Volatile substance misuse: a review of interventions: monograph series no. 65

10.1 Legislation governing police powers to intervene in VSM

Page last updated: 2008

As a report prepared for the Australasian Centre for Policing Research (2004) points out, legislation governing law enforcement and VSM falls into two categories: police powers with respect to inhalant users, and restrictions on the sale and supply of volatile substances. In this review, the latter are covered in the supply reduction section, under sub-section 5.4.1. Changes to police powers with respect to inhalant users are outlined here.

Nowhere in Australia is possession or use of inhalants a statutory offence although, as we describe below, some Aboriginal community councils and organisations have enacted by-laws or regulations prohibiting VSM. The question of whether or not VSM should be made an offence has been debated at various times. The Commonwealth Senate Select Committee of Inquiry into Volatile Substance Abuse concluded in 1985 that it would be inappropriate to treat inhalant use as a crime, in part because such a policy would possibly have a counter-productive affect of adding to the danger of an already rebellious act, and partly because, in the absence of rehabilitation facilities, it would have no lasting deterrent effect.

In 2002, the Victorian Parliamentary Drugs and Crime Prevention Committee again examined the case for and against making VSM a criminal offence. It too recommended against doing so, citing views expressed in several submissions, and drawing on an earlier examination conducted by the Justice and Law Reform Committee of New Zealand in 1997 (Parliament of Victoria Drugs and Crime Prevention Committee, 2002). The NZ Committee argued that sufficient criminal sanctions already existed without making VSM itself a criminal matter; that in view of the ages of many inhalant users, the welfare of the child should be the paramount consideration; and that the imposition of a conviction for inhalant use would be unlikely to have a deterrent effect, and would probably have detrimental consequences, including encouraging users to shift to other drugs and/or other places. (In the UK, as previously observed, introduction of legal sanctions against glue sniffing and a large-scale public education campaign was followed by an increase in deaths from butane and aerosol inhalation (Dinwiddie, 1994, p. 928).) The Victorian Parliamentary Committee also noted that the Victorian Police, among other organisations, did not support criminalisation of VSM.

The National Inhalant Abuse Taskforce (NIAT) noted in its 2006 report (subsequently endorsed by the Ministerial Council on Drug Strategy) that where no specific legislation relating to VSM exists, legislation governing public intoxication, child welfare and consumer protection may be applicable. Two jurisdictions—South Australia and Western Australia—have recently amended existing laws to make them more applicable to VSM. In South Australia in 2004 petrol, defined to include 'any volatile liquid containing hydrocarbons', was declared to be a drug under the Public Intoxication Act 1984, thereby enabling police to detain a person intoxicated in a public place by VSM, without that person being charged with an offence (South Australia, 2004). In addition, the South Australian Graffiti Control Act 2001 prohibits the sale of cans of spray paints to persons under 18 years, and requires retailers of spray paints to keep them securely locked or under similar constraints (South Australia, 2001). Under an amendment to the same Act introduced in May 2007, the same restrictions have also been extended to wide-tipped marker pens (South Australia, 2007).

In Western Australia, the Protective Custody Act 2000 empowers police to intervene in episodes of VSM by seizing and destroying intoxicants, and by apprehending and detaining intoxicated persons in order to protect the latter's health and safety or prevent them from damaging property (Drug and Alcohol Office (Western Australia), n.d.). The Criminal Code (Section 206) has also been amended to specify an offence of supplying intoxicants 'to people likely to abuse them', with an intoxicant defined as 'a drug, or a volatile or other substance, capable of intoxicating a person'—excluding liquor (Drug and Alcohol Office (Western Australia), n.d., p. 15).
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Three jurisdictions—the Northern Territory, Queensland and Victoria—have gone a step further and enacted new legislation specifically addressing VSM. The new laws embody a 'civil apprehension' approach to policing, and in the main give police two kinds of powers:

  1. to search for and confiscate volatile substances which the officer believes are being used for intoxication; and
  2. to apprehend and detain persons intoxicated by VSM.
In Victoria, the Drugs, Poisons and Controlled Substances (Volatile Substances) Act 2003 authorises police to search a person aged less than 18 years whom the police suspect to be in possession of volatile substances or VSM-related items, or a person regardless of age whom police suspect intends to provide a volatile substance to a person aged less than 18 years for purposes of inhalation. The Act also empowers police to seize volatile substances or items used for inhalation, and to detain persons aged less than 18 years suspected of inhaling or intending to inhale. Those detained are to be released into the care of a 'suitable person', which can include parent, carer, guardian, other responsible family member, or health or welfare worker. If police are unable to find a suitable person, they can release or detain the person, if necessary at a police station, but not in a police cell (Australian Drug Foundation, 2004).

