Drugs, Poisons and Controlled Substances (Volatile Substances) Regulations 2024

The Drugs, Poisons and Controlled Substances (Volatile Substances) Regulations 2024 are a subordinate legislative instrument made under sections 60T and 132 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the Act). Their sole function is to prescribe procedural and record-keeping details for police powers exercised under Part IV of the Act in relation to volatile substances. They come into operation on 15 June 2024 and revoke the 2014 regulations of the same name (regulation 3, 4). The instrument does not create new powers, offences, penalties, or substantive rights; it is machinery legislation that specifies how existing search, seizure, apprehension, and disposal powers must be executed and documented.

Specifically, the regulations prescribe: (a) the manner in which searches without warrant under sections 60E and 60F of the Act must be conducted (regulation 6); (b) the particulars to be recorded for searches (regulation 8); (c) the particulars for records of receipt or seizure of volatile substances or items used to inhale them (regulation 9); (d) the particulars for records of apprehension and detention under section 60L of the Act (regulation 10); and (e) the particulars for records of disposal or making safe of seized substances or items (regulation 11). The objective is stated in regulation 1, but the reader should note that this is a statement of drafting intent, not a substantive provision creating obligations or powers.

Mechanically, the regulations replace the 2014 version with updated content. The 2024 instrument is a standalone instrument with no amendments to date. It will sunset ten years after its making on 4 June 2034 under the Subordinate Legislation Act 1994 (Vic) (see Endnote 1). The regulations impose no direct costs on business, citizens, or government beyond the administrative burden of record-keeping and procedural compliance on Victoria Police. However, the compliance burden in officer time, training, and record management is real and should be weighed against any reduction in harm from volatile substance misuse - a question the instrument itself does not answer.

The regulations are short - eleven regulations - but they create detailed obligations for police conduct and documentation. They do not expand police powers; they constrain them by requiring specific methods and records. Whether those constraints are adequate or excessive is a matter for readers, but the instrument's structure is clearly procedural rather than substantive.

The regulations revolve around a set of linked concepts drawn from Part IV of the parent Act. A volatile substance is not defined in the regulations themselves; the definition is in the Act (section 60A likely, though the regulations do not reproduce it). The Act grants police powers of search without warrant under sections 60E and 60F where they suspect on reasonable grounds that a person has inhaled or is about to inhale a volatile substance for intoxication, or is in possession of such a substance for that purpose, or is in possession of an item used for inhalation. The regulations prescribe the manner of those searches.

Three methods of searching a person are permitted: (a) passing an electronic metal detection device over or near the person's outer clothing; (b) running hands over the person's outer clothing; (c) requesting the person to remove outer clothing, gloves, shoes, and headgear so the officer can inspect or pat down the clothing underneath or search the removed items (regulation 6(1)). These are not hierarchical; a police officer may use one or more. For vehicles, packages, or things, the permitted methods are examining the exterior and interior, and passing an electronic metal detection device over or near them (regulation 6(2)).

A key concept is reasonable privacy and speed: searches must be conducted in a manner affording reasonable privacy and as quickly as reasonably practicable (regulation 6(3)). For pat-down searches (methods (b) and (c)(ii)), there is a gender-identification requirement: the officer must, if reasonably practicable, be of the same gender as the gender the person to be searched identifies as (regulation 6(4)). This introduces a subjective element (self-identified gender) and an operational caveat (if reasonably practicable), which may create gaps.

For searches of a person on private premises whom the police officer suspects on reasonable grounds is under 18, there is a nominated adult concept: the officer must, if reasonably practicable, advise the person they may nominate an adult on the premises to be present, and if nominated, take reasonable steps to ensure that adult is present (regulation 7). This right only applies on private premises; minors in public places have no such entitlement under these regulations.

The regulations also prescribe prescribed particulars for five types of records: search records (regulation 8), receipt or seizure records (regulation 9), apprehension and detention records (regulation 10), and disposal/making safe records (regulation 11). These particulars must be included in records required under section 60Q of the Act. Notably, records may be combined: if the same document already contains particulars from another category, they need not be repeated (e.g., regulation 9(3), 10(3), 11(2)). This reduces duplication but may risk incomplete records if officers are not diligent.

The regulations directly affect three categories of persons: (1) police officers who exercise powers under Part IV of the Act in relation to volatile substances; (2) individuals who are searched, from whom substances or items are received or seized, or who are apprehended and detained; and (3) property owners or occupiers where searches occur, though only indirectly through the minor-nomination provision for searches on private premises.

For police officers, the regulations impose procedural obligations that did not exist, or existed in different form, under the 2014 regulations. Officers must now conduct searches in one or more of the prescribed ways, ensure reasonable privacy and speed, and attempt same-gender pat-downs when practicable. They must also create records with an expanded set of particulars for each type of encounter. For a frontline officer, this means more paperwork and potential for procedural challenge if steps are missed. The burden falls on operational police and their supervisory ranks who must verify compliance.

