Drugs, Poisons and Controlled Substances (Volatile Substances) Act 2003 (Vic)

Drugs, Poisons and Controlled Substances (Volatile

Substances) Act 2003

Act No. 55/2003

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	2
3.	Heading to Part IV amended and heading to Division 1 inserted	2
4.	New Division 2 inserted	3
Division 2—Volatile Substances	3

60A.	Purpose of Division	3
60B.	Police to take into account the best interests of person
under 18 years of age	3
60C.	Where can police powers under this Division be
exercised?	3
60D.	Police may use reasonable force	4
60E.	Police may search person under 18 years of age without
warrant	4
60F.	Search of person irrespective of age without warrant	5
60G.	Before search, police to identify self	5
60H.	Before search, police to give information and request
production of substance or item	6
60I.	Request for explanation before seizure of volatile
substances and items used to inhale volatile substances	7
60J.	Seizure of volatile substances and items used to inhale
when explanation given	7
60K.	Seizure of volatile substances and items used to inhale
when no explanation given	8
60L.	Apprehension and detention	9
60M.	How long may a person be detained and where?	10
60N.	Return of seized or produced volatile substances and
items used to inhale volatile substances	12
60O.	Disposal or making safe of volatile substances and items
used to inhale volatile substances	13
60P.	Forfeiture to Crown	14
60Q.	Records concerning searches, seizure, receipt or disposal
of property, apprehensions and detentions	14

i

Section Page

60R.	Person may request record	16
60S.	Chief Commissioner to report on actions under this
Division	17
60T.	Regulations	19

5. Repeal of provisions relating to search, seizure and detention 19

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ENDNOTES 20

ii

Victoria

No. 55 of 2003

Drugs, Poisons and Controlled

Substances (Volatile Substances) Act

2003†

[Assented to 16 June 2003]

The Parliament of Victoria enacts as follows:

1. Purpose

The purpose of this Act is to amend the Drugs, enable members of the police force—

(a) to search persons without warrant in certain circumstances for the purpose of seizing volatile substances or items used to inhale volatile substances; and

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(b)

to apprehend and detain persons under from the effects of inhaling volatile substances.

2. Commencement

(1) Subject to sub-section (2), this Act (except

section 5) comes into operation on a day to be

proclaimed.

(2) If this Act (except section 5) does not come into

operation before 1 July 2004, it comes into

operation on that day.

(3) Section 5 comes into operation on the second

anniversary of the day that this Act (except that
section) comes into operation.

3.  Heading to Part IV amended and heading to Division 1 inserted

See:	(1) In the heading to Part IV of the Drugs, Poisons
Act No. 9719.
Reprint No. 6	and Controlled Substances Act 1981, after
as at
14 February	"SUBSTANCES" insert "AND SEARCH,
2002 and	SEIZURE AND DETENTION POWERS
amending Act
No. 11/2002.	RELATING TO VOLATILE SUBSTANCES".
LawToday:	(2) Before section 57 of the Drugs, Poisons and
dpc.vic.	Controlled Substances Act 1981 insert—
gov.au

"Division 1—Deleterious Substances".

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4. New Division 2 inserted

After section 60 of the Drugs, Poisons and Controlled Substances Act 1981 insert—

'Division 2—Volatile Substances

60A. Purpose of Division

(1) The purpose of this Division is to protect the health and welfare of persons under 18 years of age.

(2) Nothing in this Division makes it an offence or is to be taken to create an offence—

(a)	for a person to possess or have in the person's control a volatile substance or an item used to inhale a volatile substance; or
(b)	for a person to inhale a volatile substance.

60B. Police to take into account the best interests of person under 18 years of age

In the exercise of any powers under this
Division in relation to a person under
18 years of age, a member of the police force
must take into account the best interests of

the person.

60C. Where can police powers under this

Division be exercised?

