Queensland Parliamentary Library · • aerosols (such as paints, deodorants, hairsprays, insect sprays, vegetable oil sprays for cooking and fabric protector sprays); • gases (such

Queensland Parliamentary Library

Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld): New Search, Seizure and Detention Powers to Tackle ‘Chroming’

The Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld) introduces amendments to, amongst other legislation, the Police Powers and Responsibilities Act 2000 (Qld) and the Vagrants, Gaming and Other Offences Act 1931 (Qld) in a bid to address volatile substance abuse.

The amendments reflect provisions in other jurisdictions and provide police officers with new search, seizure and detention powers in relation to persons who misuse volatile substances. A person will also be prohibited from selling volatile substances if they know or believe, on reasonable grounds, that the purchaser intends to inhale or ingest the substance or sell it to another person for inhalation or ingestion.

Renee Giskes

Research Brief No 2003/34

Queensland Parliamentary Library Research Publications and Resources Section

Ms Karen Sampford, Director (07) 3406 7116 Ms Nicolee Dixon, Senior Parliamentary Research Officer (07) 3406 7409 Ms Renee Giskes, Parliamentary Research Officer (07) 3406 7241

© Queensland Parliamentary Library, 2003

ISSN 1443-7902 ISBN 0 7345 2881 7 NOVEMBER 2003

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Clerk of the Parliament on behalf of the Parliament of Queensland.

Inquiries should be addressed to: Director, Research Publications & Resources Queensland Parliamentary Library Parliament House George Street, Brisbane QLD 4000 Ms Karen Sampford. (Tel: 07 3406 7116) Email: [email protected]

Information about Research Publications can be found on the Internet at: http://www.parliament.qld.gov.au/Parlib/Publications/publications.htm

http://www.parliament.qld.gov.au/Parlib/Publications/publications.htm

CONTENTS

1 INTRODUCTION.............................................................................................1

2 BACKGROUND................................................................................................2

2.1 NATURE OF INHALANT ABUSE ........................................................................2

2.2 STATISTICS RELATING TO INHALANT ABUSE...................................................3

2.2.1 Australian School Children Drug and Alcohol Survey (1999)..............3

2.2.2 National Drug Strategy Household Survey (2001)................................4

2.2.3 Indigenous Communities .......................................................................4

2.3 EFFECTS OF INHALANT ABUSE........................................................................5

2.3.1 Health Effects.........................................................................................5

2.3.2 Other Effects ..........................................................................................6

2.4 REASONS FOR INHALANT ABUSE.....................................................................6

2.5 INCREASE IN RECOGNITION OF INHALANT ABUSE AS A PROBLEM ...................7

2.6 MOVES TO ADDRESS INHALANT ABUSE IN QUEENSLAND ................................8

3 EXISTING LEGISLATIVE MEASURES IN QUEENSLAND ...................9

3.1 SEIZURE POWER .............................................................................................9

3.2 MOVING A CHILD TO A SAFE PLACE ..............................................................10

4 RELEVANT AMENDMENTS UNDER THE BILL ...................................10

4.1 AMENDMENT OF POLICE POWERS AND RESPONSIBILITIES ACT 2000 (QLD) .....10

4.1.1 Power to Search and Seize Potentially Harmful Things......................11

4.1.2 Dealing with Persons Affected by Potentially Harmful Things ..........12

4.1.3 Duties in Relation to Detained Persons ...............................................13

4.1.4 Expiry of Provisions and Review of Effectiveness of Trial ................14

4.2 AMENDMENT OF VAGRANTS, GAMING AND OTHER OFFENCES ACT 1931 (QLD)14

5 COMPARATIVE ANALYSIS .......................................................................15

5.1 VICTORIA..................................................................................................... 17

5.1.1 Background to the Amendments ......................................................... 17

5.1.2 Report of the Parliamentary Drugs and Crime Prevention Committee17

5.1.3 Drugs, Poisons and Controlled Substances Act 1981 (Vic)................ 18

5.2 WESTERN AUSTRALIA .................................................................................. 23

5.2.1 Apprehension and Detention Powers .................................................. 23

5.2.2 Search and Seizure Powers.................................................................. 25

5.3 AUSTRALIAN CAPITAL TERRITORY ............................................................. 26


5.3.2 Search and Seizure Powers.................................................................. 27

5.4 NEW SOUTH WALES.................................................................................... 28

5.5 TASMANIA................................................................................................... 29

5.6 NORTHERN TERRITORY ............................................................................... 29

5.6.1 Restrictions on Sale or Supply of Volatile Substances ....................... 29


5.7 SOUTH AUSTRALIA...................................................................................... 31

5.7.1 Restrictions on Sale or Supply of Volatile Substances ....................... 31

5.7.2 Graffiti Control .................................................................................... 31

5.8 LAWS PERTAINING TO INDIGENOUS COMMUNITIES ...................................... 31

APPENDIX A – MINISTERIAL MEDIA STATEMENTS .............................. 33

RECENT QPL RESEARCH PUBLICATIONS 2003........................................ 35

Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld) Page 1

1 INTRODUCTION

Volatile substance abuse1 involves the deliberate inhalation of the vapours of certain products for the purpose of intoxication. 2.6% of Australians have reported using inhalants for this purpose at some time during their life. Unlike other substance abuse, inhalant abuse is most predominant among younger adolescents and decreases with age. Significant health and other effects have been associated with the misuse of inhalants.

Currently, a police officer can only seize inhalants which are visible to the officer and which the officer reasonably suspects the person is inhaling, or about to inhale.2 Police officers do not have power to take persons who are intoxicated by inhalants to a place of safety for treatment or care. There are also no restrictions on the sale of inhalants in Queensland.

On 28 October 2003 the Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld) (Bill) was introduced into the Queensland Legislative Assembly by the Hon T McGrady MP, Minister for Police and Corrective Services.3 The Bill amends 11 Acts, including the Police Powers and Responsibilities Act 2000 (Qld) and the Vagrants, Gaming and Other Offences Act 1931 (Qld).

The key features of the amendments are to- • permit a police officer to search a person who appears to be affected by a

volatile substance, or who has possession of a volatile substance that the person has ingested or inhaled, is ingesting or inhaling or is about to ingest or inhale, for the purpose of seizing that substance;

• allow a police officer, in certain locations and for a trial period, to detain a person who is intoxicated by a volatile substance for the purpose of taking that person to a place of safety for treatment or care; and

• prohibit the sale of volatile substances if a person knows or believes, on reasonable grounds, that the purchaser intends to inhale or ingest the substance or sell the substance to another person for inhalation or ingestion.

1 Also referred to as inhalant abuse or chroming.

2 Police Powers and Responsibilities Act 2000 (Qld), s 371A.

3 The Hon T McGrady MP is also Minister Assisting the Premier on the Carpentaria Minerals Province.

Page 2 Queensland Parliamentary Library

The amendments are modelled on legislation in other jurisdictions. The detention power closely reflects the approach taken in Victoria, Western Australia and Tasmania. The sale of volatile substances in circumstances related to inhalant abuse is also restricted in the Northern Territory and South Australia.

2 BACKGROUND

2.1 NATURE OF INHALANT ABUSE

Volatile substances release chemical vapours at room temperature which, if inhaled, may have a range of health and other effects. Inhalant abuse is the deliberate inhalation of these vapours for the purpose of intoxication. In Australia, approximately 250 widely available household products have been identified as containing potentially intoxicating inhalable solvents.4

Volatile substance abuse involves the use of- • volatile solvents (such as paint thinners and removers, glues, dry-cleaning

fluids, degreasers, petrol, contact adhesives, plastic cement, correction fluid and felt-tip markers);

• aerosols (such as paints, deodorants, hairsprays, insect sprays, vegetable oil sprays for cooking and fabric protector sprays);

• gases (such as nitrous oxide found in whipped cream dispensers, butane cigarette lighters, bottled domestic gas and cylindrical propane gas); and

• nitrates (which relax muscles and are used as sexual enhancers).5

The volatile substances may be inhaled from an open container, a plastic bag or a cloth soaked in the substance, or sprayed directly into the nose or mouth.