For individuals subject to these powers, the regulations confer limited procedural protections. A person searched on the street or in a vehicle is entitled to a search conducted with reasonable privacy and speed, and to a same-gender pat-down where reasonably practicable. A minor on private premises has the right to nominate an adult to be present, but only if the officer advises them of that right, and only if reasonably practicable. These are not absolute rights; they are subject to operational caveats. The no-obligation-to-provide-name protection is significant: a person can refuse to identify themselves without triggering an offence under these regulations, though the parent Act may contain other provisions.

For legal practitioners, the regulations provide a checklist for challenging the admissibility of evidence. If a search is conducted outside the prescribed methods, or if records are incomplete or absent, a defendant may argue the search was unlawful or that evidence should be excluded under the Evidence Act 2008 (Vic) or common law. Practitioners should scrutinise the records for compliance with the prescribed particulars.

For property owners or occupiers where a minor is searched on private premises, there is an indirect effect: they may be nominated by the minor to be present. The officer must take reasonable steps to ensure the nominated adult is present, but this does not give the adult a right to halt the search or to receive prior notice.

The regulations do not affect businesses, manufacturers, or suppliers of volatile substances directly - they relate only to enforcement against end-users. There is no impact on commercial activity or pricing.

The regulations impose duties primarily on police officers; rights are conferred on persons searched, from whom substances or items are seized, or who are apprehended and detained.

Duties of police officers:

1. Conduct searches of persons using only the methods listed in regulation 6(1): metal detection, hands-on pat-down of outer clothing, or requesting removal of outer clothing, gloves, shoes, and headgear followed by inspection of those items or pat-down of clothing immediately under. Searches of vehicles, packages, or things must use methods in regulation 6(2): exterior/interior examination or metal detection.
2. Conduct the search in a manner that affords reasonable privacy and as quickly as reasonably practicable (regulation 6(3)).
3. If conducting a pat-down search (methods (b) or (c)(ii)), take reasonable steps to have the search performed by a police officer of the same gender as the person's identified gender, unless not reasonably practicable (regulation 6(4)).
4. If searching a person under 18 on private premises, advise the person (if reasonably practicable) that they may nominate an adult present, and take reasonable steps to ensure the nominated adult is present (regulation 7).
5. For every search, create a record containing the particulars in regulation 8: date, time, place, officer details, person's name (or description if name not provided), vehicle/package details if applicable, name of nominated adult (if any), grounds for search, and description of any volatile substance or item found.
6. For every receipt or seizure of a volatile substance or item (under sections 60H(1)(b), 60J, or 60K of the Act), create a record with particulars in regulation 9: similar to search record, plus the person's explanation for carrying/possessing the substance or item, and the grounds for receipt or seizure.
7. For every apprehension and detention under section 60L of the Act, create a record with particulars in regulation 10: date, time, place, officer details, person's name (or description), grounds, time of release, and name of suitable person (if released into care).
8. For every disposal or making safe of a volatile substance or item, create a record with particulars in regulation 11: person's name if known, description of substance/item, date/time/place of disposal/making safe, reason for belief it was necessary, and officer details.
9. Records can be combined across categories if the particulars are recorded in the same document (regulations 9(3), 10(3), 11(2)). But if not combined, each record must stand alone.

The regulations themselves contain no penalties, fines, or imprisonment provisions. They are a purely procedural instrument. Enforcement of the requirements - or consequences for non-compliance - must be found elsewhere.

Under the parent Act, section 60R may provide for offences relating to obstruction or failure to comply with police directions, but the regulations do not reference that. The practical enforcement mechanism is likely evidentiary. If a search is conducted in a manner not authorised by regulation 6, or if required records are not created or are incomplete, evidence obtained may be challenged as unlawfully or improperly obtained. Section 138 of the Evidence Act 2008 (Vic) gives the court discretion to exclude evidence obtained improperly or in contravention of an Australian law, unless the desirability of admitting it outweighs the undesirability of admitting improperly obtained evidence. The regulations constitute an Australian law (subordinate legislation). A breach of a regulation could therefore be a ground for exclusion.

Additionally, failure by a police officer to comply with these regulations may constitute a breach of discipline under the Victoria Police Act 2013 or internal orders. This could lead to internal sanctions, though that is not statutory enforcement per se.

There is no private right of action for damages explicitly created by these regulations. A person aggrieved by an unlawful search or seizure might pursue an action for trespass, assault, or battery under common law, but the regulations do not themselves confer a remedy.

For practitioners, the key consequence of non-compliance is the risk that evidence of volatile substances or items will be excluded at trial. The more complete the records, the harder it is for a defendant to argue procedural irregularity. Conversely, failure to record the grounds for the search (regulation 8(1)(g)) may undermine the prosecution's ability to show the search was based on reasonable suspicion.