(1) A member of the police force may only

exercise the powers under this Division in

relation to a person who is—

(a) in a public place; or

(b) on private premises, if consent to enter the premises is given to the member—

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(i)  by the occupier of those premises; or

(ii)  where there is no occupier of those premises, the owner of the premises.

(2) In this section, "public place" has the same meaning as it has in the Summary Offences Act 1966.

60D. Police may use reasonable force

A member of the police force may use such force as is reasonably necessary when—

(a)	conducting a search under section 60E or 60F;
(b)	seizing a volatile substance or an item used to inhale a volatile substance under section 60J or 60K;
(c)	apprehending and detaining a person under section 60L.

60E. Police may search person under 18 years of age without warrant

Subject to sections 60G and 60H, a member of the police force, without warrant, may search a person and any vehicle, package or thing in that person's possession or under his or her control for a volatile substance or an item used to inhale a volatile substance if the member has reasonable grounds for suspecting that the person—

(a) is under 18 years of age; and

(b) has in his or her possession or under his or her control a volatile substance or an item used to inhale a volatile substance; and

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(c) is inhaling or will inhale a volatile substance.

60F. Search of person irrespective of age without

warrant

(1) Subject to sections 60G and 60H, a member

of the police force, without warrant, may
search a person and any vehicle, package or
thing in that person's possession or under his
or her control for a volatile substance or an
item used to inhale a volatile substance if the
member has reasonable grounds for
suspecting that the person intends to
provide—

(a)	a volatile substance to a person under 18 years of age to inhale; or
(b)	an item to a person under 18 years of age to use to inhale a volatile substance.

(2) A member of the police force may search a person under sub-section (1) irrespective of the age of the person.

60G. Before search, police to identify self

(1) Subject to sub-section (2), before a member of the police force commences a search of a person under section 60E or 60F, the

member must—

(a)	inform the person of the member's name, rank and place of duty; and
(b)	if requested by the person, provide the information referred to in paragraph (a) in writing; and
(c)

produce the member's identification for member is in uniform.

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(2) A member of the police force is not required to comply with sub-section (1) if the member believes on reasonable grounds that—

(a) the person is unable to understand the information because of the effects of inhaling a volatile substance; or

(b) it is otherwise impracticable to do so.

60H. Before search, police to give information and request production of substance or item

(1) Subject to sub-section (2), before a member of the police force commences a search of a person under section 60E or 60F, the

member must—

(a)

inform the person that, although it is substance or an item used to inhale a volatile substance or to inhale a volatile substance, in certain circumstances and using reasonable force, the member may—

(i)  search a person for a volatile substance; and

(ii)  seize a volatile substance or item used to inhale a volatile substance that is in a person's possession or under a person's control; and

(b) request the person to produce to the member any volatile substance or item used to inhale a volatile substance that is in the person's possession or under the person's control.

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(2) A member of the police force is not required to comply with sub-section (1) if the member believes on reasonable grounds that—

(a) the person is unable to understand the information and request because of the effects of inhaling a volatile substance; or

(b) it is otherwise impracticable to do so.

60I. Request for explanation before seizure of

volatile substances and items used to inhale
volatile substances

(1) Subject to sub-section (2), if, during the

course of conducting a search of a person
under section 60E or 60F, a member of the
police force detects a volatile substance or
item used to inhale a volatile substance, the
member must ask the person why he or she is
carrying or possessing that volatile substance
or item.

(2) A member of the police force is not required to comply with sub-section (1) if the member believes on reasonable grounds that—

(a)	the person is unable to understand the request for the explanation referred to in that sub-section because of the
effects of inhaling a volatile substance; or

(b) it is otherwise impracticable to do so.

60J. Seizure of volatile substances and items

used to inhale when explanation given

A member of the police force may seize a volatile substance or an item used to inhale a volatile substance that is detected during the course of conducting a search under section 60E or 60F if, on hearing the explanation

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requested under section 60I, the member has
reasonable grounds for suspecting that the

person—

(a)	is under 18 years of age and is inhaling or will inhale a volatile substance; or
(b)

intends to provide the volatile 18 years of age to inhale; or

(c) intends to provide the item detected to a person under 18 years of age to use to inhale a volatile substance.