‘Chroming’ is a colloquial term used to refer to inhalant abuse generally, however it is a particular form of the abuse which involves spraying chrome paint from an aerosol can into a plastic bag and the vapour from the bag being inhaled.

4 Victoria. Drugs and Crime Prevention Committee, Inquiry into the Inhalation of Volatile

Substances, Final Report, September 2002, p 15, http://www.parliament.vic.gov.au/dcpc/Reports%20in%20PDF/VSA%20Report_www.pdf.

5 Inquiry into the Inhalation of Volatile Substances, pp 16-17.

http://www.parliament.vic.gov.au/dcpc/Reports%20in%20PDF/VSA%20Report_www.pdf


2.2 STATISTICS RELATING TO INHALANT ABUSE

Research in relation to inhalant abuse in Australia refers primarily to- • the 1999 Australian School Children Drug and Alcohol Survey;6 and • the 2001 National Drug Strategy Household Survey.7

Inhalant abuse in indigenous communities is also disproportionate in comparison to the rest of society.

2.2.1 Australian School Children Drug and Alcohol Survey (1999)

The key findings of the survey were- • use of inhalants was more common among younger students than older

students, unlike the pattern for other substances; • there were no significant differences in usage by males and females; • 26% of students had used inhalants at some time (19% in the last year, 11%

in the last month and 7% in the last week); • of the 26% of students who had used inhalants, this comprised 33% of 12

year olds and 16% of 17 year olds; • half of the students who had used inhalants in the last year had done so on

only one or two occasions (46% of males and 50% of females), 22% of males and 24% of females had done so on three to five occasions and 18% of males and 14% of females had done so on ten or more occasions;

• recent use of inhalants decreased with age, with 10% of 12 year olds having used in the last week compared to 2% of 17 year olds; and

• there was no change between 1996 and 1999 in the proportion of students reporting to have used inhalants in their lifetime or in the month prior to the survey.

6 This was the first national survey of students to obtain data about illicit drugs. 25,000 school

children aged 12 to 17 years from randomly selected government and independent schools were surveyed. Commonwealth Department of Health and Aged Care, National Drug Strategy Unit, Australian Secondary Students’ Use of Over-The-Counter and Illicit Substances in 1999, June 2001, http://www.health.gov.au/pubhlth/publicat/document/mono46.pdf. Refer in particular to pp 2, 17 and 18.

7 The survey was conducted by the Australian Institute of Health and Welfare and involved 27,000 participants aged 14 years and over. Australian Institute of Health and Welfare, 2001 National Drug Strategy Household Survey, Detailed Findings, http://www.aihw.gov.au/publications/phe/ndshs01df/ndshs01df.pdf. Refer in particular to Chapter 14, Inhalants.

http://www.health.gov.au/pubhlth/publicat/document/mono46.pdf

http://www.aihw.gov.au/publications/phe/ndshs01df/ndshs01df.pdf


2.2.2 National Drug Strategy Household Survey (2001)

The key findings of the survey were- • the average age at which Australians first used inhalants was 17.6 years,

which was the youngest first time use compared with the other illicit drugs; • 2.6% of Australians had used inhalants at some time, with males (3.3%)

being more likely than females (2.0%) to have used; • 0.4% of Australians aged 14 years and over had used inhalants in the last 12

months (in Queensland, this figure was 0.3%);8 • those in the 20-29 years age group were most likely to have used inhalants; • 47.7% of those who had used inhalants in the last 12 months (‘recent

users’) had used three or more times during the year; • approximately 61% of recent users obtained their inhalants from a friend or

acquaintance and approximately 19% bought inhalants from a shop; • users typically had one ‘hit’ on a day they used inhalants; • approximately 75% of recent users used at their own or at a friend’s house,

27% at private parties or dance parties, 11% at public establishments, 12% at work or an educational institution, 9% in public places and 6% in a vehicle; and

• 36% of recent users had not used another drug at same time as an inhalant and, if they did, 46% used alcohol and 41% used marijuana/cannabis.

In 1995, 2.2% of Australians and 3.1% of Queenslanders had used inhalants during their lifetime. In 1998, these figures increased to 3.8% of Australians and 4.2% of Queenslanders. In terms of recent use of inhalants, 0.4% of Australians and 0.7% of Queenslanders in 1995 had used inhalants in the last 12 months. In 1998, these figures increased to 0.9% of Australians and 0.8% of Queenslanders.9

2.2.3 Indigenous Communities

There are anecdotal suggestions that about 7% of the indigenous population has abused inhalants.10 In 2001, the Victorian Department of Human Services reported

8 Australian Institute of Health and Welfare, 2001 National Drug Strategy Household Survey,

State and Territory Supplement, August 2002, p 8.

9 Australian Institute of Health and Welfare, 1998 National Drug Strategy Household Survey, Queensland Results, p 5.

10 Roberta Mancuso, ‘Spotlight on inhalant abuse’, Townsville Bulletin, 7 July 2003, p 2.


that more than 25% of clients seeking treatment for inhalant abuse were from Aboriginal or Torres Strait Island backgrounds.11

2.3 EFFECTS OF INHALANT ABUSE

2.3.1 Health Effects

The generally acknowledged short-term health effects of inhalant abuse include a feeling of wellbeing, confusion, drowsiness, aggression, enhanced risk-taking, loss of inhibition, sexual promiscuity,12 loss of muscular coordination, incoherence, slurred speech, vomiting and hallucinations.13

The generally acknowledged long-term health effects include a chronic headache, sinusitis, diminished cognitive functions, tinnitus, ataxia (lack of muscle coordination), a chronic or frequent cough, chest pain or angina, nosebleeds, extreme tiredness or weakness, increased nasal secretions, red and watery eyes, shortness of breath, indigestion, depression, anxiety, stomach ulcers, dizziness and damage to the brain and nervous system.14

Chronic exposure may cause significant damage to the heart, lungs, liver and kidneys. Some of these effects may be partially reversible when inhalation is stopped, and others may be irreversible.15

‘Sudden sniffing death syndrome’, resulting from heart failure, has been reported if a person does strenuous exercise or has a sudden fright immediately after inhalation.16

11 Hon R Hulls MP, Attorney-General, Drugs, Poisons and Controlled Substances (Volatile

Substances) Bill 2003 (Vic), Second Reading Speech, Legislative Assembly, Victorian Parliamentary Debates, 7 May 2003, pp 1488-1492, p 1489.

12 John Whitehall, Director of Neonatology, Townsville Hospital, ‘Generation at risk (chrome victim babies’, Townsville Bulletin, 16 April 2004, p 10.

13 Inquiry into the Inhalation of Volatile Substances, p 25.



16 Queensland. Commission for Children and Young People, Volatile Substance Misuse in Queensland, September 2002, p 11, http://www.childcomm.qld.gov.au/publications/pdfs/vsm_report_120902.pdf.

http://www.childcomm.qld.gov.au/publications/pdfs/vsm_report_120902.pdf


There are disturbing reports that some babies born to inhalant abusers have been born prematurely, pathologically small and with facial defects, head abnormalities and malformed brains.17

Other incidental health effects (such as broken bones) are associated with the risky and violent behaviour of users when they are intoxicated. Withdrawal symptoms have also been reported when users cease the habit.18

2.3.2 Other Effects

Inhalant abuse has been reported to ‘fuel crime’,19 increase risk-taking behaviour, cause behavioural problems and affect a user’s education and ability to secure and maintain employment.

