Terrorism (Community Protection) Regulations 2018

The central concept is that these regulations impose procedural constraints on police search powers under sections 13AQ and 13T of the Terrorism (Community Protection) Act 2003. Those sections are not reproduced in the regulations, but from context they authorise searches of persons in connection with terrorism prevention detention or related orders. The regulations do not specify the threshold for conducting a search; that is left to the parent Act. Instead, they regulate how the search is carried out.

Regulation 10 provides three permitted search methods: passing a metal detector over or near outer clothing; running hands over outer clothing; and requesting the person to remove outer clothing so that the officer may pass a metal detector over the underlying clothing, run hands over that clothing, or examine the removed outer clothing. This is an exhaustive list? the word must appear in the chapeau of reg 10(1), so a police officer must conduct the search in one or more of those ways. Other methods (such as requiring removal of all clothing, or intrusive body searches) are not authorised under these provisions. However, the regulation does not explicitly forbid additional methods; the mandatory language applies only to the listed methods being used, not to them being the sole methods.

Before searching, the officer must ask the person (if reasonably practicable) whether they have any item that would present a danger to a person, could assist escape, could be used to contact another person or operate a device remotely, or is evidence of or relates to a terrorist act. This pre-search inquiry is a procedural safeguard intended to reduce risk and possibly to elicit voluntary disclosure. The requirement is qualified by if reasonably practicable, which introduces discretion.

The search must be conducted by an officer of the same gender as the person's identified gender, if reasonably practicable, and only by as many officers as reasonably necessary for safety. These provisions aim to balance effectiveness with dignity and privacy, but the reasonable practicability caveats leave room for operational override.

Regulation 11 governs dealing with seized items. The officer in charge of the place of detention decides whether the item may be required as evidence of an offence. If so, it is retained. If not, it must be either returned to the owner (if reasonably practicable and the officer believes the person from whom it was seized is not entitled to possess it) or stored as property of the detained person. Notably, return to the owner takes priority only where the person seized from lacks lawful entitlement; otherwise it is stored with the detainee's property. This creates an asymmetry: an innocent owner may not get the item back if the detainee is lawfully entitled to possess it, even if the owner is lawfully entitled too. The regulation does not address competing ownership claims.

Regulation 12 requires the Chief Commissioner to maintain a register of items seized, with entries including the person's name, date and time, description, discovery details, the seizing officer's name and signature, and how the item was dealt with. No public access to the register is provided; it is an internal accountability mechanism.

Part 4 prescribes four departments for the Countering Violent Extremism Multi-Agency Panel: Education and Training; Families, Fairness and Housing; Health; and Jobs, Precincts and Regions. The note clarifies that if a department's name changes, the reference updates automatically.

The primary duty bearers are police officers in Victoria who conduct searches under sections 13AQ and 13T of the Act. The regulations govern their conduct during the search, their pre-search questioning, their post-seizure handling of items, and their record-keeping obligations. The Chief Commissioner of Police bears the responsibility of maintaining the register of seized items and ensuring the prescribed information is entered.

For the pre-search inquiry and gender-matching requirement, the person being searched is an affected party. Their rights are procedural: they must be asked about certain dangerous or relevant items, and the search must (if reasonably practicable) be conducted by an officer of the same gender. The person may be requested to remove outer clothing, but only for the limited purposes specified. These are not rights to refuse the search; they are constraints on how the search is conducted. The person's identified gender is the reference point, which aligns with current policy but may create practical difficulties in fast-moving counter-terrorism operations.

The four prescribed departments (Education and Training, Families Fairness and Housing, Health, and Jobs Precincts and Regions) are affected as they must now participate in or share information with the Countering Violent Extremism Multi-Agency Panel under section 22AU of the Act. This imposes compliance obligations: departmental officers may be required to attend meetings, share client information, or coordinate interventions. The 2022 amendment that inserted this provision expanded the regulatory reach beyond police and detainees to include civilian agencies. The choice of these specific departments suggests the panel focuses on education, welfare, health, and economic participation as levers for countering violent extremism. No additional departments have been added since 2022.