60K. Seizure of volatile substances and items

used to inhale when no explanation given

A member of the police force may seize a volatile substance or an item used to inhale a volatile substance that is detected during the course of conducting a search under section 60E or 60F if—

(a)	no explanation referred to in section 60I has been given; and
(b)	the member has reasonable grounds for suspecting that the person—

(i)  is under 18 years of age and is inhaling or will inhale a volatile substance; or

(ii)  intends to provide the volatile substance detected to a person under 18 years of age to inhale; or

(iii)  intends to provide the item detected to a person under 18 years of age to use to inhale a

volatile substance.

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60L. Apprehension and detention

(1) A member of the police force may apprehend

and detain a person if the member has
reasonable grounds for believing that the
person—

(a) is under 18 years of age; and

(b)	is inhaling a volatile substance or has recently inhaled a volatile substance; and
(c)	is likely by act or neglect to cause immediate serious bodily harm to himself or herself or to some other person.

(2) A member of the police force may apprehend

and detain a person under sub-section (1)
irrespective of whether—

(a)	the person was searched under section 60E or 60F; or
(b)	any volatile substance or item used to inhale a volatile substance—

(i)  was seized as a result of such a search; or

(ii)  was produced in accordance with a request under section 60H(1)(b) and received by a member of the police force.

(3) Subject to sub-section (4), on apprehending and detaining a person under sub-section (1) or as soon as practicable thereafter, a

member of the police force must inform the

person that—

(a) the person is not under arrest in relation to any alleged offence; and

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(b) the person is apprehended and detained with the intention of preventing the person causing immediate serious bodily harm to himself or herself or to some other person.

(4) A member of the police force is not required to comply with sub-section (3) if the member believes on reasonable grounds that—

(a) the person is unable to understand the information referred to in that sub- section because of the effects of inhaling a volatile substance; or

(b) it is otherwise impracticable to do so.

60M. How long may a person be detained and

where?

(1) A person who has been apprehended and

detained under section 60L must be released
immediately upon it becoming known to a
member of the police force that the person is

not under 18 years of age.

(2) A person who has been apprehended and

detained under section 60L and who is under
18 years of age may only be detained for as
long as a member of the police force has
reasonable grounds for believing that the

person—

(a)	has recently inhaled a volatile substance; and
(b)	is likely by act or neglect to cause immediate serious bodily harm to himself or herself or to some other person.

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(3) Subject to sub-section (2), as soon as

practicable after apprehending and detaining
under section 60L a person who is under
18 years of age, a member of the police force
must release the person into the care of a

suitable person who—

(a)	the member reasonably believes is capable of taking care of the detained person; and
(b)	consents to taking care of the detained person.

Note: Depending on the circumstances of each case,

a suitable person may include the detained person's parent, guardian or another adult family member or an employee of an
appropriate health or welfare agency.

(4) If a member of the police force, after taking

all reasonable steps, has been unable to
release the detained person into the care of a
suitable person in accordance with sub-
section (3), the member of the police force—

(a) may release the detained person; or

(b) subject to sub-section (2), may continue to detain that person.

(5) In taking an action under sub-section (4), a

member of the police force must take the
action which he or she reasonably believes is
the most appropriate in the circumstances.

(6) A member of the police force must not

detain a person under section 60L in—

(a) a police gaol within the meaning of the Corrections Act 1986; or

(b) a police cell or lock-up.

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(7) A member of the police force must not

interview or question a person who is
apprehended and detained under section 60L

in relation to any offence or alleged offence.