The abuse of inhalants also poses a risk to the wider community. A young woman was jailed over a horrific accident in August 2001 in which her car ploughed on to a crowded Gold Coast footpath killing a Brisbane schoolgirl and seriously injuring many others. The woman had been inhaling lighter fluid fumes only moments before the accident.20

In June 2002, a 17 year old girl was found collapsed in Hervey Bay’s botanical gardens, surrounded by aerosol cans. The girl later died, leaving behind a two year old daughter who was found with her in the gardens.21

2.4 REASONS FOR INHALANT ABUSE

The following have been identified as possible reasons for inhalant abuse- • the low cost and accessibility of the substances, which are lawful to buy;22 • initial pleasant physical effects of euphoria and a rapid ‘high’ or ‘rush’

which resembles alcohol intoxication;23

17 ‘Evidence shows malformed brains in paint addicts’ babies’, ABC News Online Regional, 11

April 2003; John Whitehall, ‘Generation at risk (chrome victim babies)’.


19 ‘Chroming “massive problem”’, Gold Coast Bulletin, 17 July 2003, p 8.

20 ‘Baby kept me alive, says jailed teenager’, Courier Mail, 27 April 2002.

21 Editorial: Urgent need for action on inhalants, Courier Mail, 23 July 2002.

22 ‘Chroming “massive problem”’.


• experimentation out of curiosity,24 for ‘reputation enhancement’,25 ignorance26 or boredom;27 and

• homelessness,28 dysfunctional families or family breakdown29 and poverty.30

There have also been concerning reports from the Northern Territory of children chroming not “for the thrill of it” but to “dull their hunger and cold”.31

2.5 INCREASE IN RECOGNITION OF INHALANT ABUSE AS A PROBLEM

There is increasing public concern about the prevalence and effects of inhalant abuse and it has been extensively reported as a problem in some parts of Queensland.32

Drug-Arm chief executive Dennis Young has said that “we see solvent use as becoming a major issue across the State. A lot of young people in these




26 That is, if it was harmful it would be illegal. Inquiry into the Inhalation of Volatile Substances, p 49.

27 ‘Boredom’ has been linked to unemployment, poor self-esteem, lack of appropriate alternative activities, relationship difficulties, homelessness, loneliness and sense of disconnection or alienation. Inquiry into the Inhalation of Volatile Substances, p 50.

28 Steven Wardill, ‘Police powers boosted to swoop on chroming’, Courier Mail, 28 October 2003, p 4.

29 This may involve alcohol abuse, domestic violence or child protection issues. Nathan Scholz, ‘Children as young as seven inhaling’, Courier Mail, 9 July 2003; p 5; Leanne Edmistone, ‘Where the heart is’, Courier Mail, 15 April 2004, p 14.


31 Stuart Rintoul, ‘PM listens to Pearson’s thunder’, Australian, 26 July 2003, quoting Ms Muriel Cadd, director of the Aboriginal Child Care Agency in Victoria.

32 These areas include, but are not limited to, Townsville, the Gold Coast, parts of Brisbane, Cairns and Rockhampton.


marginalised areas need a lot of help and it’s difficult to get help to those who need it, particularly when the substances aren’t illegal”.33

There have been reports of children as young as seven chroming and that police feel ‘hamstrung’ trying to help them. Although police officers have power to confiscate the substances, within hours the youngsters replace the confiscated products and are inhaling again. Police officers describe it as “frustrating” that chronic users can not be deterred from chroming or referred to detoxification centres.34

Police officers also report resorting to charging youths with offensive behaviour in a bid to bring them before the justice system so that they can be introduced to counselling and rehabilitation programs.35

The nation’s first national conference on inhalant abuse, conducted by the Australian Institute of Criminology, was held in Townsville in July 2003 and provided a forum for practitioners, researchers, policy-makers and community groups involved with inhalant misuse to discuss the topic, share knowledge and develop strategies to address the issue.36

2.6 MOVES TO ADDRESS INHALANT ABUSE IN QUEENSLAND

Examples of non-legislative measures in Queensland to address inhalant abuse include- • moves for the introduction of a retailers’ code of practice regarding the

display and sale of commonly abused products; • some communities and retailers arranging for the removal of spray cans and

methylated spirits from their shelves. For example, one discount chain store in Mount Isa that removed the products reported it had previously sold up to 800 cans of spray paint per week, mostly to children aged between 10 and 16;37

• a significant decrease in the number of users in Charters Towers through an approach which involves retailers reducing access to solvents, the

33 Nathan Scholz, ‘New laws will fight boozing in public’, Courier Mail, 10 May 2003.

34 Nathan Scholz, ‘Children as young as seven inhaling’.

35 ‘Court bid to tackle sniffers’, Courier Mail, 20 July 2002.

36 Papers from the conference are available at http://www.aic.gov.au/conferences/2003-inhalant/.

37 ‘‘Zombie’ sprays canned by stores’, Australian, 3 October 2002.

http://www.aic.gov.au/conferences/2003-inhalant/


monitoring of areas used by inhalant abusers, educating schoolchildren about the dangers of solvent abuse, having night patrols and enlisting the help of the community to identify at-risk children;38 and

• a zero-tolerance counselling and education program in Ipswich.39

The Queensland Commission for Children and Young People released a report in September 2002 on volatile substance misuse in Queensland.40 The report did not make recommendations for legislative change; however, it focussed on a ‘community engagement strategy’ which involves communities taking ownership of the problem and collaborating with local stakeholders to develop solutions which are adapted to the local circumstances and available resources.

3 EXISTING LEGISLATIVE MEASURES IN QUEENSLAND

3.1 SEIZURE POWER

Section 371A of the Police Powers and Responsibilities Act 2000 (Qld) applies if a police officer finds a person in possession of a ‘potentially harmful thing’ in circumstances in which the officer reasonably suspects the person is inhaling, or is about to inhale, the thing (s 371A(1)).

‘Potentially harmful thing’ is defined to mean a thing that a person may lawfully possess and that is, or contains, a substance that may be harmful to a person if inhaled. Examples include glue, paint or a solvent (s 371A(5)).

The police officer may ask the person to explain why they are in possession of the potentially harmful thing (s 371A(2)). If the person does not give a reasonable explanation, the police officer may seize the thing (s 371A(3)). Upon seizure, the thing is forfeited to the State (s 371A(4)).

38 ‘Chroming crisis – personal care fixes Charters problem’, Townsville Bulletin, 9 July 2003, p 6.

39 ‘Bracks cops spray for failure to honour paint-sniff pledge’, Australian, 18 February 2002.

40 Volatile Substance Misuse in Queensland.


3.2 MOVING A CHILD TO A SAFE PLACE

Section 21 of the Child Protection Act 1999 (Qld)41 applies if- • an authorised officer or police officer reasonably believes a child who is

under 12 years is at risk of harm but does not consider it necessary to take the child into the chief executive’s custody to ensure the child’s protection; and

• a parent or other member of the child’s family is not present at the place where the child is and, after reasonable inquiries, the officer can not contact a parent or other member of the child’s family (s 21(1)).

The officer may move the child to a safe place and make arrangements for the child’s care at the place (s 21(2)). As soon as practicable after moving the child, the officer must- • take reasonable steps to tell at least one of the child’s parents or a family

member of the whereabouts of the child; and • if the child is moved by a police officer, tell the chief executive that the

child has been moved to a safe place and where the child has been moved to (s 21(3)).

The child may be cared for at the place under these arrangements until the child’s parents or family members resume or assume the child’s care (s 21 (4)).

4 RELEVANT AMENDMENTS UNDER THE BILL

The provisions of the Bill relevant to inhalant abuse amend- • the Police Powers and Responsibilities Act 2000 (Qld); and • the Vagrants, Gaming and Other Offences Act 1931 (Qld).

4.1 AMENDMENT OF POLICE POWERS AND RESPONSIBILITIES ACT 2000 (QLD)

Part 2 of the Bill amends the Police Powers and Responsibilities Act 2000 (Qld). The amendments relevant to inhalant abuse are in clauses 13 and 14 and will

41 The Commission for Children and Young People considered that section 21 of the Child

Protection Act 1999 (Qld) may be of some limited use in circumstances of inhalant abuse by a child (Volatile Substance Misuse in Queensland, pp 19-20).


commence on a day to be fixed by proclamation, which is expected to be before July 2004.42

Clause 13 replaces the existing section 371A and inserts search, seizure and detention powers in new sections 371A to 371F. Clause 14 inserts a new definition of ‘potentially harmful thing’.

