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Drugs, Poisons and Controlled Substances
(Volatile Substances) Bill
Circulation Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purposes of the Act.
Clause 2 sets out the proposed commencement of the Act.
Sub-section (1) provides for the Act (except section 5) to come
into operation on a day to be proclaimed.
Sub-section (2) provides that if the Act has not been proclaimed
to come into operation before 1 July 2004, it will come into
operation on that day.
Sub-section (3) provides that clause 5 of the Bill comes into
operation on the second anniversary of the commencement of this
Bill.
Clause 3 amends the heading to Part IV of the Drugs, Poisons and
Controlled Substances Act 1981 and inserts a heading to create
a Division 1 of that Part.
Clause 4 inserts new Division 2 into Part IV of the Drugs, Poisons and
Controlled Substances Act 1981 after section 60.
New section 60A provides that the purpose of the new Division is
to protect the health and welfare of children. Further, the
Division does not create any offence to possess a volatile
substance or an item used to inhale a volatile substance or to
inhale a volatile substance.
New section 60B provides that a member of the police force must
have regard to the best interests of any child who is subject to any
of the powers of search, seizure, apprehension and detention
under the new Division.
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New section 60C provides that the police powers referred to in
the new Division may be exercised in any public place or on
private premises if the occupier consents to entry by the police.
If there is no occupier of those premises, the owner may consent
to entry.
New section 60D provides that a member of the police force may
use reasonable force when exercising the search and seizure
powers and the apprehension and detention powers created by
this Bill.
New section 60E provides that a member of the police force may,
without warrant, search a person, or search things in that person's
possession or control, for a volatile substance or an item used to
inhale a volatile substance. The member may only do so if he or
she reasonably suspects that the person is under 18 years of age,
possesses or has control of a volatile substance or an item used to
inhale a volatile substance and is inhaling or will inhale the
substance.
New section 60F provides that a member of the police force may
also search a person, or search things in that person's possession
or control, for a volatile substance or an item used to inhale a
volatile substance regardless of the person's age. The member
may only do so if he or she reasonably suspects that the person
intends to provide a volatile substance or an item to a person
under 18 years of age to inhale or use to inhale.
New section 60G provides that before a member of the police
force searches a person, the member must--
· inform the person of the member's name, rank and place
of duty; and
· provide that information in writing, if requested; and
· produce the member's identification, unless the member
is in uniform.
The new section also provides that it is not necessary for the
police to comply with this requirement if the member believes on
reasonable grounds that the person will not understand because of
intoxication or because it is otherwise impracticable to comply
with the requirement.
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New section 60H provides that, before commencing a search, a
member of the police force must--
· inform the person that it is not an offence to possess a
volatile substance or an item used to inhale a volatile
substance or to inhale a volatile substance, but that the
member has the power to search for and seize volatile
substances and items used to inhale them and may use
reasonable force to do so; and
· ask the person to produce any such substances or items
that he or she has in his or her possession.
The new section also provides that it is not necessary for the
police to comply with this requirement if the member believes on
reasonable grounds that the person will not understand because of
intoxication or because it is otherwise impracticable to comply
with the requirement.
New section 60I provides that, where a member of the police
force conducts a search and detects a volatile substance or an
item used to inhale a volatile substance, the member must, before
seizing the substance or item, ask the person why he or she is
carrying or possessing the substance or item. This will assist the
member of the police force in deciding whether there are
reasonable grounds for suspecting that the conditions required for
seizure exist (see new section 60J below).
The new section also provides that it is not necessary for the
police to comply with this requirement if the member believes on
reasonable grounds that the person will not understand because of
intoxication or because it is otherwise impracticable to comply
with the requirement.
New section 60J provides that a member of the police force may
seize a volatile substance or an item used to inhale a volatile
substance where the member has reasonable grounds for
suspecting that a person who has been searched--
· is under 18 years and is inhaling or will inhale a volatile
substance; or
· intends to provide the substance or item to a person
under 18 years to inhale or to use to inhale.
In forming the relevant suspicion, the member of the police force
must have regard to any explanation the person has offered for
his or her possession of the substance or item.