60N. Return of seized or produced volatile

substances and items used to inhale volatile

substances

(1) A member of the police force who—

(a)	receives a volatile substance or an item used to inhale a volatile substance which is produced in accordance with a request under section 60H(1)(b); or
(b)	seizes a volatile substance or an item used to inhale a volatile substance under section 60J or 60K—

must, as soon as practicable after receiving or seizing the volatile substance or an item used to inhale a volatile substance, inform the person from whom the volatile substance

or item was received or seized of his or her
right to have it returned.

(2) A person from whom a volatile substance or item used to inhale a volatile substance was received when it was produced in accordance

with a request under section 60H(1)(b) may apply at the place of duty of the member of the police force who received the volatile
substance or item for its return within 7 days
after it was so received.

(3) A person from whom a volatile substance or item used to inhale a volatile substance was seized under section 60J or 60K may apply at the place of duty of the member of the

police force who seized the volatile
substance or item for its return within 7 days
after it was seized.

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(4) A volatile substance or an item used to

inhale a volatile substance that is received by
a member of the police force when it was
produced in accordance with a request under
section 60H(1)(b) or seized under section
60J or 60K may only be returned to a person
under 18 years of age if the person is
accompanied by a parent or guardian when

collecting the volatile substance or item.

60O. Disposal or making safe of volatile

substances and items used to inhale volatile
substances

Despite section 60N, a volatile substance or an item used to inhale a volatile substance received when it was produced in accordance with a request under section 60H(1)(b) or seized under section 60J or 60K may be disposed of or made safe (as the case requires) if—

(a)	the member of the police force who received or seized the volatile substance or item believes that the disposal or making safe of that substance or item is necessary because of the risk to health or safety in removing it from the place of receipt or seizure; or
(b)	the officer in charge of the place of duty of the member of the police force who received or seized a volatile substance or an item used to inhale a volatile substance believes that the disposal or making safe of that substance or item is necessary because of the risk to health or safety in storing it.

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60P. Forfeiture to Crown

(1) A seized volatile substance or an item used

to inhale a volatile substance that is not
returned to the person from whom it was
seized within 7 days after being so seized is
forfeited to the Crown.

(2) A volatile substance or an item used to

inhale a volatile substance received by a member of the police force when it was produced in accordance with a request under
section 60H(1)(b) that is not returned to the
person from whom it was received within
7 days after being so received is forfeited to

the Crown.

(3) If any volatile substance or item used to

inhale a volatile substance is forfeited to the

Crown under sub-section (1) or (2)—

(a)	the Minister may direct that it be disposed of in any manner that the Minister thinks fit; and
(b)	if it is sold, the proceeds of the sale must be paid into the Consolidated Fund.

60Q. Records concerning searches, seizure,

receipt or disposal of property, apprehensions and detentions

(1) A member of the police force who conducts

a search under section 60E must make a
written record of the search containing the
prescribed particulars.

(2) A member of the police force who conducts

a search under section 60F must make a
written record of the search containing the

prescribed particulars.

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(3) A member of the police force who receives a volatile substance or an item used to inhale a volatile substance which is produced in

accordance with a request under section
60H(1)(b) must make a written record of the
receipt containing the prescribed particulars.

(4) A member of the police force who seizes a

volatile substance or an item used to inhale a
volatile substance under section 60J or 60K
must make a written record of the seizure
containing the prescribed particulars.

(5) A member of the police force who

apprehends and detains a person under
section 60L must make a written record of
the apprehension and detention containing
the prescribed particulars.

(6) A member of the police force who disposes

of or makes safe a volatile substance or an
item used to inhale a volatile substance under
section 60O must make a written record of
the disposal or making safe of the substance
or item containing the prescribed particulars.

(7) A record required to be made by this section must be made as soon as practicable—

(a)	in the case of a search, after the completion of the search; or
(b)	in the case of a volatile substance or an item used to inhale a volatile substance received when it was produced in
accordance with a request under section 60H(1)(b), after the substance or item was so received; or

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(c)	in the case of a seizure of a volatile substance or an item used to inhale a volatile substance under section 60J or 60K, after the substance or item was seized; or
(d)	in the case of an apprehension and detention under section 60L, after the person who was apprehended and detained is released in accordance with section 60M; or
(e)	in the case of the disposal or making safe of a volatile substance or an item used to inhale a volatile substance under section 60O, after the substance or item was disposed of or made safe.