4.1.1 Power to Search and Seize Potentially Harmful Things

The new section 371A will apply if a police officer- • finds a person in circumstances in which the police officer reasonably

suspects the person is in possession of a potentially harmful thing the person has ingested or inhaled, is ingesting or inhaling, or is about to ingest or inhale (for example, the person may be found by the police officer with paint on their lips); or

• finds a person in possession of a potentially harmful thing in circumstances in which the police officer reasonably suspects the person has ingested or inhaled, is ingesting or inhaling, or is about to ingest or inhale, the thing (new s 371A(1)).

‘Potentially harmful thing’ is more expansively defined- • to mean a thing that a person may lawfully possess that is, or contains, a

substance that may be harmful to a person if ingested or inhaled (for example, glue, paint or a solvent);

• to include methylated spirits; and • not to include a thing intended by its manufacturer to be inhaled or ingested

by a person using it.

The police officer may search the person and anything in the person’s possession to find out whether the person is in possession of a potentially harmful thing (new s 371A(2)).

If the person is in possession of a such a thing, the police officer may ask the person to explain why the person has possession of the thing (new s 371A(3)). If a reasonable explanation is not given, the police officer may seize the thing (new section 371A(4)), upon which it is forfeited to the State (new s 371A(6)).43

42 Hon P Beattie MP, Premier and Minister for Trade, ‘New powers will help “chroming” kids’,

Media Statement, 27 October 2003. A copy of the media statement is attached as appendix A to this research brief.

43 In these circumstances, the person will not be entitled to a receipt for the seized property under section 380 of the Police Powers and Responsibilities Act 2000 (Qld) (new s 371A(7)).


Possession of a potentially harmful thing for the purpose of inhaling or ingesting it will not be a reasonable explanation for its possession (new s 371A(5)).

The new section 371A is not associated with the commission of an offence. Rather, the possession of a potentially harmful thing for the purpose of inhaling or ingesting it has the consequences provided for in the section.44

The new search power has been provided for the purpose of ensuring that all potentially harmful things in a person’s possession may be seized in order to reduce danger to that person.45

4.1.2 Dealing with Persons Affected by Potentially Harmful Things

The new section 371B provides that it is lawful for a police officer to detain a person for the purpose of taking the person to a ‘place of safety’ (new s 371B(3)).

The section applies only to a person at a ‘declared locality’ if, because of the way the person is behaving and other relevant indicators (such as the presence of spray paint cans near the person), the police officer is satisfied that the person is affected by the ingestion or inhalation of a potentially harmful thing (new s 371B(1)).

A ‘declared locality’ will be a locality which is declared under the regulation (new s 371B(4)). It is anticipated that these areas will be parts of inner-Brisbane, Townsville, Cairns and Mount Isa.46

A person may be detained under this section only if- • it is appropriate for the person to be taken to a place (other than a police

establishment or police station); and • the police officer considers the place is a place at which the person can

receive the treatment or care necessary to enable them to recover safely from the effects of the potentially harmful thing (a ‘place of safety’) (new s 371B(2)).

A place of safety may be- • a hospital, if the detained person needs medial attention;

44 Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld),

Explanatory Notes, p 9.

45 Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld), Explanatory Notes, p 9.

46 Hon P Beattie MP, Media Statement.


• a vehicle used to transport persons to a place of safety which is under the control of someone other than a police officer (such as an ambulance); or

• the detained person’s home, or the home of a relative or friend, if there is no likelihood of domestic violence or associated domestic violence47 happening at the place because of the person’s condition or the person is not subject to a domestic violence order preventing the person from entering or remaining at the place (examples to new s 371B(2)).

The amendments are made not to provide police officers with “some sort of clandestine power to detain people”48 but as a “protective strategy”49 in the interests of the welfare of an intoxicated person with the intent of providing, where necessary, immediate medical care to the person.50

4.1.3 Duties in Relation to Detained Persons

The new section 371C provides that it is the duty of the police officer who detains a person to, at the earliest reasonable opportunity- • take the person to a place of safety; and • release the person at the place of safety (new s 371C(1)),

unless the police officer is satisfied- • a person at a place of safety refuses, or is unable, to provide care for the

detained person; • the detained person’s behaviour may pose a risk of harm, including but not

limited to an act of domestic violence or associated domestic violence, to other persons at a place of safety; or

• the police officer is unable to find a place of safety that is willing to provide care for the detained person (new s 371C(2)).

If the new section 371C does not apply because of section 371C(2), the detained person must be released (new s 371C(3)).

47 ‘Domestic violence’ and ‘associated domestic violence’ are defined in the Domestic and

Family Violence Protection Act 1989 (Qld), ss 11(1) and 21(1).

48 Hon T McGrady MP, Minister for Police and Corrective Services and Minister Assisting the Premier on the Carpentaria Minerals Province, Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld), Second Reading Speech, Queensland Parliamentary Debates, 28 October 2003, pp 4361-4366, p 4365.

49 Hon P Beattie, Media Statement.

50 Hon T McGrady MP, Second Reading Speech, p 4365.


As soon as practicable after a detained person is released, whether at a place of safety or otherwise, the police officer must enter certain prescribed particulars in a register (new s 371C(6)). The purpose of the register is to allow for pattens of abuse to be determined and for the trial to be properly evaluated.51

Before releasing a detained person at a place of safety, the police officer must ensure that the person apparently in possession or in charge of the place provides a signed undertaking in the approved form to care for the detained person (new s 371C(4)).

A person may voluntarily leave a place of safety (new s 371C(5)). The new section 371D makes it clear that a person who is taken to a place of safety is under no compulsion to remain there, unless another Act requires otherwise.

4.1.4 Expiry of Provisions and Review of Effectiveness of Trial

The Crime and Misconduct Commission must keep the operation of the new detention powers in sections 371B to 371D under review for nine months after they commence and provide the Minister with a report of the results of the review as soon as practicable after the end of that time (new s 371E). The new sections 371B to 371E will expire one year after they commence; however a regulation may extend their operation for periods of up to one year (new s 371F).

Cabinet will then consider whether the trial should be extended throughout Queensland. Guidelines will also be developed by the Police Commissioner to ensure police officers understand that the trial is designed to keep young people out of the criminal justice system.52

4.2 AMENDMENT OF VAGRANTS, GAMING AND OTHER OFFENCES ACT 1931 (QLD)

Part 12 of the Bill amends the Vagrants, Gaming and Other Offences Act 1931 (Qld) and will commence on 1 April 2004.53 The amendment relating to inhalant abuse is contained in clause 53, which inserts a new section 37D.



53 Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld), cl 2.


The new section 37D provides that a person (the ‘seller’) must not sell a potentially harmful thing to another person if the seller knows or believes, on reasonable grounds, that the other person intends to- • inhale or ingest the thing; or • sell the thing to another person for inhalation or ingestion, whether by that

person or someone else.

For example, a shopkeeper who stores methylated spirits in a refrigerator without a legitimate need to do so may be taken as knowing that the methylated spirits are intended for ingestion by a person.54

‘Sell’ is defined to include- • sell by wholesale, retail or auction; • supply in trade or commerce or under an arrangement; • agree, attempt or offer to sell; • keep or expose for sale; and • cause or permit to be sold.

‘Potentially harmful thing’ is defined in identical terms to the new expanded definition to be inserted in the Police Powers and Responsibilities Act 2000 (Qld).

A maximum penalty of 25 penalty units ($1,875)55 or three months’ imprisonment applies for a first offence, and 50 penalty units ($3,750) or one year imprisonment for a second or subsequent offence.

For the purposes of section 46 of the Anti-Discrimination Act 1991 (Qld),56 a seller will not be taken to discriminate against a person only because the seller refuses to sell a potentially harmful thing to the person because the new section 37D.

5 COMPARATIVE ANALYSIS

The new search, seizure and detention powers introduced by the Bill are closely modelled on the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which in turn was modelled on the Protective Custody Act 2000 (WA).