The broader public is affected only indirectly. Anyone lawfully in Victoria could theoretically be subject to a search under sections 13AQ or 13T if they are in a place of detention or otherwise fall within the scope of those provisions. However, the regulations do not expand the class of searchable persons; they only regulate the conduct of searches authorised by the Act. The compliance burden on the public is limited to the inconvenience and potential privacy intrusion of the search itself, which is already authorised by the parent Act. Private enterprises are not directly affected unless they are operators of places of detention or employers of persons subject to search, which is unlikely for most businesses.

The duties created by the regulations are imposed almost entirely on the police. Regulation 10(1) mandates that a search must be conducted by one or more of the listed methods. This is a duty: the officer cannot use methods outside the list (subject to the caveat that the list may not be exhaustive). Regulation 10(2) imposes a duty to ask the person about specified categories of items before the search, but only if reasonably practicable. This qualified duty leaves scope for an officer to skip the inquiry if circumstances make it impracticable (e.g., imminent danger, the person is non-responsive).

Regulation 10(3)(a) imposes a duty to have the search conducted by an officer of the same gender as the person's identified gender, again qualified by if reasonably practicable. This means a same-gender officer must be used unless it is not reasonably practicable, which could include situations where no such officer is available, the delay would compromise safety, or the search is urgent. Regulation 10(3)(b) imposes a duty to limit the number of officers to those reasonably necessary for safety. This is both a duty and a right for the person searched: they should not be subjected to a crowd of officers unless safety requires it.

Regulation 11 imposes duties on the police officer in charge of the place of detention. They must direct retention of items that may be required as evidence. For other items, they must direct return to the owner (if conditions in reg 11(3)(a) are met) or storage as property of the detained person. This gives the detainee a limited right: their property should not be arbitrarily destroyed or disposed of; it must be either returned to the rightful owner or stored. But the detainee has no right to demand return until the evidence question is resolved.

Regulation 12 imposes a duty on the Chief Commissioner to maintain a register and to ensure prescribed information is entered. This creates no direct right for the person searched to access the register; the regulation does not provide for inspection or copies. It is an internal accountability measure that could be used by the person to verify what was seized, but only if they can access the police records through other mechanisms (e.g., freedom of information, or during legal proceedings).

The prescribed departments have no duties under these regulations themselves; the duties to participate in the multi-agency panel arise from the Act, and the regulations merely designate which departments are covered.

The person searched has no explicit right to refuse the search; the Act provides the search power, and the regulations only govern its conduct. The right to have the search conducted in a particular manner is procedural and qualified. The person does have a right, under regulation 10(2), to be asked about dangerous items, but only where reasonably practicable. Failure to ask may not invalidate the search or render evidence inadmissible, as the regulations likely do not create a strict condition precedent.

The regulations themselves do not prescribe any penalties for non-compliance. They are made under section 40 of the Act, which grants a regulation-making power but does not automatically attach penalties to breaches of regulations. The parent Act contains offence provisions for obstructing searches and other terrorism-related offences, but those are not specific to these regulations.

Enforcement of the duties in the regulations would occur through mechanisms external to the regulations themselves. A police officer who fails to comply with the search procedures could face internal disciplinary action under the Victoria Police Act 2013 or similar. If a breach leads to unlawfulness of the search, a person searched could challenge the search in court or seek to have evidence excluded under the Evidence Act 2008 (Vic) or common law principles. However, because the regulations are procedural rather than jurisdictional, a breach may not render the search itself unlawful; it may simply be a breach of a direction. The existence of the if reasonably practicable qualifiers makes many duties conditional, which weakens the ground for enforcement.

The register requirement under regulation 12 is a duty on the Chief Commissioner. Failure to maintain the register or enter information would be a breach of a statutory duty, but no specific penalty is provided. It could be enforced by way of mandamus in the Supreme Court, though this is practically unlikely.

The prescribed departments have no enforcement mechanisms under the regulations. Their participation in the multi-agency panel is defined by the Act, and non-participation might be breach of a statutory requirement, but again no penalty is set out in the regulations.

