogs was reignited in the New South Wales (NSW) Parliament, with the Law Enforcement (Powers and Responsibilities) Amendment (Sniffer Dogs – Repeal of Powers) Bill 2015 being introduced to repeal provisions relating to the use of police dogs for general drug detection.

While the effectiveness of drug detection dogs and their influence on drug use behaviour remain controversial and hotly debated topics (e.g. Dunn & Degenhardt, 2009; Hickey, McIlwraith, Bruno, Matthews, & Alati, 2012; Hughes, Weatherburn, & MacCoun, 2014; Jezierski et al., 2014; NSW Ombudsman, 2006), there has been little examination of how this policing strategy came to be introduced. In nations like Australia, and in domains like drug policy, where the rhetoric of ‘evidence-based policy’ is particularly dominant (Lancaster, 2014; Ritter & Lancaster, 2013), there may be a tendency to assume that new interventions emerge through a rational process of authoritative decision making, carefully weighing up the effectiveness of proposed solutions. Through this lens, new approaches to crime policy and illicit drugs (such as the use of drug detection dogs for street-level policing) may be seen as logical and inevitable responses to particular policy problems, drawing on the best available information and advice at the time. However, evidence-based policy making has rarely been the dominant approach to illicit drugs policing (Ritter & Lancaster, 2013). This then requires analysis which considers factors other than ‘evidence’ such as cultural, normative or political influences, which shape responses to illicit drugs. As noted by Bull (2008, p. 4), historical accounts demonstrate the ways in which current policy responses to illicit drugs are ‘culturally, historically and politically situated’. Thus, by taking a different view which situates decisions and events in their historical and political context, we may begin to see the dynamic processes and contingency involved in the development of particular illicit drugs policing policies over time.

The aim of this article is to provide an historical and descriptive account of one particular illicit drugs policing case study: the introduction and development of the use of drug detection dogs as a tool for street-level illicit drugs policing in NSW, Australia. While our focus is on this particular case study, we suggest that the themes highlighted within this account (including political contestation, the availability of ‘solutions’, notions of ‘effectiveness’, how the problem of drugs can be thought about, and the dynamic and contingent nature of decision-making) have broad implications for the study of other policing and drug policy issues across the globe. This case study has been chosen because NSW led the way in adopting and expanding the use of police dogs for street-level illicit drugs policing in Australia. Within this account, we describe the legal and political context in which drug detection dogs emerged and gained prominence. By identifying key actors and events in the development of drug detection dogs as a policing strategy, we document how drug detection dogs became embedded within the practices of the NSW Police Force over time. In doing so, we also signpost key issues, turns and contestations that we suggest are ripe for future analysis.

Our approach builds upon a body of criminological and drug policy literature, which has examined the history of crime policies in Australia including counter-terrorism responses (Finnane, 2013; Hogg, 2007), state responses to Aboriginal violence (Finnane & Richards, 2010), and rape legislation (Brereton, 1994), as well as the historical development of drug policies including drug trafficking thresholds (Hughes, Ritter, & Cowdery, 2014) and drug diversion (Hughes, 2009). By taking an historical view, each of these studies has revealed the complexities of crime policy development, thus challenging assumptions that counter-terrorism responses are ‘new’ or that drug trafficking thresholds were ‘evidence-informed’, for example. These studies have also identified key actors, events and influences and raised questions about how these factors may continue to affect policy development. Such historical accounts are therefore valuable and can establish a foundation for further more detailed and critical examinations of the policy process. Moreover, such accounts can highlight the conditions of possibility for decision making, and provide a context for asking different policy questions. That is, historical analysis can draw attention to the contingent nature of regulatory arrangements and, in so doing, open a space for thinking about alternative approaches to particular policy dilemmas.

Approach

To form this account, we drew on a corpus of documents including NSW Parliament Hansard, media, academic publications, government and institutional reports, books and online sources. These texts were obtained through comprehensive searches of Parliamentary databases, Factiva, academic databases and Google, which were undertaken between October 2014 and March 2015. The temporal sampling frame covered two decades from 1994 to 2014. Search terms included ‘drug detection dog’, ‘sniffer dog’ and ‘NSW Police’. Additional searches were conducted using the names of key figures involved in the development of the policy (for example, Minister for Police, Michael Costa). Texts were retrieved, read and then collated to form a timeline of events. Other documents which were referenced in these source documents were then also pursued. Where information in one source document was insufficient, further hand searches were conducted to enable more fulsome description. All three authors reviewed a preliminary timeline of events, which summarised the documents and all data. After review and analysis, a revised timeline was generated (see Table 1). A narrative was then formed, based on the timeline of events.

Table 1.

Timeline of key events 1932 to 2014: Drug detection dogs in NSW.