54 Hon T McGrady MP, Second Reading Speech, p 4365.

55 Penalties and Sentences Act 1992 (Qld), s 5.

56 Section 46 of the Anti-Discrimination Act 1991 (Qld) prohibits discrimination by a person who supplies goods or services.


The key difference between the Victorian legislation and the Bill is that the search and seizure powers in Victoria, although capable of exercise against all persons irrespective of their age, are limited to circumstances aimed at preventing persons under 18 years of age from inhaling volatile substances. A further point of departure is that the apprehension and detention powers in Victoria apply only to persons under 18 years of age.

Both children and adults may be apprehended and detained under the Western Australian legislation. The powers may be exercised by ‘authorised persons’, who are not necessarily police officers. In terms of children, the search and seizure powers extend to any child who is in a public place and consuming or inhaling, or about to consume or inhale, an intoxicant and who is likely to become intoxicated if the intoxicant is not seized. The search and seizure powers in terms of adults are exercisable only after the adult is intoxicated and has been apprehended.

The Australian Capital Territory has provisions allowing for the apprehension and detention of intoxicated persons and the taking of those persons to appropriate care facilities. The provisions were amended to specifically refer to certain volatile substances by which a person may become intoxicated. The search and seizure powers apply only to apprehended persons, and extend not only to police officers but also carers at appropriate facilities.

New South Wales, Tasmania and the Northern Territory have provisions for the detention and release into care of intoxicated persons, however it is uncertain whether these provisions extend to persons affected by volatile substances. The definitions of ‘intoxicated person’ (in New South Wales) and ‘intoxicated’ (in Tasmania and the Northern Territory) do not specifically refer to volatile substances.

The Northern Territory and South Australia have legislation restricting the sale or supply of volatile substances in circumstances related to inhalant abuse. South Australia also restricts the sale of cans of spray paint to children, however the motivating purpose of these provisions relates to graffiti control rather than inhalant abuse.

In an attempt to address inhalant abuse in indigenous communities, particularly petrol sniffing, laws have been enacted in various jurisdictions which are specific to certain communities.


5.1 VICTORIA

5.1.1 Background to the Amendments

Amendments to Victorian legislation to address inhalant abuse had their impetus in public outrage in early 2002 about reports that a Victorian welfare agency had a policy allowing children to sniff paint and glue fumes on its premises.57

The legislative amendments were also predated by the following actions- • distribution of a retailers’ kit in July 2002 which was based on a voluntary

code encouraging the responsible sale of volatile substances; • release of ‘inhalant management guidelines’ to health and welfare workers

in February 2003; • commissioning the CSIRO to undertake a feasibility study to determine

whether bittering agents could be combined with commonly abused solvent products to make them unpalatable to inhale; and

• a reference to the Victorian Parliament’s Drugs and Crime Prevention Committee in April 2001 to inquire into the inhalation of volatile substances, which culminated in the release of a final report in September 2002.58

5.1.2 Report of the Parliamentary Drugs and Crime Prevention Committee

The report of the Victorian Parliament’s Drug and Crime Prevention Committee inquiry into the inhalation of volatile substances was tabled in September 200259 and contained a recommendation, supported by the government, that police be given apprehension, search and seizure powers in relation to volatile substance abuse60 similar to those already in operation in Western Australia.

57 The relevant welfare agency was Berry Street. ‘Agency halts supervised ‘chroming’’, Age, 23

January 2002.

58 Hon R Hulls MP, Second Reading Speech, p 1489.

59 Inquiry into the Inhalation of Volatile Substances.



The Victorian government acted on this recommendation in June 2003 by amending the Drugs, Poisons and Controlled Substances Act 1981 (Vic).61 The relevant provisions will come into operation on the earlier of the date they are proclaimed into force62 or 1 July 2004. The amendments are part of a two year trial.63

5.1.3 Drugs, Poisons and Controlled Substances Act 1981 (Vic)

The Drugs, Poisons and Controlled Substances Act 1981 (Vic) was amended to enable police officers to- • search persons without warrant in certain circumstances for the purpose of

seizing volatile substances or items used to inhale volatile substances; and • apprehend and detain certain persons under 18 years of age to protect them

and others from the effects of inhaling volatile substances.

‘Volatile substance’ is defined as a plastic solvent, adhesive cement, cleaning agent, glue, dope, nail polish remover, lighter fluid, gasoline or any other volatile product derived from petroleum, paint thinner, lacquer thinner, aerosol propellant or anaesthetic gas, and any substance declared by the Governor in Council to be a volatile substance (s 57).

The powers of police officers under these provisions may only be exercised in relation to a person who is in a public place or on private premises if the occupier or owner of the premises consents to entry by the police officer (s 60C).

A police officer is authorised to use such force as is reasonably necessary in exercising the powers under these provisions (s 60D).

Purpose of the Provisions

The purpose of the provisions is to protect the health and welfare of persons under 18 years of age.64 It is not an offence for a person to-

61 Amended by the Drugs, Poisons and Controlled Substances (Volatile Substances) Act 2003

(Vic).

62 The provisions have not yet been proclaimed into force.

63 Drugs, Poisons and Controlled Substances (Volatile Substances) Act 2003 (Vic), s 2.

64 This seems to be based on research that has “consistently found that abuse of volatile substances is concentrated among adolescents” (Hon R Hulls MP, Second Reading Speech, p 1488).


• possess a volatile substance or an item used to inhale a volatile substance; or

• inhale a volatile substance (s 60A).

In the exercise of any powers under these provisions in relation to a person under 18 years of age, a police officer must take into account the best interests of the person (s 60B).

Search Powers

The search powers given to police officers are targeted at preventing persons under 18 years of age from inhaling volatile substances and differ depending on the age of the person to be searched.

A police officer may, without warrant, search a person and any vehicle, package or thing in the person’s possession or control for a volatile substance or an item used to inhale a volatile substance if the police officer has reasonable grounds for suspecting that the person- • is under 18 years of age; • has possession or control of a volatile substance or an item to inhale a

volatile substance; and • is inhaling, or will inhale, a volatile substance (s 60E).

A police officer may also, without a warrant, search any person (irrespective of their age) and any vehicle, package or thing in that person’s possession or control for a volatile substance or an item used to inhale a volatile substance if the police officer has reasonable grounds for suspecting that the person intends to provide to a person under 18 years of age- • a volatile substance to inhale; or • an item to use to inhale a volatile substance (s 60F).

Before conducting a search in either of these circumstances the police officer must- • identify themselves by name, rank and place of duty (in writing if

requested); • show their identification (if not in uniform); • inform the person that although it is not an offence to inhale a volatile

substance, or to possess a volatile substance or an item used to inhale a volatile substance, the officer may, in certain circumstances and using reasonable force, search the person and seize a volatile substance or an item used to inhale a volatile substance that is in the person’s possession or control; and


• request production of any volatile substance that is in the person’s possession or control (ss 60G and 60H).65

If, while conducting a search, the police officer detects a volatile substance or an item used to inhale a volatile substance, the officer must ask the person why he or she is carrying or possessing that volatile substance or item (s 60I).66

Seizure Power

The seizure power is also aimed at preventing persons under 18 years of age from inhaling volatile substances.

Upon hearing an explanation, or in circumstances where no explanation has been given, the police officer may seize a volatile substance or an item used to inhale a volatile substance that is detected during a search if the officer has reasonable grounds for suspecting that the person- • is under 18 years of age and is inhaling, or will inhale, a volatile substance;

or • intends to provide the volatile substance or item to a person under 18 years

of age to inhale or use to inhale a volatile substance (ss 60K and 60L).

A police officer who seizes a volatile substance or an item used to inhale a volatile substance, or to whom such a thing is produced, must as soon as practicable inform the person of his or her right to have it returned (s 60N(1)). A thing that is not returned within seven days after seizure or production is forfeited to the State (s 60P). Return of such a thing to a person under 18 years of age may occur only if the person is accompanied by a parent or guardian (s 60N(4)).

In circumstances where storage of the thing seized of produced poses a risk to health or safety, the thing may be disposed of (s 60O).