There is no role for a regulator or independent monitor. The regulations do not create a right of complaint or audit. The register is internal, and there is no provision for reporting to Parliament or the public. This is a relatively light enforcement architecture compared to regulations that impose monetary penalties or licensing conditions.

For the person searched, the key enforcement avenue is through the courts, seeking to challenge the lawfulness of the search or of the detention that gave rise to it. If the search was conducted in a manner that contravenes the regulations, the person may argue that the search was not authorised because the mandatory conditions were not met. However, Victorian courts have held that procedural regulations do not always go to jurisdiction, especially where the words must is qualified. The risk for non-compliance is thus primarily reputational and civil, not criminal.

These regulations sit within a broader legislative framework for terrorism prevention in Victoria. The parent Act, the Terrorism (Community Protection) Act 2003, creates the search powers under sections 13AQ and 13T and establishes the Countering Violent Extremism Multi-Agency Panel under section 22AU. The regulations give operational detail to those provisions but do not expand or limit the scope of the powers themselves.

The regulations interact with the Victorian Charter of Human Rights and Responsibilities Act 2006. Section 10 of the Charter protects against arbitrary interference with privacy, and section 21 protects the right to liberty. The search procedures in regulation 10, particularly the requirement for same-gender officers and limited officer numbers, appear designed to align with Charter obligations. However, the reasonable practicability qualifiers mean that Charter compliance is not absolute; where it is not reasonably practicable to assign a same-gender officer, the search may proceed despite the potential Charter breach. Courts reviewing searches could consider the regulations as a relevant factor in determining whether a search was arbitrary or reasonable.

The regulations also interact with the Evidence Act 2008 (Vic) regarding the admissibility of evidence obtained during searches. If a search is conducted in breach of the regulations, a court may exercise its discretion under section 138 to exclude improperly obtained evidence, having regard to the seriousness of the contravention, whether it was deliberate or reckless, and the probative value of the evidence. The regulations themselves do not contain an exclusionary rule, but they inform the discretion.

The Public Administration Act 2004 is relevant through the automatic updating provision in the note at regulation 13, which provides that if a department's name changes, the reference in the regulations is taken to refer to the new name by virtue of section 38AAA of the Interpretation of Legislation Act 1984. This ensures the regulations remain effective without amendment when departmental names are changed.

The Subordinate Legislation Act 1994 governs the making and sunsetting of statutory rules. These regulations sunset on 24 October 2028 unless remade. Also, the Interpretation of Legislation Act 1984 applies to headings, examples, notes, punctuation, and provision numbers as explained in the endnotes.

If a person is a foreign national, the regulations may interact with the Migration Act 1958 (Cth) to the extent that a search or seizure under state police powers may be relevant to visa cancellation decisions. There is no express carve-out for non-citizens.

The regulations do not interact with any common law search powers because they are specific to the statutory powers under the Act. The common law power to search incident to arrest is unaffected, but police would need to ensure they are acting under the correct power and following the appropriate regulations.

The regulations were made on 24 October 2018 as S.R. No. 183/2018 and came into operation the same day. The initial version contained Parts 1, 2, and 3, and at least regulation 9, along with definitions for double-sealed envelope, hand delivery, unique identifying number, and written receipt. Part 2 presumably dealt with procedural steps for handling seized items, possibly including requirements for sealing items in double-sealed envelopes and issuing written receipts with unique identifying numbers. The first amendment was made by the Terrorism (Community Protection) Amendment Regulations 2022, S.R. No. 91/2022, which inserted Part 4 (regulation 13) prescribing the four departments for the Countering Violent Extremism Multi-Agency Panel. That amendment commenced on 27 September 2022.