Year	Date	Event
1932		Police Dog Squad established in NSW
1994	May	Wood Royal Commission commences
1995	25 Mar	NSW State Election
1996	1 Sept	Peter Ryan’s first day as NSW Police Commissioner
1996	18 Nov	NSW Police officers protest against Ryan’s new powers under the Police Reform Act
1997	15 May	Final report of the Wood Royal Commission released
1999	Feb–Mar	The Police Integrity Commission holds hearings into the use and sale of illegal drugs by serving and former police
1999	27 Mar	NSW State Election
1999	May	NSW Drug Summit
1999	Aug	Ryan sends memo advising that Cabramatta has been downgraded
2000	July	Legislative Council Committee inquiry into police resources at Cabramatta is announced
2000	Sept	Sydney Olympic Games
2001		14 specially trained drug detection dogs begin operational duties
2001	25 Feb	Darby charged with two counts of possess prohibited drug following identification by a drug detection dog on Oxford Street, Sydney
2001	Mar	Premier Bob Carr announces a reversal of the 1999 Cabramatta downgrade
2001	9 Mar	Harris charged with possess prohibited drug following identification by a drug detection dog in Byron Bay
2001	26 July	Findings of Cabramatta Inquiry released
2001	13–14 Aug	Media reports calls from civil liberties groups for removal of drug detection dogs
2001	8 Sept	By-election in Auburn (Western Sydney electorate)
2001	22 Oct	Media reports that patrons in night clubs were searched using drug detection dogs in a large and co-ordinated operation
2001	31 Oct	Deputy Chief Magistrate Jerram in the Local Court rules an ‘illegal search’ in Darby case; appeals in Supreme Court and then again in Court of Appeal before the matter is returned to the Local Court for further hearing of the facts; Director of Public Prosecutions eventually withdraws all charges
2001	Nov	Michael Costa appointed as Police Minister
2001	27 Nov	Private members bill from NSW Opposition Leader – Drug Misuse and trafficking amendment (Sniffer Dogs) Bill 2001, to amend section 37 of Drug Misuse and Trafficking Act
2001	4 Dec	Government briefing regarding Cabramatta
2001	6 Dec	Police Powers (Drug Detection Dogs) Bill 2001 introduced
2001	Dec	Advice sought from Crown Solicitor in relation to the interpretation of the Act
2002		NSW Police commence ‘Operation Vikings’
2002	10 April	Police Commissioner Ryan resigns
2002	May	Significant media coverage of drug detection dogs
2002	10 May	Drug Detection Dogs Regulations gazetted
2002	18 May	First time police use drug-detection dogs on Sydney's streets under new police powers
2002	12 June	Motion from NSW Greens – Police Powers (Drug Detection Dogs) Bill 2001: Disallowance of Police Powers (Drug Detection Dogs) Regulation 2002
2002	17 Sept	Law Enforcement (Powers and Responsibilities) Bill 2002 introduced
2003	22 Mar	NSW State Election
2003	25 June	Police Powers (Drug Detection in Border Areas Trial) Bill introduced
2004	Apr	Drug Dogs Regulations amended to include additional rail lines
2006	June	NSW Ombudsman Report released
2006	16 Oct	General Purpose Standing Committee raises questions regarding drug detection dogs
2007	24 Mar	NSW State Election
2009		Researchers begin to publish work critical of drug detection dogs for illicit drugs policing
2011	26 Mar	NSW State Election
2011	Dec–Jan	Significant media coverage questioning accuracy and effectiveness of drug detection dogs
2012	March	NSW Police Dog Unit Facebook page founded
2012	19 Sept	Law Enforcement (Powers and Responsibilities) Amendment (Kings Cross and Railways Drug Detection) Bill 2012 introduced
2012	Sept–Oct	Media coverage of new laws making it easier to use drug detection dogs in Kings Cross; NSW Police data published suggesting one in three people targeted by drug detection dogs is carrying drugs
2014		Research released regarding the effectiveness of drug detection dogs; studies critically examine the multiple effects of such policing practices
2014	15 May	Law Enforcement (Powers and Responsibilities) Amendment Bill 2014 introduced
2014	Nov–Dec	Media reports question the effectiveness of drug detection dogs; Police defend claims

We begin by describing the early establishment of the NSW Dog Squad before considering the political context surrounding the NSW Police Force in the 1990s, and the increasing concerns about illicit drugs and policing throughout the latter part of this decade. Second, we document the emergence of the use of drug detection dogs from the early 2000s, and the ways that various legal challenges and legislative changes shaped the way that drug detection dogs were used in operational duties. Third, we discuss debates concerning the dogs’ effectiveness, which emerged in the mid- to late-2000s, particularly following the release of a report commissioned to evaluate the policy, published in 2006. Finally, we conclude by outlining more recent legislative developments, commentary and discussion of drug detection dogs in NSW from 2012 to 2014.