An Interagency Protocol, introduced in conjunction with the new legislation, sets out the respective roles of police and other agencies, including alcohol and other drug services, child protection services, Indigenous services, and out-of-home care services, and attempts to integrate their respective activities (State Government of Victoria, 2004).6 The Protocol identifies 11 options available to police, namely to:
  • call an ambulance;
  • release the young person if they are no longer affected by inhalant misuse;
  • provide the young person, parent or guardian with education and referral information;
  • connect the young person with a parent, carer, guardian or other suitable person;
  • return the young person to their Out of Home Care Service, if a statutory client;
  • contact the Department of Human Services Child Protection Intake Team if there are risks or protective concerns for children under 17 years of age as defined under the relevant act;
  • notify the appropriate authorities if it is known that the young person is under a guardianship, child protection, residential order or other statutory order; and
  • connect the young person with an alcohol and drug agency.
The Victorian legislation was originally subject to a sunset clause taking effect on 30 June 2006. However, under the Drugs, Poisons and Controlled Substances (Volatile Substances) (Extension of Provisions) Act 2006 it has been extended for a further two years to allow for completion of an evaluation.

The Queensland Police Powers and Responsibilities and Other Legislation Amendment Bill 2003, which took effect in July 2004, followed a similar approach to that adopted in Victoria. As in Victoria, police powers to apprehend and detain persons believed to be engaging in VSM were expanded, without making VSM an offence (Giskes, 2003). The amendments were introduced on a trial basis in five selected sites—Mount Isa, Cairns, Townsville, inner Brisbane and the Brisbane suburb of Logan. It has since been extended to two other locations: Rockhampton and Caboolture. The Queensland legislation also provided for a trial of a 'places of safety' scheme, under which, at the five selected sites, designated facilities were identified for the care of persons intoxicated by VSM. The impact of the scheme was to be evaluated over the trial period by the Queensland Crime and Misconduct Commission (CMC).

Late in 2005 the CMC reported its findings on the amended legislation and the places of safety scheme respectively in two separate reports (Crime and Misconduct Commission (Queensland), 2005a; Crime and Misconduct Commission (Queensland), 2005b). The CMC concluded that the amended police powers had served a useful role and should be extended to cover the whole state of Queensland, subject to modifications. On the negative side, the evaluation reported a widely held perception that, as a result of the new legislation, police had been given primary responsibility for addressing VSM without either sufficient authority or adequate operational guidelines, and without mechanisms to ensure that follow-up health and welfare activities were taken up by the appropriate agencies and not left with the police.

To address these deficiencies, the CMC made 26 recommendations, including calls for police powers to be further extended to authorise police to compel a person apprehended to give their name and address and, in the absence of an available place of safety, to hold persons apprehended for up to four hours for their own wellbeing. The CMC also proposed the introduction of an 'alert' system under which, following initial apprehension and referral by the police, the Department of Child Safety would be notified, and obliged to initiate appropriate assessment and case management procedures. (The CMC's evaluation of the places of safety model is outlined in section 10.2).
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The most comprehensive legislative initiative to address VSM is the NT Volatile Substance Abuse Prevention Act 2005, which took effect in February 2006 (Northern Territory of Australia, 2006). The new Act incorporates similar provisions relating to search, seizure and supply of volatile substances to those in the amended Victorian and Queensland legislation. As in Victoria and Queensland, the legislation stops short of making inhalant misuse an offence. It also contains two provisions not found in the other jurisdictions: provision for mandatory treatment for persons deemed to be at risk of severe harm from inhalant misuse, and provision for 'management areas', under which communities can gain legal recognition for locally-specific laws relating to the possession, supply and use of volatile substances (Legislative Assembly of the Northern Territory, 2004).

Under the NT Act, it is also an offence to supply a volatile substance to another person if the supplier 'knows or ought to know' that the other person intends to inhale the substance or supply it to a third person to inhale.

The NT Government has also committed $10 million over five years to a program of new and expanded services that includes treatment facilities for VSM in both Alice Springs and Darwin; government-employed clinical teams based in Alice Springs and Darwin to provide support for remote health services in managing VSM-related problems; support for upgrading outstations in Central Australia that regularly accept petrol sniffers on a diversion basis; funding for six youth case workers, to be based with a non-government organisation; and non-recurrent funds for a series of bush camps.

In May 2006 the 'civil apprehension' approach received national endorsement from the Ministerial Council on Drug Strategy (MCDS), through the latter body's formal acceptance of a report entitled National Directions on Inhalant Abuse. The report outlined a set of 'Guiding principles for inhalant legislation' based on the following core principles:
  • The primary aim of legislation should be to protect the health and welfare of inhalant users.
  • Legislation should not criminalise the behaviour of inhalant users and should protect their civil rights
  • Communities may be best placed to make their own decisions and rules about inhalant use issues in their community.
  • It may be appropriate for the legislation to include the power to confiscate inhalant products to protect the health and safety of an inhalant user.
  • It may be appropriate for the legislation to include the power to apprehend and detain an inhalant user to protect his/her health and safety or to link him/her to treatment.
  • Persons selling volatile substances have a responsibility not to sell in situations where they suspect the person will inhale the product.
  • The dangerousness or pattern of use of some volatile substances may warrant the introduction of specific sale restrictions.
  • The legislation should be enforced in keeping with its primary objectives of protecting the health and welfare of inhalant users.
  • Legislation should be supported by a commitment to adequately resource its implementation.
  • The operation of legislation should be monitored and reviewed to ensure that its objectives are being met and to assess its impact (National Inhalant Abuse Taskforce, 2005).

Footnotes

6 The Interagency Protocol between Victoria Police and nominated agencies, 2004 can be downloaded in PDF format from Victorian Department of Health website (www.health.vic.gov.au)