The second and most recent amendment was S.R. No. 120/2024, made on 29 October 2024 and commencing on 1 November 2024. This amendment revoked Part 2 (heading and regulations 5 through 9) and revoked the definitions of double-sealed envelope, hand delivery, unique identifying number, and written receipt. It also amended the definition of the Act from its earlier form (the amendment inserted the year 2003 into the definition, but the amendment text is not provided; the current definition reads the Terrorism (Community Protection) Act 2003). The 2024 amendment significantly reduced the length and complexity of the regulations by removing what appears to have been a detailed procedural regime for documenting and packaging seized items. The explanatory details for the 2024 amendment are not available at the date of publication, so the policy rationale for the removal is not stated in the source.

The effect of the 2024 amendment is to simplify compliance for police: the earlier requirements for double-sealed envelopes, hand delivery, and written receipts with unique identifying numbers are gone. However, the absence of those procedures may reduce the rigour of the chain of custody for seized items. The remaining regulation 11 on dealing with items seized is less prescriptive, giving the officer in charge more discretion. The register requirement (regulation 12) still applies, but the level of detail previously mandated in the revoked provisions is no longer required.

The regulations will sunset on 24 October 2028 unless remade. Any future amendment or re-making would need to occur before that date if the regulations are to continue.

The source text does not mention any litigation concerning these regulations directly. The regulations are relatively new and have been substantively amended only once; they operate in a specialised area where cases are likely to be rare. It is possible that the parent Act has been litigated, particularly with respect to the constitutionality of terrorism prevention orders or detention powers, but the regulations themselves have not been the subject of reported decisions in Victorian courts or tribunals (based on the absence of any reference in the source).

The 2024 amendment removed Part 2, which may have been the subject of criticism or legal challenge in practice, but again there is no litigation history recorded in the source. The fact that no cases are cited is notable given the potential for procedural challenges to searches if the regulations are breached. One explanation is that searches under sections 13AQ and 13T are relatively uncommon, or that challenges focus on the broader lawfulness of the power rather than the specific procedural details.

The regulations could be challenged on the ground that they are ultra vires the Act if they impose requirements inconsistent with the Act's purposes, but no such challenge has occurred. Similarly, the prescription of departments for the multi-agency panel could be reviewed if a department disputed the scope of its obligations, but again no litigation is recorded.

For a practitioner advising a client who has been searched, the absence of litigation means there is little judicial guidance on how the regulations are to be interpreted. The if reasonably practicable qualifiers have not been tested, and the scope of the register requirements has not been defined by a court. This creates uncertainty for both police and searched persons.

The only way the regulations could become the subject of litigation is if a person who was searched under sections 13AQ or 13T seeks to challenge the conduct of the search or the seizure of items, or if a person whose property was seized seeks its return. The regulations could also arise in criminal proceedings if evidence is obtained during the search and the accused objects to its admissibility. As of the date of publication, no such reported cases exist.

Several features of these regulations could catch practitioners and police officers unprepared.

First, the requirement to ask the person before the search about dangerous items (regulation 10(2)) is conditional on if reasonably practicable. This qualifier is not defined. Police officers may be tempted to skip the question in all but the most placid circumstances, arguing that counter-terrorism operations are inherently too dangerous or time-sensitive to permit a conversation. However, failure to ask may later be used to argue that the search was not conducted in accordance with the regulations, potentially affecting admissibility of evidence or giving rise to a civil claim. The prudent approach is to ask as a matter of course and record any reasons why it was not practicable.

Second, the gender-matching requirement in regulation 10(3)(a) uses the phrase gender identified by the person to be searched. This is broad: it does not require a formal declaration or documentation. It presumably covers transgender and non-binary persons. The officer must act on whatever gender the person identifies at the time. If the person states a gender different from the officer's perception, the officer must try to assign a same-gender officer. If none is available and it is not reasonably practicable to wait, the search could proceed with a different-gender officer. Record-keeping of the person's gender identification and the reasons for any deviation would be prudent.

Third, regulation 11 on dealing with seized items prioritises return to the owner only if the officer reasonably believes the person from whom the item was seized is not entitled at law to possess it. If the person is entitled to possess it (e.g., it is their own property), the item goes into storage as part of the detainee's property, not to the owner. But the detainee may not be the owner. The regulation does not provide for returning property to its true owner if the detainee is lawfully in possession. For example, a borrowed book or a rented laptop would be stored with the detainee's property until released, rather than returned to the owner. The owner would need to make a claim through the police or the courts. This is a trap for property owners who lend items to persons who become subject to search.

