Recent statements issued by NSW Police indicate the 30th anniversary of Mardi Gras will be one of the most heavily policed in recent history. Quite expectedly, this has sparked a furore in the GLBTI community. The public relations-friendly position taken by event organisers on this issue has failed to engage with the community’s legitimate concerns surrounding the over-policing of GLBTI events.

These concerns are particularly directed at the utilisation of sniffer dogs on police operations. However, most of the criticisms I’ve heard voiced so far in this debate have revolved around the vague notion that the use of sniffer dogs is somehow a violation of a person’s civil liberties.

The use of sniffer dogs on police operations is regulated by Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The precursor to this legislation was first enacted in response to a magistrate’s finding at a Local Court level that dismissed a charge on the basis that detection by a sniffer dog constituted an illegal search.

With the start of this legislation, police were given the power to utilise sniffer dogs for the purposes of drug detection. While the legislation required police to obtain a warrant to conduct a search using a sniffer dog on private premises, the legislation authorised the use of sniffer dogs without warrants in public places such as trains and dance parties.

The NSW Ombudsman conducted a review on the use of sniffer dogs and released its findings in a report in 2006. This Ombudsman’s report remains the most thorough and cogent study of this issue to date. It is worthwhile examining one of the criticisms contained in the report because it calls into question whether this strategy achieves one of the orthodoxies of the “war against drugs” – that is, the targeting of dealers rather than small-time users.

It is clear that sniffer dogs target those unsophisticated users who are either forced to carry small quantities of drugs on public transport or, alternatively, consume drugs in public places. In fact, the Ombudsman’s report found that only in 1.38 percent of those instances where a sniffer dog indicated a positive reading was the person ultimately found to be in possession of a “deemed supply” of an illicit drug.

It is important that arguments which are verifiable with concrete data and grounded in policy considerations foreground our critiques of the use of sniffer dogs rather than some nebulous idea of civil liberties.

For info on your rights in relation to the use of sniffer dogs see www.nswccl.org.au/issues/sniffer_dogs.php.

Manoj Dias-Abey is a lawyer practising in one of Australia’s largest workplace relations law firms.

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