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New section 60K provides a similar seizure power to that in new
section 60J but in relation to circumstances where no explanation
has been given.
New section 60L provides that a member of the police force may
apprehend and detain a person who the member reasonably
believes--
· is under 18 years of age; and
· is inhaling or has recently inhaled a volatile substance;
and
· is likely by act or neglect to cause immediate serious
bodily harm to himself or herself or some other person.
Apprehension and detention of a person is not conditional upon a
search having first been conducted, or upon anything being
seized where a search has been conducted, or upon anything
being received in response to a request to produce.
The member must, if the person is able to understand or it is not
otherwise impracticable, inform a detained person that he or she
has not been arrested for an offence but is being detained in order
to prevent the person harming himself or herself or others.
New section 60M provides that a person who has been
apprehended and detained by a member of the police force under
section 60L must be released immediately upon it becoming
known that the person is not under 18 years. Also, the person
must be released if a member of the police force no longer has
grounds for believing that the person has recently inhaled a
volatile substance or that the person is likely by act or neglect to
cause immediate serious bodily harm to himself or herself or
some other person.
The new section also provides that a person who has been
apprehended and detained by a member of the police force under
this section must, as soon as practicable after being apprehended
and detained, be released into the care of a person who the
member reasonably believes is a suitable person to take care of
the detained person and who consents to taking care of the
person.
Examples of such persons include the person's parent or
guardian, or another adult family member or an employee of an
appropriate health or welfare agency. Members of the police
force are given a reasonably wide discretion with regard to this
matter in order that they may take appropriate action in a wide
variety of circumstances.
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If a member of the police force has taken reasonable steps to do
so but has been unable to release a detained person into the care
of a suitable person as provided, then the member may release or
continue to detain the person, subject to the requirement to
release a detained person where the grounds for detention no
longer apply (as provided for in sub-section (2) of this new
section).
A member of the police force must not detain a person under this
section in a police gaol, cell or lock-up. Nor may a member of
the police force interview or question a detained person in
relation to any known or alleged offence during detention under
the new Division.
New section 60N provides that after seizing a volatile substance
or an item used to inhale a volatile substance, or if a member of
the police force receives a substance or item from a person after a
request is made under new section 60H(1)(b), a member of the
police force must inform the person from whom the property was
received or seized that he or she has the right to have it returned.
It also provides that the person from whom the property was
received or seized may apply at the receiving or seizing member's
place of duty for return of the property within 7 days of the
receiving or seizing. However, the property may only be
returned to a person who is under 18 years of age if that person is
accompanied by a parent or guardian.
New section 60O provides that certain members of the police
force may dispose of or make safe any received or seized
property if it is a risk to health or safety.
New section 60P provides that any received or seized property
that has not been returned within the relevant 7 day period is
forfeited to the Crown, and may then be disposed of in any
manner the Minister thinks fit or sold, with the proceeds of sale
to be paid into the Consolidated Fund.
New section 60Q provides that a member of the police force must
make a written record, containing the prescribed particulars, if
under the new provisions he or she--
· conducts a search; or
· receives or seizes a volatile substance or item; or
· apprehends and detains a person; or
· disposes of or makes safe a volatile substance or item.
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New section 60R provides that a person who is subject to a
search or who is apprehended and detained or whose property is
received, seized or disposed of or made safe under the new
provisions may, within 1 year of the relevant action, request a
copy of the record of the action.
New section 60S provides that the Chief Commissioner of Police
must provide certain information relating to actions under this
new Division for inclusion in the Minister's annual report of
operations under the Financial Management Act 1994.
New section 60T provides that the Governor in Council may
make regulations regarding the manner in which searches and
seizures under the new Division may be carried out and
regarding the particulars to be included in records made under
new section 60Q.
It also provides for a general regulation making power.
Clause 5 is a "sunset" provision, which will cause the amendments
inserted into the Drugs, Poisons and Controlled Substances
Act 1981 by this Bill to be repealed 2 years after the
commencement of this Bill and repeals this Bill.
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