Drug detection dogs for street-level policing of illicit drugs in NSW, Australia

The NSW Police Dog Unit was established in 1932 and apart from an operational hiatus from 1954 to 1979, general purpose dogs have been used since then to find missing persons, detect explosives and locate drugs (NSW Police, 2015). However, it was not until 2001 that specially trained drug detection dogs were used (NSW Ombudsman, 2006). The political context of the mid- to late-1990s is relevant for understanding the salience of policing and illicit drug issues at this time, situating the subsequent introduction of drug detection dogs against a background of institutional, media and public scrutiny of these issues.

1990s: Policing, drugs and politics

In the 1990s, a critical issue for policing in NSW and illicit drugs policy in particular was the Wood Royal Commission, which started in 1994 and tabled its final report in 1997.¹ The terms of reference authorised investigation into the existence of systemic corruption within the NSW Police Force (Wood, 1997). Drug issues were a major focus. Serious concern was expressed that systematic corruption within the NSW Police Force had fostered the protection and expansion of drug trafficking in NSW.

Even before the final report was delivered, the NSW Police Force was in turmoil with major promotions on hold pending the outcome of the inquiry and senior staff maintained on month-to-month contracts (S. Williams, 2002). Police Commissioner Tony Lauer resigned in 1996, following his untenable claims that there was no structural corruption within NSW Police (Chan & Dixon, 2007). The appointment of an ‘outsider’, Englishman Peter Ryan, to the role in 1996 was controversial and his tenure was highly scrutinised by politicians, the police union and media (Chan & Dixon, 2007; S. Williams, 2002). When the Wood Royal Commission’s final 900 page report was delivered on 15 May 1997, among the 174 recommendations was concern about the level of political control being exerted over the Police Commissioner (S. Williams, 2002; Wood, 1997). While increased independent oversight was strongly recommended, Justice Wood (1997, p. 237) expressed concern that the distinction between ‘policy’ and ‘operational’ matters was not clear, and emphasised that decisions should not be forced on a Commissioner by a Minister ‘by reason of political and electoral considerations’. These issues became important factors in the subsequent development of drug detection dog policy (as will be discussed in more detail below).

From the mid- to late-1990s, illicit drugs had become a prominent political and social issue in NSW. Coinciding with the Royal Commission’s revelations about police corruption and involvement in the drug market were sharply increasing rates of heroin overdose (Darke, Ross, Zador, & Sunjic, 2000; Hall, 1999). In South Western Sydney, heroin-related fatalities had more than doubled between 1992 and 1996 (Darke & Ross, 1999), giving Cabramatta the ‘dubious distinction of being Australia’s “heroin capital”’ (Maher & Dixon, 1999, p. 489). The new Police Commissioner expressed public support for pragmatic harm minimisation approaches, which aimed to reduce the harms associated with drugs, including a trial of heroin prescription maintenance treatment (S. Williams, 2002).

Concern about drug issues in NSW came to a head, and the Premier moved a resolution in the Legislative Assembly to hold a Drug Summit in May 1999 (Swain, 1999). The majority of recommendations arising were passed, including a trial of the first medically supervised injecting centre in Australia and expansion of police drug diversion programs, to divert minor drug offenders away from the criminal justice system (Swain, 1999). The final communique contained 172 recommendations with a focus on harm minimisation approaches. Drug detection dogs as a strategy for street-level policing was not raised as a policy solution at the Drug Summit (although increased drug detection dogs at airports was suggested as a way to stop drugs at the border) (Swain, 1999).

In July 2000, a Legislative Council Committee Inquiry into police resources in Cabramatta was announced (NSW Government, 2001a). Conflicting views were expressed at the 2000 Inquiry as to how drug- and gang-related violence should be handled, with some favouring New York-style zero tolerance approaches and others advocating harm minimisation (S. Williams, 2002). The final report was ‘damning’ (S. Williams, 2002, p. 298) and found major deficiencies in police management and communications (NSW Parliament Legislative Council General Purpose Standing Committee No. 3, 2001). Premier Bob Carr publically rebuked NSW Police for ‘taking their eye off the ball’ in illicit drugs policing (S. Williams, 2002, p. 298). On 27 March 2001, the Premier released a press statement announcing the government’s plan to address drug and crime issues in Cabramatta (NSW Parliament Legislative Council General Purpose Standing Committee No. 3, 2001). At the Premier’s own direction, Cabramatta Station was reclassified as a ‘Grade One command, reversing the earlier decision made by the Police Service to downgrade the station’ and it was specified that ‘[a] team of drug detection dogs will also be deployed to the area’ (NSW Parliament Legislative Council General Purpose Standing Committee No. 3, 2002, pp. 11,13). In his announcement of the Cabramatta package, the Premier noted that drug detection dogs were already available having been ‘successfully trialled during the Olympic Games’ (NSW Parliament Legislative Council General Purpose Standing Committee No. 3, 2002, p. 12).