Apprehension and Detention Powers

The apprehension and detention powers extend only to persons under 18 years of age.

65 The police officer must do so unless the officer believes on reasonable grounds that the person

is unable to understand the information because of the effects of inhaling a volatile substance or it is otherwise impracticable to do so.

66 The police officer must do so unless the officer believes on reasonable grounds that the person is unable to understand the information because of the effects of inhaling a volatile substance or it is otherwise impracticable to do so.


A police officer may apprehend and detain a person if the officer has reasonable grounds for believing that the person- • is under 18 years of age; • is inhaling, or has recently inhaled, a volatile substance; and • is likely to cause immediate serious bodily harm to themselves or to

someone else (s 60L(1)).

A person may be apprehended and detained irrespective of whether they were searched or any volatile substance or item used to inhale a volatile substance was seized or produced (s 60L(2)).

Upon apprehending and detaining the person, or as soon as practicable thereafter, the police officer must inform the person that they- • are not under arrest; and • are apprehended and detained with the intention of preventing them causing

immediate serious bodily harm to themselves or someone else (ss 60L(3) and (4)).67

A person who has been apprehended and detained must be immediately released upon it becoming known to a police officer that the person is not under 18 years of age (s 60M(1)).

In all other cases, a person may be detained only for as long as a police officer has reasonable grounds for believing that the person has recently inhaled a volatile substance and is likely to cause immediate serious bodily harm to themselves or someone else (s 60M(2)).

As soon as practicable after being apprehended and detained, the person must be released into the care of a suitable person (such as a parent, guardian, other adult family member or employee of an appropriate health or welfare agency) who the police officer reasonably believes is capable of taking care of the detained person and who consents to taking care of the detained person (s 60M(3)).

The apprehension and detention powers were seen as only part of the solution to the problem of volatile substance abuse. The other involves the health and welfare agencies in supporting the police interventions in volatile substance abuse by young people.68

67 The police officer must do so unless the officer believes on reasonable grounds that the person

is unable to understand the information because of the effects of inhaling a volatile substance or it is otherwise impracticable to do so.



If, after taking all reasonable steps, a police officer is unable to release the detained person into the care of a suitable person, the police officer may release the detained person or continue to detain them, whichever the officer reasonably believes is the most appropriate in the circumstances (ss 60M(4) and (5)).

A person must not be detained in a police gaol, cell or lock-up and must not be interviewed or questioned in relation to any offence (ss 60M(6) and (7)).

Certain Records to be Maintained

Written records must be kept by a police officer of- • a search; • the production or seizure of a volatile substance or item used to inhale a

volatile substance; • the apprehension or detention of a person; and • the disposal or making safe of a volatile substance or item to inhale a

volatile substance (s 60Q).

A copy of these records is available, upon request and without charge, to the person the subject of the search, seizure or apprehension and detention (s 60R).

Chief Commissioner to Report on Actions

The Chief Commissioner of Police must provide to the Minister a report containing the following information in respect of a particular financial year- • the number of searches conducted on persons both under and over 18 years

of age; • the number and type of volatile substances and items used to inhale a

volatile substance that were produced or seized; • the number and type of volatile substances and items used to inhale a

volatile substance returned to persons, made safe or disposed of, or forfeited to the State; and

• the number of persons apprehended and detained.


5.2 WESTERN AUSTRALIA

The Protective Custody Act 2000 (WA) commenced on 1 January 2001 and gives certain powers to ‘authorised officers’69 in relation to intoxicated persons which may be exercised without a warrant (s 22).

‘Intoxicated’ means affected by, or apparently affected by, an intoxicant to such an extent that there is a significant impairment of judgment or behaviour (s 3). ‘Intoxicant’ is defined to mean alcohol or a drug, or volatile or other substance, capable of intoxicating a person (s 3).

5.2.1 Apprehension and Detention Powers

An authorised officer may apprehend a person who is in a public place or trespassing on private property if the officer reasonably suspects that the person is intoxicated and needs to be apprehended to protect the health or safety of the person or any other person, or to prevent the person causing serious damage to property (s 6(1)).

Reasonable force and assistance may be used in such apprehension (s 6(2)). The officer must also record the date and time of the apprehension (s 6(3)).

An apprehended person may be detained- • only whilst they are intoxicated; and • for no longer than is necessary to protect the health or safety of the person

or any other person, or to prevent the person causing serious damage to property (ss 7(1)-(3)).

The detention may, however, continue if the person is detained in a police station or lock-up and a police officer decides it would not be in the best interests of the person to be released between the hours of midnight and 7.30am (s 7(4)).

An appropriate record of release must be made (s 15).

Apprehended Children

If a child is apprehended, relevant provisions of the Child Welfare Act 1947 (WA) also apply, particularly in relation to the authorized officer making inquiries as to

69 ‘Authorised officer’ is defined in section 3 to mean a community officer who may be appointed

under the Act (who performs their functions voluntarily and for no pay), a police officer or a security officer as defined in the Public Transport Authority Act 2003 (WA).


whether or not it may be necessary to apply to the court for a declaration that the child is in need of care and protection.

As soon as practicable after the apprehension of a child, and giving paramount consideration to the safety and welfare of the child, the authorised officer must release the child- • into the care of the child’s parent or legal guardian; • into the care of a person whom the officer reasonably believes is a

responsible person capable of taking care of the child and who consents to taking care of the child; or

• if the officer is unable to comply with either of the above, into the care of the person in charge of an ‘appropriate facility’70 (ss 11(1) and (2)).

Apprehended Adults

As soon as practicable after the apprehension of an adult, the authorized officer must release the adult into the care of- • another person who applies for the adult’s release, whom the apprehended

person does not object being released to and whom the officer reasonably believes is capable of taking care of the adult (s 13(1)); or

• the person in charge of an appropriate facility (s 12(1)).

If the officer refuses to release an apprehended adult to a person who has applied for the adult’s release, because the officer does not believe the applicant is capable of taking care of the adult, the applicant may apply to a JP to have the decision reviewed (s 13(2)).

Provisions relevant to all Apprehended Persons

An apprehended person must not be detained in a police station or lock-up unless exceptional circumstances exist (ss 11 (5) and 12(4)).

An apprehended person must not be- • questioned in relation to any offence he or she is suspected of committing; • subjected to any procedure the purpose of which is to obtain information

that may be used for forensic purposes; and • charged with an offence (s 24(1)).

70 ‘Appropriate facility’ is defined in section 3 to mean an approved place to which the person

may be taken in accordance with a notice published by the Minister in the Gazette.


If an apprehended person needs a medical examination, an authorised officer must arrange for the person to be examined by a suitably qualified person. The officer must continue detaining the apprehended person unless the person is referred for examination by a psychiatrist or the practitioner directs that the person be left in his or her charge. The officer must record certain details relating to the medical examination (s 10).

An apprehended person may request to be brought before a JP so that an application can be made to the JP for their release (s 17). A person must also be brought before a JP if, eight hours after their apprehension, the authorized officer who is detaining the person reasonably believes that it is not possible to release the person (s 18). In either of these circumstances, the JP must- • direct that the person be released; or • give the officer who has custody of the detained person such directions to

ensure the health and safety of the person as the JP thinks fit, including- • if the apprehended person does not object, a direction that the person be

released into the care of a person capable of taking care of the person; • a direction that the person be released into the care of the person in

charge of an appropriate facility; or • a direction that the person continue to be detained (s 19(1)).

A person who has been apprehended may, within 30 days after their release, apply to the equivalent of a Magistrates’ Court for a declaration that at the time of their apprehension they were not intoxicated. Such a declaration does not, however, establish that the apprehension was unlawful (s 20).

5.2.2 Search and Seizure Powers

An authorized officer may, using reasonable force, search an apprehended person, and any thing on or with the person, for any thing that may be seized. The search must be conducted by an authorized officer of the same sex as the detained person (s 8).