60R. Person may request record

(1) A person who is subjected to a search under

section 60E or 60F is entitled, on request and without charge, to a copy of the record of the search if the request is made not later than
1 year after the date of the search.

(2) A person who produced a volatile substance or an item used to inhale a volatile substance in accordance with a request under section

60H(1)(b) to a member of the police force who received it is entitled, on request and without charge, to a copy of the record of the
receipt if the request is made not later than
1 year after the date of the production in
accordance with the request under section
60H(1)(b).

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(3) A person from whom a volatile substance or

an item used to inhale a volatile substance
was seized under section 60J or 60K is
entitled, on request and without charge, to a
copy of the record of the seizure if the
request is made not later than 1 year after the
date of the seizure.

(4) A person who is apprehended and detained

under section 60L is entitled, on request and without charge, to a copy of the record of the apprehension and detention if the request is
made not later than 1 year after the date of
apprehension and detention.

(5) A person whose property was disposed of or made safe under section 60O is entitled, on request and without charge, to a copy of the record of the disposal or making safe if the request is made not later than 1 year after the

date of the disposal or making safe.

(6) A request under sub-section (1), (2), (3), (4)

or (5) is to be made to the officer in charge
of the place of duty of the member of the
police force who searched the person,
received the substance or item produced in
accordance with the request under section
60H(1)(b), seized the substance or item,
apprehended and detained the person or
disposed of or made safe the substance or
item (as the case requires).

60S. Chief Commissioner to report on actions under this Division

(1) The Chief Commissioner of Police must

provide to the Minister for inclusion in the annual report of operations under Part 7 of the Financial Management Act 1994 a
report containing—

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(a)

the number of searches without warrant that financial year; and

(b)

the number of searches without warrant that financial year; and

(c) information about the number and type of volatile substances and items used to inhale a volatile substance seized as a

result of conducting those searches; and

(d)	information about the number and type of volatile substances and items used to inhale a volatile substance received by members of the police force when
produced in accordance with a request under section 60H(1)(b); and
(e)	information about the number and type of volatile substances and items used to inhale a volatile substance returned to

persons under section 60N; and

(f) information about the number and type of volatile substances and items used to inhale a volatile substance disposed of

or made safe under section 60O; and

(g) information about the number and type of volatile substances and items used to inhale a volatile substance forfeited to

the Crown under section 60P; and

(h) the number of persons apprehended and detained without warrant under section 60L during that financial year.

(2) A report provided under this section is not required to specify the exact type of each volatile substance or item used to inhale a volatile substance referred to in the report.

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60T. Regulations

(1) For the purposes of this Part, the Governor in

Council may make regulations for or with respect to—

(a)	the manner in which searches and seizures under this Division are to be carried out; and
(b)	particulars to be included in records made under section 60Q; and
(c)	any other matter or thing necessary or convenient to be prescribed for the purposes of this Part.

(2) Regulations made under this Part may—

(a) be of general or limited application;

(b)	differ according to differences in time, place or circumstance;
(c)	confer powers or discretions or impose duties on any person.'.

5.  Repeal of provisions relating to search, seizure and detention

(1) In the Drugs, Poisons and Controlled

Substances Act 1981—

(a) "AND SEARCH, SEIZURE AND

in the heading to Part IV omit the words VOLATILE SUBSTANCES";

(b) the heading to Division 1 of Part IV is repealed;

(c) Division 2 of Part IV is repealed.

(2) This Act is repealed.

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ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 7 May 2003

Legislative Council: 10 June 2003

The long title for the Bill for this Act was "to amend the Drugs, Poisons
and Controlled Substances Act 1981 to provide for search, seizure,
apprehension and detention powers in relation to volatile substances and
for other purposes."