In summary, it is notable that while drug detection dogs were not explicitly raised as a strategy for street-level illicit drugs policing in the Wood Royal Commission (1997) or the NSW Drug Summit (1999), they were introduced as part of a package to address the Cabramatta drug market, by the Premier, in a context of heightened and continued political and public concern. Taking an historical view of political events, we can begin to see that the introduction of drug detection dogs was made possible by and was contingent upon the political imperatives at work throughout the 1990s in NSW.

Early 2000s: ‘Drug Dogs Unleashed’

It was around the time of the Cabramatta Inquiry that drug detection dogs began to be discussed more widely as a response to illicit drugs. An article bearing the headline ‘Drug Dogs Unleashed’ announced that four Labradors with special drug detection training would be used to target drug users in the trucking industry (The Daily Telegraph, 2000). The Police Minister was quoted as saying that more ‘sniffer dogs’ may be trained in addition to those which had already been trained for the 2000 Sydney Olympic Games. In 2001, 14 specially trained drug detection dogs began operational duties (NSW Ombudsman, 2006). As had been promised by the Premier, drug detection dogs were implemented as part of a suite of new policing strategies dedicated to ‘clean up the streets of Cabramatta, the nation’s drug capital’ (Lawrence, 2001, p. 6). Drug detection dogs also began being used more widely by police in clubs, licensed premises, public transport and other public places, but there was no legislation governing where or how they could be used (NSW Ombudsman, 2006).

The use of drug detection dogs quickly attracted public criticism from organisations including the NSW Council for Civil Liberties, the AIDS Council of NSW, the NSW Council of Social Service and Redfern Legal Centre (NSW Ombudsman, 2006). The role of these ‘third sector’ organisations in generating debate about the legality of the use of drug detection dogs for street-level policing was important in the policy development process. From 2001, these organisations vocally opposed the use of drug detection dogs on the basis that they constituted an invasion of privacy, harassment and an illegal search, and unduly targeted drug users rather than suppliers (NSW Ombudsman, 2006; Redfern Legal Centre, 2001). It was also suggested that the gay and lesbian community was being disproportionately targeted (due to the frequency of drug detection dog operations in areas with a high proportion of gay residents and venues, such as Darlinghurst), and that the use of dogs hampered harm minimisation measures as people were engaging in risky drug use strategies (such as consuming larger amounts, buying from unknown sources, and substituting to more potentially harmful but less easily detected drugs) so as to avoid detection (NSW Ombudsman, 2006; Redfern Legal Centre, 2001). The Redfern Legal Centre (2001) engaged in public advocacy on this issue, and provided support for test cases. One key case was Police v Darby.² On the 25 February 2001, Glen Darby was found in possession of a small amount of cannabis and methamphetamine after being searched following an indication by a drug detection dog, while standing outside an inner-city club (NSW Ombudsman, 2006). In the local court, the magistrate dismissed the charges and found that the drug detection dog’s ‘sniffing’ and ‘nudging’ had constituted an illegal search in the absence of reasonable suspicion. This decision was subsequently appealed to both the Supreme Court³ and the Court of Appeal⁴ before being returned to the local court, and eventually the Director of Public Prosecutions withdrew all charges. Not long after the Darby case, another case came before the courts.⁵ In this case, Philip Harris had been found in possession of cannabis and charged with possession of a prohibited drug, after being brought to the attention of police by a drug detection dog while at a Bryon Bay cafe. In court, Black QC DCJ relied on the principles enunciated in Darby v DPP by finding that the detection dog’s ‘nuzzling’ was not lawfully justified and the evidence of drug possession was therefore improperly obtained (for further discussion of these cases, see NSW Ombudsman, 2006).

The legal challenges mounted by the Darby and Harris cases precipitated discussion within the NSW Parliament. On 27 November 2001, the leader of the opposition, NSW Liberal Party leader Kerry Chikarovski, introduced a private member’s bill with the intention of clarifying the statutory basis for the use of drug detection dogs. The opposition’s bill was not supported by the government and on 6 December 2001, the newly appointed Minister for Police, Michael Costa, introduced his own ‘Police Powers (Drug Detection Dogs) Bill’. The government’s bill was very similar to the bill which had already been introduced by the leader of the opposition, however drug detection dogs had become a point of political contestation. It was suggested by the opposition that in introducing a second bill ‘the Government has been reluctant to give the Opposition the recognition it deserves for its initiative in relation to this legislation’ (NSW Government, 2001b, p. 19877). Throughout the second reading speeches, such political point-scoring and accusations of populism were rife (NSW Government, 2001b, 2001c). This issue was a political priority for the new Minister. On Costa’s first day as Minister for Police, he ‘promised to make lawful the use of drug sniffer dogs in random street searches if current legislation proved to be flawed’ (Kennedy, 2001, p. 8).