Fourth, the register of items seized (regulation 12) requires the name of the person if known. If the person's identity is not known at the time of seizure (e.g., they do not provide details, or are unconscious), the register entry would be incomplete. The regulation does not require updating the entry later if the name becomes known. The signature of the seizing officer is required, creating a direct accountability link.

Fifth, the automatic department name change provision in the note at regulation 13 means that practitioners must track departmental name changes under the Public Administration Act 2004. The regulations do not require periodic republication. If a department is renamed or its functions transferred, the reference in the regulations automatically updates. However, the note only covers name changes, not abolition or split of departments. If a department is abolished, the regulation may become inoperative.

Sixth, the sunset date of 24 October 2028 means the regulations will automatically expire unless they are remade. Lawyers advising clients on ongoing matters should be aware that after that date the procedural requirements under Part 3 and the prescribed departments under Part 4 will no longer have effect. The parent Act's provisions will then operate without the regulatory framework, which may affect the lawfulness of searches conducted after sunset.

Compliance with these regulations falls primarily on Victoria Police, specifically officers conducting searches and the Chief Commissioner. For a police officer preparing to conduct a search under section 13AQ or 13T of the Act, the following steps are recommended.

Before the search, the officer should, if reasonably practicable, ask the person whether they have any item in their possession that falls into the four categories: dangerous items, escape aids, communication or remote operation devices, or terrorist-act-related items. The question should be asked in a clear and recorded manner. If it is not reasonably practicable (e.g., the person is violent, unconscious, or uncooperative), the officer should note the reasons on the search record. The officer should then identify the person's gender as identified by the person. If possible, arrange for a search team of the same gender and of minimum necessary size.

The search itself must be conducted using one or more of the methods listed in regulation 10(1): metal detector over outer clothing; running hands over outer clothing; and requesting removal of outer clothing for metal detection, hand running, or examination. The officer should not go beyond these methods; strip searches or body cavity searches would require separate authorisation under other provisions. The request for outer clothing removal should be phrased as a request, not a demand, though the search power itself compels compliance. If the person refuses, the officer may need to use reasonable force to effect the search, but the regulation describes a request, not a command.

After any item is seized, the officer in charge of the place of detention must decide whether the item may be needed as evidence of an offence. If yes, direct retention. If no, decide whether to return it to the owner (if reasonably practicable and the person from whom seized is not lawfully entitled to possess it) or store it as property of the detained person. The officer must consider the true ownership of the item, not just possession. If the seized person is lawfully in possession and the item belongs to a third party, the officer should still store it as detainee property, but should consider notifying the true owner of the procedure for claiming it.

The seizing officer must ensure the Chief Commissioner's register is updated with the required information: person's name (if known), date/time, description, discovery details, the seizing officer's name and signature, and disposal details. The register entry should be made promptly, preferably at the time of seizure or as soon as practicable thereafter.

The Chief Commissioner must maintain a register (the form is not prescribed, but it could be electronic or paper). The Commissioner should ensure that officers are trained on the register requirements and that entries are complete and accurate. No provision for auditing or public access exists, but the register may be subject to disclosure under freedom of information laws or in litigation.

For the four prescribed departments, compliance involves ensuring that departmental officers are aware of their obligations under the Act regarding the Countering Violent Extremism Multi-Agency Panel. Each department should designate a liaison officer and participate in meetings and information sharing as required by the Act. The regulations do not set out specific procedures for that participation; these are governed by the Act and any internal guidelines.

All parties should document compliance: notices of search, register entries, and decisions about disposal of items should be recorded in writing. The use of body-worn cameras and search proformas can assist. Regular training updates on the regulations and their amendments (particularly the 2024 removal of Part 2) are essential to ensure officers do not apply revoked procedures.