The absence of penalties in the instrument itself does not make it toothless. The record-keeping obligations create a paper trail that can be audited, and internal review of police conduct may occur. However, the regulations do not require that records be disclosed to the person searched or to any oversight body. Section 60Q of the Act may require certain records to be provided to the person or their lawyer? The regulations do not address that; readers should consult the Act.

The regulations sit within a legislative framework centred on the Drugs, Poisons and Controlled Substances Act 1981 (Vic), particularly Part IV which deals with volatile substances. Sections 60E, 60F, 60H, 60J, 60K, 60L, and 60Q are the key empowering provisions. The regulations prescribe details that the Act leaves to subordinate legislation: the manner of search and the prescribed particulars for records. Any amendment to the Act's volatile substances provisions could render parts of these regulations obsolete or inconsistent.

The regulations also interact with the Charter of Human Rights and Responsibilities Act 2006 (Vic). Section 10 protects against cruel, inhuman, or degrading treatment; section 21 protects privacy and reputation; section 13 protects freedom of movement. A search conducted in a manner that fails to afford reasonable privacy (regulation 6(3)) could breach the Charter. The same-gender pat-down provision (regulation 6(4)) reflects Charter considerations about dignity and equality. Courts interpreting the regulations must, under section 32 of the Charter, prefer interpretations that are compatible with human rights.

The Evidence Act 2008 (Vic) is the primary law for admissibility. As noted, section 138 provides for exclusion of improperly obtained evidence. The regulations set a standard for propriety; non-compliance strengthens an exclusion argument. Conversely, full compliance makes it harder to argue that evidence was improperly obtained.

The Subordinate Legislation Act 1994 (Vic) governs the making and sunsetting of statutory rules. These regulations were made on 4 June 2024 and will sunset on 4 June 2034, unless remade. The ten-year sunset period is standard and forces periodic review.

The regulations do not interact directly with Commonwealth laws, as the Drugs, Poisons and Controlled Substances Act 1981 is a state Act. However, if a volatile substance also falls within the definition of a controlled substance under Commonwealth law (e.g., certain solvents used in drug manufacture), there could be overlap. The regulations only apply to state police powers; they have no effect on Commonwealth officers.

Criminal procedure legislation, such as the Criminal Procedure Act 2009 (Vic), may apply to proceedings arising from searches. The records required by the regulations may be used in bail applications, committal hearings, or trials.

Practitioners should note that these regulations are subordinate to the parent Act. If the Act is amended to expand or restrict search powers, the regulations may need amendment to remain consistent. As of 15 June 2024, no amendments exist.

The Drugs, Poisons and Controlled Substances (Volatile Substances) Regulations 2024, S.R. No. 41/2024, were made on 4 June 2024 by the Lieutenant-Governor in Council under sections 60T and 132 of the Drugs, Poisons and Controlled Substances Act 1981. They came into operation on 15 June 2024 (regulation 3). This version (Version No. 001) is the first and only version as at the version date. The Table of Amendments (Endnote 2) records no amendments by statutory rules, subordinate instruments, or Acts. The 2024 regulations revoke the earlier Drugs, Poisons and Controlled Substances (Volatile Substances) Regulations 2014 (S.R. No. 59/2014, as amended by S.R. No. 59/2014) (regulation 4). No transitional provisions are included in the 2024 instrument. The revocation means that from 15 June 2024 the 2014 regulations no longer apply, and police must comply with the new procedures and record-keeping requirements.

The 2014 regulations had their own history of amendment and review. The 2024 regulations represent a fresh instrument, likely informed by operational experience and possibly by Charter considerations. The absence of any explanatory memorandum or accompanying document in the source material means we cannot confirm the rationale for changes. Substantively, comparison with the 2014 regulations would require access to the full text of that instrument; the source provides only the 2024 text. A reader interested in the evolution would need to locate the 2014 regulations and compare.

Because the regulations are new, no amendment history exists post-commencement. Practitioners should monitor the Victorian legislation website for any future statutory rules amending these regulations. The ten-year sunset clause means a review will occur before 2034, but amendments could happen at any time.

As the regulations came into operation on 15 June 2024, there is no recorded litigation specifically concerning this 2024 instrument. The source material does not reference any cases. However, practitioners should be aware of case law under the 2014 regulations or under the parent Act's volatile substances provisions that may inform interpretation.

Cases concerning the 2014 regulations may still be relevant for analogous provisions. For example, Victoria Police search and seizure cases often involve challenges to the reasonableness of suspicion or the conduct of searches. DPP v Dawe or Kuru v State of New South Wales are examples of general search power litigation; however, those cases are not referenced in the source and should not be assumed.