The Police Minister said the purpose of the government’s bill was ‘putting beyond doubt’ the capacity that police have to use drug detection dogs (NSW Government, 2001d, p. 19745). It was stated the bill came about ‘largely as a result of a decision by the Deputy Chief Magistrate who ruled against the use of sniffer dogs’ (NSW Government, 2001b, p. 19877). This bill was introduced for the explicit purpose of clarifying the law and extending search powers, thus allowing drug detection dogs to continue to be used for street-level policing, without the impediment of the ‘illegal search’ argument, which had been raised in the legal challenges. The Police Minister argued that the bill was designed ‘to recognise the need for police to use drug detection dogs to assist in identifying persons involved in the illicit drug trade and particularly those supplying prohibited drugs’ (i.e. it was designed to target drug traffickers). While Costa’s political rhetoric focussed on drug traffickers, it was acknowledged that the operational focus on street-level drug detection meant that low-level drug users may be targeted: ‘Let there be no confusion: if you carry drugs at such places you may be apprehended and dealt with according to law’ (NSW Government, 2001d, p. 19745).

While many members of parliament supported the bill (including members of the Coalition: NSW Government, 2001b, p. 19877), there was some opposition expressed, which reflected the concerns of civil liberties groups. Two independent members of parliament (not aligned to any political party) expressed concern in the Legislative Assembly. The Member for Bligh said:

This legislation has been developed in haste and without community consultation. […] The legislation is tough on police resources. It is not tough on crime. […] In March I raised concerns with police that the use of sniffer dogs was implemented without a policy framework or public debate, simply because resources were available following the Olympics—a leftover resource that needed to be used. This bill may establish a legal framework, but it does not set a policy that is integrated with the outcomes of the groundbreaking 1999 New South Wales Drug Summit, sponsored by this Parliament. (NSW Government, 2001b)

The Member for Manly expressed concern about the disproportionate impact of the bill:

The issue is whether we want to alienate a generation of young people who are basically users, and not suppliers or traffickers. (NSW Government, 2001b, p. 19881)

In the Legislative Council, the Australian Democrats, the Greens and other minor parties opposed the bill, primarily relying on the human rights and privacy arguments which had been previously raised by civil liberties groups. The Greens stated that the bill was ‘an outrageous and flagrant breach of civil liberties and it lessens our claim to live in a free and democratic society’ (NSW Government, 2001c, p. 20206).

The Police Powers (Drug Detection Dogs) Bill was assented on 14 December 2001. It was noted that the NSW Ombudsman would monitor the legislation over the first two years (NSW Government, 2001c). (Notably, as outlined below, it was many more years before the resulting report of the NSW Ombudsman was released). This legislative activity had quickly followed a by-election held in the seat of Auburn in Western Sydney (near Cabramatta), where the swing away from the sitting Labor government had been attributed to concern over crime in the area (S. Williams, 2002). Drug detection dogs had become a high profile issue within the law and order debate, which was reportedly ‘poised to dominate NSW politics […] as the Government and Opposition scramble to be seen as the toughest on crime before the next state election’ (Wainwright & Gibbs, 2001, p. 6). Police Minister Costa argued that the use of dogs was ‘aimed at smashing the back of drug lords’ (Wainwright & Gibbs, 2001, p. 6). This defence came from a newly appointed Minister who was already being criticised for his inexperience, and amid speculation that he did not have confidence in Police Commissioner Ryan (Wainwright & Gibbs, 2001; S. Williams, 2002).

Throughout this period from 2001 to 2002, the issue of drug detection dogs attracted increasing media attention. Of the 80 articles published about NSW Police use of drug detection dogs in major Australian news publications from 1994 to 2014, 28 were published from 2001 to 2002. Soon after being introduced, and in the midst of pending legal cases, the use of drug detection dogs gained support from some conservative media commentators (e.g. Akerman, 2001). However, other media reported on the ‘flood of complaints from distressed members of the public’ being investigated by the NSW Ombudsman (Gerard, 2001, p. 3). Specific police operations using drug detection dogs, and accounts of individual searches, became the subject of detailed media reports (e.g. Leech, 2001). At this time, NSW Police refused to comment publically about the legal and civil liberty issues, and was quoted as saying ‘The police dog unit is trying to keep a low profile because we don’t want to alarm people’ (Gerard, 2001, p. 3).

In February 2002, the Police Powers (Drug Detection Dogs) Act 2001 was implemented, and in May, the Drug Dog Regulations were gazetted. However, questions remained about how exactly police could operate within the Act. In December 2001, the Ministry for Police sought advice from the Crown Solicitor to clarify the precise geographical limits of where drug detection dogs could be used in licensed premises and on public streets. The Crown Solicitor confirmed that multiple interpretations of the Act were possible (this issue was subsequently the subject of recommendations arising from the Ombudsman’s Review: NSW Ombudsman, 2006). The implementation of the Act also coincided with a major NSW Police operation, ‘Operation Vikings’. This operation began in 2002 as a ‘significant HVP [High Visibility Policing] strategy targeting antisocial behaviour, alcohol related crime, street-level drug possession and traffic offences’ (Lawrence, 2002; NSW Police Force, 2009, p. 24). As significant budget resources were allocated in the lead up to the state election, this operation drew criticism (Gibbs, 2003) especially for its disproportionate targeting of specific groups (particularly the gay and lesbian community) (NUAA, 2014).