Any intoxicant and any article (including any drug prescribed for the person) that could endanger the health or safety of the person or any other person may be seized. An intoxicant which is a volatile substance may be destroyed by the officer if the officer reasonably suspects that if it is returned to the person, the person is likely to use it to become intoxicated. Any seizure, and how the seized thing is dealt with, must be recorded (s 9). A seized thing that is not destroyed must be kept for safe keeping and returned to the apprehended person (s 14).

In the case of a child who is in a public place, an authorized officer may seize an intoxicant from the child if- • the child is consuming or inhaling the intoxicant; or


• the officer reasonably suspects that the child is about to consume or inhale the intoxicant,

and the officer reasonably suspects that the child is likely to become intoxicated if the intoxicant is not seized. The intoxicant may be seized even if the child is not apprehended or intoxicated, and it may be destroyed (s 5).

5.3 AUSTRALIAN CAPITAL TERRITORY

The Intoxicated Persons Care and Protection Act 1994 (ACT)71 provides certain search, seizure and apprehension and detention powers to police officers in relation to intoxicated persons.

‘Intoxicated’ is defined to mean apparently under the influence of alcohol, another drug or substance, or a combination of alcohol, drugs or substances. Examples of ‘substances’ are glue, petrol or another solvent (s 3).


A police officer may take a person who is in a public place into custody and detain them if the officer believes, on reasonable grounds, that the person is intoxicated and, because of that intoxication, is- • behaving in a disorderly manner; • behaving in a manner likely to case injury to himself, herself, or another

person, or damage to any property; or • is incapable of protecting himself or herself from physical harm (s 4(1)).

A person may be taken into custody only if the officer is satisfied that there is no other reasonable alternative for the person’s care and protection (s 4(2)).

A detained person must be released upon the earlier of eight hours after they were detained or when they ceases to be intoxicated (s 4(3)). A police officer must not allow a person who is detained to remain at a police station in which the person was detained for more than twelve hours after the person is first detained (s 4(4)).

A police officer may release a person from detention if, in the officer’s opinion, it is reasonable to do so. A police officer will be taken to have acted reasonably if the officer releases the person into the care of the manager of a ‘licensed place’ (ss

71 Relevant amendments were inserted by the Intoxicated Persons (Care and Protection)

(Amendment) Act 1997 (ACT), which commenced on 10 November 1997. This was further amended in September 2001 to include certain volatile substances in the substances that may result in a person being intoxicated (Crimes Legislation Amendment Act 2001 (ACT)).


4(5) and (6)). ‘Licensed places’ is defined to mean a place at which a licensee is licensed to provide a service that provides immediate, short-term care for intoxicated persons (other than a hospital or other medical facility) (s 3).

When releasing a person from custody into a licensed place, the police officer must give the manager a written admission statement which states- • the name and date of birth of the intoxicated person (if known); • the time and date the person was detained; • an itemised list of any articles taken from the person; • confirmation that the officer has returned those articles to the person; and • such further information relating to the intoxicated person as the officer

believes on reasonable grounds will assist the manager in caring for the person (s 6).

Upon admission to a licensed place, an intoxicated person must be informed of their right to leave the place at any time and that they will be given access to facilities, and adequate opportunity, to contact a ‘responsible person’ or other appropriate person (s 7). ). The person may also object to being provided with care at a licensed place (s 12).

‘Responsible person’ is defined to include a relative, guardian or friend of the intoxicated person who has attained the age of 18 years, or a solicitor acting on behalf of the intoxicated person (s 3).

If an intoxicated person who, in the opinion of a carer at the licensed place, is a danger to themselves, another person or property leaves, or is about to leave, the carer must notify the police (s 9).

A carer must also arrange for an intoxicated person to be transferred to the emergency department of a hospital if the carer is satisfied that the person requires, or may require, medical treatment (s 10).

A licensee must not allow a person admitted to a licensed place to remain at the place for more than 15 hours (s 11).

5.3.2 Search and Seizure Powers

A police officer may search a person who is taken into custody and take possession of any articles found in their possession. A detained person is entitled to the return of any articles taken from him or her upon release from detention.

A carer at a licensed place may search an intoxicated person where the carer believes on reasonable grounds that the person does not object to the search (s 6A). A carer who is conducting such a search must take possession of any articles found in the possession of the intoxicated person where the carer reasonably believes that


the intoxicated person does not object and taking possession is necessary for the protection of the intoxicated person or other persons at the licensed place or for the security of those articles (s 6B). A list must be prepared of the articles taken into safekeeping (s 6C) and the articles must be returned to the intoxicated person upon their departure from the licensed place (s 6D).

5.4 NEW SOUTH WALES

The relevant provisions of the Intoxicated Persons Act 1979 (NSW)72 refer to an ‘intoxicated person’, which is defined to mean a person who appears to be seriously affected by alcohol or another drug or a combination of drugs (s 3).

The definition does not specifically refer to volatile substances and there has been case law ruling that volatile substances are not ‘drugs’. Accordingly, it is uncertain whether the provisions extend to persons affected by volatile substances.73

The provisions allow a police officer to detain an intoxicated person found in a public place who is- • behaving in a disorderly manner or in a manner likely to cause injury to the

person or another person or damage to property; or • in need of physical protection because the person is intoxicated (s 5(1)).

A person may not be detained under these provisions because of behaviour that constitutes an offence under any law (s 5(2)).

A detained person must be taken to, and released into the care of, a responsible person willing immediately to undertake the care of the person (such as a friend, family member or an official or member of staff of a government or non-government organisation or facility providing welfare or alcohol or drug rehabilitation services) (s 5(3)).

A detained person may be taken to and detained in a police station, or a detention centre under the Childrens (Detention Centres) Act 1987 (NSW), if- • it is necessary to do so temporarily for the purpose of finding a responsible

person willing to undertake the care of the person;

72 This Act will be repealed and replaced by the Law Enforcement (Powers and Responsibilities)

Act 2002 (NSW), which was assented to on 29 November 2002. The new Act has not yet been proclaimed into force. The provisions in the new Act reflect those in the Intoxicated Persons Act 1979 (NSW).



• a responsible person cannot be found to take care of the person, or the person is not willing to be released into the care of a responsible person and it is impracticable to take the person home; or

• the person is behaving, or is likely to behave, so violently that a responsible person would not be capable of taking care of and controlling the person (s 5(4)).

A detained person may be searched and any personal belonging found in their possession removed (s 6).

5.5 TASMANIA

Tasmania amended the Police Offences Act 1935 (Tas) in 2000 to allow for the detention without arrest of intoxicated persons and their removal to a place of safety or into the care of a responsible person. Similar to New South Wales, ‘intoxicated’ is defined to mean under the influence of alcohol, another drug or any combination of drugs,74 and does not specifically refer to volatile substances.

The inhalation of volatile substances was not referred to in the Second Reading Speech of the amending Act,75 and the Act was amended for the purpose of decriminalising public drunkenness.

5.6 NORTHERN TERRITORY

5.6.1 Restrictions on Sale or Supply of Volatile Substances

The Misuse of Drugs Act 1996 (NT) provides that a person who sells or supplies a volatile substance to another person and who knows or ought to know that the other person intends to use the substance by administering it to him or herself or another person, or to sell or supply it to another person for use by the other person to administer it to himself or herself or to another person, is guilty of an offence which is punishable by a penalty of $2,000 or two years’ imprisonment (s 18).

‘Volatile substance’ is extensively defined to mean plastic solvent, adhesive cement, cleaning agent, glue, dope, nail polish remover, lighter fluid, gasoline or any other volatile product derived from petroleum, paint thinner, lacquer thinner,

74 Police Offences Act 1935 (Tas), s 4.

75 The amending Act was the Police Offences Amendment (Public Drunkenness) Act 2000 (Tas).


aerosol propellant or anaesthetic gas, or a substance declared to be a volatile substance by the Minister by notice in the Gazette (s 3).


The Police Administration Act 1978 (NT) allows for the apprehension and detention of ‘intoxicated’ persons.

‘Intoxicated’ is defined to mean seriously affected by alcohol or a drug (s 127A). Therefore, the powers do not specifically refer to volatile substances.