There may also be cases under the Charter of Human Rights and Responsibilities Act 2006 that consider whether a volatile substance search constitutes an arbitrary interference with privacy. A search conducted without regard to the privacy requirement in regulation 6(3) could be challenged. The same-gender requirement in regulation 6(4) may be tested if an officer deliberately fails to comply.

The disposal/making safe power under regulation 11 could be challenged if a seized substance or item is destroyed unnecessarily, potentially giving rise to a claim for conversion or trespass to goods. The record of the reason for belief in necessity (regulation 11(1)(f)) would be key evidence.

Because the instrument is new, no appellate decisions interpreting its specific wording exist. Practitioners should be cautious in assuming that identical wording in the 2014 regulations was interpreted in a particular way, as the 2024 wording may differ. The text of the 2014 regulations is not before us.

For now, the litigation history is a blank slate. The regulations will likely be litigated only if a criminal defendant seeks to exclude evidence or challenge the lawfulness of a search or seizure.

Several provisions in these regulations contain traps for the unwary - whether for police officers, legal practitioners, or individuals.

1. The "reasonably practicable" caveats are pervasive. The same-gender pat-down requirement (regulation 6(4)) is subject to "if reasonably practicable". The minor's right to nominate an adult (regulation 7) is subject to "if reasonably practicable" for advice and "take reasonable steps" for presence. These qualifications give police broad discretion to proceed without compliance if they deem it not practical. A court may later accept an officer's judgment call, making these protections weak in practice.

2. The minor's right only applies on private premises. Regulation 7 kicks in only if the person is under 18 and the search occurs on private premises. A minor searched in a public park, a shopping centre, or a school yard gets no adult-nomination right. This is a significant gap, given that many volatile substance incidents occur in public places.

3. No obligation to provide name - but still risk of detention. The notes in regulations 8, 9, and 10 confirm that a person is under no obligation to provide their name. However, if a police officer cannot obtain a name, they must record a description. The officer may still detain the person briefly to conduct the search or formalise a seizure. The regulations do not address whether a person who refuses to give a name can be lawfully detained longer than necessary for the search itself. The parent Act may permit detention for these purposes, but the regulations are silent.

4. Combined records - potential for gaps. Regulations 9(3), 10(3), and 11(2) allow records to be combined if the same document contains the required particulars. This could lead to a single record that, in practice, omits some particulars because the officer assumes they are covered by another part. For example, a search record might omit the grounds for search if the officer intends to include them in a seizure record, but then fails to do so. The regulations do not require cross-referencing; they only say the particular is "not required to be included" if recorded in the same record. This is permissive, not mandatory.

5. The disposal/making safe record requires a reason for belief that disposal was necessary. Regulation 11(1)(f) requires the reason for the belief that disposal or making safe was necessary. This is a subjective test. An officer who believes a volatile substance is dangerous may dispose of it summarily. The record must state the reason, but there is no independent review before disposal. This creates a risk of destruction of evidence that might later be needed for a defence.

Compliance with these regulations falls primarily on Victoria Police, but legal practitioners, persons subject to search, and police oversight bodies also have roles.

For Victoria Police: Officers must be trained on the prescribed search methods. Training should emphasise that only the methods listed in regulation 6(1) and 6(2) are authorised. Pat-down searches must be conducted with reasonable privacy and speed, and where reasonably practicable by an officer of the same gender as the person's identified gender. For vehicle and thing searches, only external and interior examination plus metal detection are permitted; there is no authority to dismantle a vehicle.

When searching a person on private premises who appears under 18, officers must ask if there is an adult they would like present. If the minor nominates an adult, the officer must take reasonable steps to locate and bring that adult to the search location before proceeding. Only if not reasonably practicable may the officer proceed without the adult. This step must be recorded in the search record (regulation 8(1)(f)).

Police must create records for every search, seizure, receipt, apprehension/detention, and disposal/making safe. The records can be in electronic or paper form. Each record must contain all the prescribed particulars for its category. If combining records into one document, the officer must ensure that all required particulars from each category appear in that document. A sample checklist for officers:

• Search record: date, time, place, officer details, person name (or description), vehicle/thing description, nominated adult name (if applicable), grounds, description of any substance/item found.
• Receipt/seizure record: same as search record plus the person's explanation and the grounds for receipt/seizure. If already recorded in the search record, these need not be repeated only if in the same document.
• Apprehension/detention record: date, time, place of apprehension and detention, officer details, person name (or description), grounds, time of release, name of suitable person if released into care. Again, can be combined with search record.
• Disposal/making safe record: person's name if known, description of substance/item, date/time/place of disposal, reason for belief it was necessary, officer details.

Officers must not destroy or dispose of volatile substances or items without first recording the reason for belief that it was necessary (regulation 11(1)(f)). A subjective belief is required, but the record must state it. It would be prudent to have a senior officer or supervisor confirm the necessity before disposal, though not required by the regulations.