The media reported the first use of the drug detection dogs on Sydney streets under the new legislative powers in May 2002 (N. Williams, 2002). In May 2002 alone, nine articles were published in the Daily Telegraph, Sydney Morning Herald and Canberra Times reporting on drug detection dog operations in Sydney. These articles focussed on drug detection dogs patrolling high-crime areas as well as public transport (e.g. Lawrence, 2002). Within this media coverage, Inspector Peter Brooks from the NSW Police publically contradicted both the Police Minister and Premier, saying: ‘Dogs can’t discriminate between dealers and recreational users. Whether we find someone with one or 200 [pills] on them, we're pretty much obligated to take some action’ (N. Williams, 2002). The public quickly responded to these new policing strategies. A free mobile phone text-messaging service was established to alert subscribers to drug detection dog operations in their local area (Gibbs, 2002; NSW Council for Civil Liberties, 2002). This service was subsequently shut down by police, after ‘hundreds of thousands of people’ had signed up (Stapleton, 2004).

Drug detection dogs continued to be debated vociferously in Parliament (the issue is mentioned in Hansard on nine separate sitting days throughout 2002). In June 2002, the Greens brought a motion to disallow part 2 of the Police Powers (Drug Detection Dogs) Regulation 2002 and began to question the effectiveness of drug detection dogs:

The Premier’s only justification for using police dogs is that they are a ‘very useful tool’. Who says so? Where is the evidence? Can the Minister for Police tell us how these sniffer dogs are useful? He is quick with the photo opportunities, but what about some hard data about how our streets and transport routes have been made safer? It would be good to hear a few facts and figures about the quantities of drugs that have been taken from dealers. What about a cost analysis that will enable us to assess the effectiveness of the use of sniffer dogs? (NSW Government, 2002b, p. 2971)

These calls for evidence were more specific than concerns which had been raised in previous debates. Previously, opposition had been based on civil liberties issues and the potential unintended consequences of inadvertently targeting young people and street-level users in operations. At this time, the Ombudsman was reviewing the operations of several Acts, including the Police Powers (Drug Detection Dogs) Act (NSW Government, 2002c, p. 4208). However, before the findings of the review were available, legislative activity continued and the Police Powers (Drug Detection Dogs) Act 2001 became even more integrated into the laws of NSW. Powers to use drug detection dogs were extended through the Police Powers (Drug Detection in Border Areas Trial) Bill (assented on 8 July 2003), which allowed police to stop and search vehicles and employ drug detection dogs in these operations. Furthermore, the Law Enforcement (Powers and Responsibilities) Bill introduced in September 2002 brought together the police powers of six Acts of Parliament, including the drug detection dogs legislation. Some members of Parliament questioned whether the NSW Police Force were being given ‘draconian powers’ (NSW Government, 2002a, p. 7272).

In the lead up to the state election in March 2003, in which law and order issues were a central concern, tensions between the Minister for Police and the Police Commissioner came to a head and Police Commissioner Ryan resigned in April 2002 (S. Williams, 2002). In their analysis of the decade of reform following the Wood Royal Commission, Chan and Dixon (2007, p. 459) observed that ‘[o]ne significant development […] is the police organization’s loss of operational independence from government’. They noted that ‘the Police Minister ruthlessly [intervened] into a series of what would conventionally be considered operational matters’ (Chan & Dixon, 2007, p. 460). It was this interference into operational matters (often without consultation), which had become untenable for the Commissioner. Importantly for our interests, among the many operational matters ranging from staff appointments to new police uniforms into which the Police Minster’s office intervened was ‘the use of drug detection dogs’ (S. Williams, 2002, p. 319, emphasis added).

In summary, 2001 to 2003 was a critical time for both implementation and scale-up of drug detection dogs in NSW. The role of third sector organisations and the media in generating debate, and also the way that test cases precipitated rapid legislative response are notable. Drug detection dogs had gone from being a ‘leftover resource’ (NSW Government, 2001b) after the Sydney Olympic Games to a focus of political contestation as the government sought to be seen to take decisive action on illicit drug issues. But whether or not drug detection dogs were an effective tool was beginning to be questioned. The legislative activity throughout this period was rapid, and pre-empted the findings of the Ombudsman’s review (to which we now turn).