If a police officer has reasonable grounds for believing that a person is intoxicated and that the person is in a public place or trespassing on private property, the officer may, without warrant, apprehend and take the person into custody (s 128(1)).

The police officer may then search the person and remove for safe keeping certain things, including any item that is likely to cause harm to the person or any other person or that could be used by the person or any other person to cause harm to themselves or another (s 128(3)).

The person may be held in the custody of a police officer, but only for so long as it reasonably appears to the officer that the person remains intoxicated (s 129(1)).

A person held in such custody must not be charged with an offence, questioned in relation to an offence, photographed or have their fingerprints taken (s 130(1)).

A police officer may, at any time, release the person into the care of a person who the officer reasonably believes is a person capable of taking adequate care of the person and into whose care the person does not object to being released (s 131).

If, after being held in custody for six hours, it reasonably appears that a person is still intoxicated, the police officer must- • notify a senior member of the Police Force that it reasonably appears the

person is still intoxicated; • if instructed by that senior member to do so, continue to hold the person in

custody until the earlier of ten hours after the person was apprehended or it reasonably appearing the person is no longer intoxicated; and

• if the person continues to be held in custody, arrange for a health practitioner to examine the person as soon as possible, into whose care the person may be released if the person does require medical treatment (s 132).

An apprehended person may request a police officer to take him before a justice in order for the person to may make an application to the justice for release (s 133).


5.7 SOUTH AUSTRALIA

5.7.1 Restrictions on Sale or Supply of Volatile Substances

The Controlled Substances Act 1984 (SA) provides that a person must not sell or supply a volatile substance to another person if he or suspects, or there are reasonable grounds for suspecting, that the other person intends to- • inhale the solvent; or • sell or supply the solvent to a further person for inhalation by that further

person (s 19).

A maximum penalty of $10,000 or two years’ imprisonment applies.

5.7.2 Graffiti Control

The Graffiti Control Act 2001 (SA) provides that a retailer spray paint cans must ensure that any such cans stored in a part of the premises to which the public is permitted access are kept in a securely locked cabinet or in a manner prescribed by regulation such that the public can not gain access to the cans without the assistance of the retailer or an agent or employee of the retailer (s 4). A person must also not sell a can of spray paint to a minor (s 5). A maximum penalty of $1,250 applies in both instances.

Although the Act affects young people’s accessibility to spray paint cans, it is not targeted at chroming and the parliamentary debates discussing this legislation did not mention chroming.76

5.8 LAWS PERTAINING TO INDIGENOUS COMMUNITIES

An example of legislation to address volatile substance abuse in indigenous communities, particularly petrol sniffing, is section 42(d) of the Pitjantjatjara Land Rights Act 1981 (SA) which prohibits the possession, sale or supply of petrol on the lands for the purpose of inhalation.




© State of Queensland (Department of the Premier and Cabinet) 1997, this version copyright 2002

APPENDIX A – MINISTERIAL MEDIA STATEMENTS

Hon Peter Beattie MP, Premier and Minister for Trade 27 October 2003 New powers will help "chroming" kids State Cabinet has today approved a 12-month trial of laws to help children who endanger their health and their lives through volatile substance misuse, or "chroming".

The laws will allow police in parts of inner-Brisbane, Townsville, Cairns and Mount Isa to take people misusing volatile substances to a safe place such as a home or hospital.

Premier Peter Beattie and Police Minister Tony McGrady said Cabinet also approved changes to enable police to search people for items used for abusing volatile substances, and to seize such items.

Premier Peter Beattie said: "Inhaling substances like petrol, glue, chrome-based paint and nail-polish remover takes a heart-breaking toll on children and teenagers.

"Chroming can kill. It can cause heart failure, choking, suffocation; damage the liver, kidneys and central nervous system; and lead to memory loss, permanent hearing loss and depression.

"We are giving police more power to protect children from themselves - because, tragically, some children have no-one else to protect them.

"Currently, police can only seize items used for chroming if they are visible - even when police and community members know children are chroming.

"Giving police the ability to search for chroming items could help save young lives," Mr Beattie said.

"This is about removing a young person from danger," Mr Beattie said.

"It will mean police can step in when they see someone misusing - or high on - volatile substances, and take them to a safe place like a relative's or friend's home, a hospital or a rehabilitation centre."

Mr Beattie said the Crime and Misconduct Commission will evaluate the trial, and once the evaluation is finished Cabinet will consider whether the trial should be extended state-wide.

Mr McGrady will introduce into Parliament this week a bill to provide for the trial and the search and seizure powers.

He said guidelines would be developed by the Police Commissioner to ensure police understood the trial was designed to keep young people out of the criminal justice system.


© State of Queensland (Department of the Premier and Cabinet) 1997, this version copyright 2002

"Let me make this clear, we are not handing out criminal records to these young people. This is a protective strategy," Mr McGrady said.

"A person will not be forced to stay at a place of safety, nor will police be able to detain them indefinitely or take them to a watch house.

"Keeping kids alive is our top priority - keeping them out of the criminal justice system is another priority."

Mr McGrady said police would maintain a register of those taken to a safe place, so that patterns of abuse could be determined and the trial properly evaluated.

The safe place trial will begin before July 2004 after police guidelines are drafted and regulations are developed to set the boundaries of the trial and establish the police register.

The trial and the new search and seizure powers will be enacted via the Police Powers and Responsibilities and Other Acts Amendment Bill 2003.

Media contact: Minister's office 3239 0199

Premier's office 3224 4500

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RBR2003/06 Land Clearing Offences and the Natural Resources and Other Legislation Amendment Bill 2003 (Qld) Mar 2003 RBR2003/07 The Research Involving Human Embryos and Prohibition of Human Cloning Bill 2003 Mar 2003 RBR2003/08 The Sports Drug Testing Bill 2003 (Qld) Mar 2003 RBR2003/09 Abortion Law Reform: An Overview of Current Issues Apr 2003 RBR2003/10 Enhancing Community Safety: The Corrective Services Amendment Bill 2003 (Qld) Apr 2003 RBR2003/11 Defamation and the Internet: A New Challenge May 2003 RBR2003/12 New Rules for Fitness Services: The Fair Trading (Code of Practice - Fitness Industry) Regulation 2003 May 2003 RBR2003/13 Change of Name Provisions under the Births, Deaths and Marriages Registration Bill 2003 May 2003 RBR2003/14 Taking Children’s Evidence Using Technology–Evidence (Protection of Children) Amendment Bill 2003

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RBR2003/25 The Building Amendment Bill 2003 (Qld): Strengthening swimming pool safety laws Sept 2003 RBR2003/26 Prospects for Aquaculture and amendments to the Fisheries Act under the Primary Industries and Other

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RBR2003/27 ‘Earn or Learn’ – The Youth Participation in Education and Training Bill 2003 and the Training Reform Bill (Qld) 2003

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RBR2003/28 The Commonwealth Powers (De Facto Relationships) Bill 2003 (Qld) Oct 2003 RBR2003/29 The Tourism, Racing and Fair Trading (Miscellaneous Provisions) Bill 2003 (Qld): Disqualification of

Security Providers who Impersonate Police Officers Oct 2003

RBR2003/30 Telecommuting: Issues in Public and Private Sector Employment Oct 2003 RBR2003/31 Magistrates Amendment Bill 2003 (Qld): A More Collegiate Approach to the Administration of the

Magistrates Court Oct 2003

RBR2003/32 Protecting Students from Sexual Abuse in Schools: the Education and Other Legislation (Student Protection) Amendment Bill 2003 (Qld)

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RBR2003/33 Protecting Consumers of Legal Services: Chapter 3 of the Legal Profession Bill 2003 (Qld) Nov 2003 RBR2003/34 Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld): New Search, Seizure

and Detention Powers to Tackle ‘Chroming’ Nov 2003

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This Publication:

RBR 2003/34 Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld): New Search, Seizure and Detention Powers to Tackle ‘Chroming’ (QPL November 2003)