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Searches for volatile substances relating to police search

Police have different powers to search people for volatile substances depending on whether they believe the person to be under or over 18.

Police can exercise search powers without a warrant under the Drugs, Poisons and Controlled Substances Act 1981. Searches can be done in public or in a private place if the occupier consents to this (or the owner where there is no occupier).

Police have different powers depending on whether they believe the person to be under or over 18. Police are obliged to provide certain information before they carry out a search.

There is no requirement that people give their name and address to police under this legislation.

Protective services officers (PSOs) may search a person under the same circumstances as police, but only if the PSO is on duty in the vicinity of a designated place.

See s. 60BA—Drugs, Poisons and Controlled Substances Act 1981 (Vic) and 'Protective services officers—Where do PSOs operate?'

Searching a person under 18

Police or PSOs may, without warrant, search a person, vehicle, package or thing in the person's possession or control if they have reasonable belief that the person:

  • is under 18
  • has in their possession a volatile substance or item used for inhaling a volatile substance, and
  • is inhaling or intends to inhale a volatile substance.

Search for graffiti tools

If police of PSOs are searching someone younger than 18 under the Graffiti Prevention Act 2007 and they reasonably suspect that the person possesses the item because they have inhaled or are intending to inhale the substance (usually spray paint), they must deal with the person’s welfare under the Drugs, Poisons and Controlled Substances Act, not as an offence under the graffiti law.

Searching a person over 18

Police or PSOs may, without warrant, undertake a search of a person of any age, vehicle, package or thing in person's possession or control if they have reasonable belief that person intends to provide someone under 18 with:

  • a volatile substance, or
  • an item used to inhale a volatile substance.

It is an offence to sell a volatile substance for use as an inhalant.

See What is volatile substance use?

Preliminary obligations

Before undertaking any search, police or PSO must comply with the Drugs, Poisons and Controlled Substances Act’s requirements that they:

  • identify themselves (name, rank and place of duty, in writing if asked)
  • explain the law and their powers under that law, that is:
    • it is not an offence to inhale or posses a volatile substance or item used to inhale
    • that in certain circumstances the police may:
      • request a person to produce volatile substance or item used to inhale that is in the person's possession or control
      • conduct a search for volatile substances
      • use reasonable force to conduct this search
      • seize any volatile substance (or item used for inhaling a volatile substance) that is found, and
  • give the person the opportunity to voluntarily hand over any of the items sought.

Note: Police and PSOs do not have to comply with their preliminary obligations if they believe that the person is unable to understand information due to the effects of inhaling or if it is otherwise impractical.

Reasonable force

Irrespective of a person's age, police and PSOs may use such force as is reasonably necessary to conduct their searches. Where the person is under 18 police (or PSO) may also use reasonable force when apprehending or detaining a person according to section 60L of the Drugs, Poisons and Controlled Substances Act.

More information

Legislation

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

  • s. 60—other information that police must give prior to searching
  • s. 60D—police may use reasonable force; apprehension and detention provision
  • s. 60E—search of person under 18
  • s. 60F—search of person irrespective of their age if reasonable belief they intend to provide inhalant or accessory for inhaling to person under 18
  • s. 60G(1)—police to identify themselves before a search
  • s. 60G(2)—exception for identification requirement
  • s. 60H—information that must be given by police prior to a search
  • s. 60H(2)—exceptions
  • s. 60L—apprehension and detention

See Drugs, Poisons and Controlled Substances Act 1981 (Vic).

Drugs Poisons and Controlled Substances (Volatile Substances) Regulations 2014 (Vic)

  • r. 5—governs the manner in which police may conduct searches under ss. 60E or 60F

See Drugs, Poisons and Controlled Substances (Volatile Substances) Regulations 2014.

Graffiti Prevention Act 2007 (Vic)

  • s. 16—conduct of searches

See Graffiti Prevention Act 2007 (Vic).

Updated