Mid- to late-2000s: Effectiveness questioned

In June 2006, much later than originally intended, the NSW Ombudsman published the ‘Review of the Police Powers (Drug Detection Dogs) Act 2001’ (NSW Ombudsman, 2006). The review ‘attracted unprecedented community interest’ (NSW Ombudsman, 2006). The report stated unequivocally:

The use of drug detection dogs has proven to be an ineffective tool for detecting drug dealers. Overwhelmingly, the use of drug detection dogs has led to public searches of individuals in which no drugs were found, or to the detection of (mostly young) adults in possession of very small amounts of cannabis for personal use. (Forward: NSW Ombudsman, 2006)

The Ombudsman reported that over the two-year review period, drug detection dogs were used in 470 police operations, making 10,211 indications. Illicit drugs were only found in 26% of searches following an indication. Generally small amounts of drugs were found (only 1.38% of all indications resulted in identifying a quantity of drugs which exceeded the threshold required for a ‘deemed supply’ charge). Only 19 cases were successfully prosecuted from all the indications (representing 0.19% of all drug detection dog indications). The report canvassed a range of complaints, concerns about privacy and civil liberties, and community anxieties, as well as the impact of drug detection dogs on the behaviour of people who use drugs. The Ombudsman concluded that ‘There is little or no evidence to support claims that drug detection dog operations deter drug use, reduce drug-related crime, or increase perceptions of public safety’ (NSW Ombudsman, 2006, p.viii).

The findings generated significant discussion before the General Purpose Standing Committee⁶ (Police Estimates) with the Acting Police Commissioner Andrew Scipione being questioned in detail about the report’s contents (NSW Government, 2006). Following the release of the report, civil liberties groups continued to publically question the use of drug detection dogs. It was suggested by media outlets that journalists were being prevented from reporting on drug detection dogs’ operations (Khoury, 2008) and that police were targeting solicitors and civil liberties campaigners who came to the assistance of others being searched (Gibson, 2008). Researchers were also beginning to publish work which was critical of drug detection dogs for illicit drugs policing, questioning their legal status and drawing attention to the adverse impacts of policing practices on people who use drugs (Dunn & Degenhardt, 2009; Griffith, 2012; Hickey et al., 2012; Marks, 2007; Meagher, 2009; Nabben, 2009; Race, 2009, 2011).

Debate about the effectiveness of drug detection dogs was reignited in the media in 2011. Although the total number of articles published from 2011 to 2012 (n = 15) was less than the total number published at the peak of media interest from 2001 to 2002, many of the articles published in this later period were replete with data and questioned the effectiveness of drug detection dogs. In December 2011, data were released showing that in the previous year, of the 15,779 searches conducted after drug dog identification, no drugs were found in 11,694 cases (Patty, 2011; Simmons, 2011). Greens MLC David Shoebridge said that ‘No test which has an 80 per cent error rate could be considered a reasonable basis on which to conduct an intrusive public search of a citizen’ (Patty, 2011). The NSW Police Force issued a statement in response, stating that ‘[s]niffer dogs are close to 100% accurate’ (NSW Police Force, 2011). Speculation and debate continued into the new year (e.g. Daily Telegraph, 2012; Howden, 2012).

In the period from 2006 to 2012, we can observe that very little changed in terms of drug detection dog policy. Most notably, the scathing Ombudsman’s review and subsequent debate about the dogs’ lack of effectiveness were not taken on board as drug detection dogs became embedded within the operations of the NSW Police.

2012 onwards: Kings Cross and expanded police powers

In 2012, police powers were again expanded. In April, following gang-related shootings in Sydney’s west, it was announced that police would be given powers to use drug detection dogs to patrol and enter tattoo parlours (Nadin, 2012). A suite of new police powers were announced in August in conjunction with a range of new restrictions on licensed venues in Kings Cross (O’Farrell, 2012). This included extension of the use of drug detection dogs to public spaces and railway lines (as seen in the Law Enforcement (Powers and Responsibilities) Amendment (Kings Cross and Railways Drug Detection) Bill, introduced to NSW Parliament in September 2012).

It was during discussion of this bill that a shift occurred in the way that the effectiveness of drug detection dogs was talked about in political debate, away from ‘effectiveness’ per se and towards ‘visual deterrence’. The Attorney General and Minister for Justice stated:

The Government does not judge the effectiveness of drug detection dogs solely based on the apprehension of drug traffickers. Apart from the benefit of using these dogs for specific operational objectives, their use offers many policing benefits, including creating a general deterrence and providing a visible response to drug-related crime. (NSW Government, 2012b, p. 15454, emphasis added)

The language of ‘visual deterrence’ began to be used to defend the use of drug detection dogs:

There is no doubt that the presence of police provides a visual deterrence and the presence or appearance of sniffer dogs provides a visual deterrence to those who may be in possession of drugs. (NSW Government, 2012a, p. 15715)

But despite this defence, the findings of the Ombudsman’s report were still continually raised by those opposed to the bill: ‘There is a pretty big question mark as to whether drug detection dogs are an effective tool at all’ (NSW Government, 2012a, p. 15714). Concern was again raised about the impact that the use of drug detection dogs on the streets of Kings Cross would have for harm minimisation policy and services such as the Medically Supervised Injecting Centre. It was feared that clients might be deterred from entering the Centre (which provides a space to inject drugs safely in the presence of medical staff) due to the presence of drug detection dogs on the streets outside (Nicholls, 2012). While both the government and opposition supported the bill, the Greens (including the Member for Balmain in the Legislative Assembly, and two members of the Legislative Council) spoke against it. Despite the opposition expressed, and the continuing vigorous debates surrounding whether or not drug detection dogs were effective, the bill was assented on 29 October 2012.

Concerns about police powers and the disproportionate targeting of the gay and lesbian community were raised again in 2013 when the use of drug detection dogs was publically criticised following incidents throughout the Mardi Gras festival. Approximately 2000 people marched on Oxford Street a week after Mardi Gras to protest police exceeding their powers. Following this protest, a report was released by Mardi Gras, the Gay and Lesbian Rights Lobby, the Inner City Legal Centre and ACON, which had among its recommendations that the use of drug detection dogs be brought to an end (Mardi Gras, Gay and Lesbian Rights Lobby, Inner City Legal Centre, & ACON, 2013).

The debate surrounding drug detection dogs was revisited in the NSW Parliament in 2014. The purpose of the Law Enforcement (Powers and Responsibilities) Amendment Bill introduced in May 2014 was to amend the legislation in light of a number of reviews and reports, including the Ombudsman’s review of the Police Powers (Drug Detection Dogs) Act, and the February 2009 review of certain functions conferred on police under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW Government, 2014a, p. 29133; 2014b, p. 29565). Civil liberties concerns were raised about proposed powers to search and extension of investigative time, and the government was criticised for ‘rushing legal changes through the Parliament, often to the beat of the Daily Telegraph’s drum’ (NSW Government, 2014a, p. 29142).

From November to December 2014, a series of articles were published drawing on data obtained via questions on notice by the NSW Greens, questioning the effectiveness of drug detection dogs and invasive strip-search practices (e.g. Corderoy, 2014). Drug law reform advocacy organisation Unharm (2014) launched a ‘Ditch the dogs’ campaign, gathering over 1000 signatures for a petition. Research released at this time also highlighted that Labradors (the breed of dog used by NSW Police) were not the most effective breed of dog for drug detection (Jezierski et al., 2014) and critically examined the multiple effects of such policing practices (Hughes et al., 2014; Race, 2014). NSW Police publically defended operational practices saying that ‘it was incorrect to say the dog program was inaccurate, as 80 per cent of identifications involved either the person carrying drugs or admitting past contact with them’ (Corderoy, 2014, emphasis added). NSW Police also engaged in positive public relations activities publicising the dog squad through a Facebook page and by disseminating pictures of newly named puppy recruits (e.g. Matheson, 2013).

From this description, we can observe that there was a discursive shift in the way the dogs’ ‘effectiveness’ was defended by political proponents and the Police Force alike. This observation opens many questions for future analysis, including critical questions of how ‘evidence’ is both constituted and validated in the policy process and used to legitimise decisions made (Lancaster, 2014).

Conclusion

Drawing on multiple data sources, this account describes how drug detection dogs came to be introduced in NSW, thus contextualising these developments within its historical and political milieu. Situated within this landscape, we can begin to see the ways in which the use of drug detection dogs is not a separate and distinct policing strategy, but one which is integrated within broader policing and illicit drugs policy discourse and has been employed for particular purposes at a particular point in history. Research examining the effectiveness or otherwise of drug detection dogs would be enriched by taking this context into account. Further analysis of the historical and political events we have described is required to better understand the roles and influence of policy actors and evidence, as well as the values and presuppositions underpinning decisions made.

Throughout the historical account, we have noted a series of ‘signposts’, which we suggest are ripe for future analysis. We have observed the way in which the Cabramatta Inquiry became a ‘tipping point’ following both the Wood Royal Commission and the NSW Drug Summit. This raises questions about how ‘windows of opportunity’ may open in drug policy processes, and why drug detection dogs was the solution chosen at this time within this political context. We have also noted the roles played by third-sector organisations and media, as well as the role of the judiciary, in raising questions about the use of drug detection dogs and generating public debate. How expert advice, independent review and the notion of ‘effectiveness’ are contested in a highly politicised policy domain like policing of illicit drugs could also be analysed using this account.

Overall, this historical and political account reveals the dynamic processes and contingency involved in the development and implementation of particular illicit drugs policing policies. As such, we hope that the historical account we have offered has the potential to form a valuable foundation for future research to explore how illicit drugs policing policy gets formed, and the conditions of possibility which shape the policy formulation process. As debate about drug detection dogs continues to play out in NSW Parliament, media and within the research literature, generating new insights into drugs policing policy processes is imperative.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/ or publication of this article: This project was funded by an Australian Research Council Discovery Project grant (DP140100219). The Drug Policy Modelling Program is funded by the Colonial Foundation Trust, and is located at the National Drug and Alcohol Research Centre, a research centre funded by the Australian Government. Alison Ritter is a recipient of a National Health and Medical Research Council Fellowship (APP1021988).

Notes

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