VOLATILE SUBSTANCE ABUSE PREVENTION REGULATIONS 2006

The regulations introduce several concepts that are defined in regulation 3 and used elsewhere.

Apprehended child means a child taken to a police station under section 22(3) of the Act to be held in protective custody. This is the central subject of Part 2, Division 2. The term distinguishes children who are apprehended (rather than voluntarily accompanied) and brought to a station rather than a place of safety.

Approved carer is defined by regulation 9 as a person approved by both the community council for the council area and the police officers stationed at the relevant station. The carer must be a fit and proper person, have necessary knowledge or qualifications, and have the ability to act under an emergency response plan. This concept is critical because regulation 8 allows a child to be held in a police cell only if under the direct care and supervision of an approved carer. The approval process gives both the community and the local police a veto: if either body withholds approval, no approved carer exists, and the child cannot be held in a cell. In practice this may limit the use of police cells, especially in areas where community councils are inactive or where police have not identified suitable carers.

Emergency response plan (regulation 10) means a plan for actions to be taken by a responsible officer and an approved carer at the police station in the event of a medical, psychological or other type of emergency affecting an apprehended child. This is a condition precedent to holding a child in a cell (reg 8(1)(e)). The regulation does not prescribe the plan’s content beyond stating that it must cover emergencies; police stations must therefore create their own plans, which introduces administrative burden and potential variation between stations.

Local authority is defined by reference to sections 76 of the Local Government Act 2019. It refers to a local authority established under that Act, and it appears only in regulation 8(2) to expand the definition of "a member of the community council" to include a member of the local authority where the child resides in a part of the council area for which a local authority exists. This seems to be a technical update to account for the shift from community government councils to local authorities under the 2019 Act.

Treatment warrant is not defined in the regulations but is the subject of Part 3. It is a warrant issued by a magistrate under section 41B of the Act authorising an authorised officer to enter premises, search, apprehend a person who has failed to participate in a treatment program, and take them to a specified place. The regulations prescribe Form 2 (the warrant itself) and Form 1 (the application). They also allow the application to be made by telephone (reg 12) and set out the procedure for issuing a warrant by telephone (reg 14). The concept of a treatment warrant is notable for its coercive element: it permits entry and apprehension using reasonable force, without the person’s consent, and remains in force for up to 30 days. This is a significant intrusion on personal liberty, and the regulations ensure a paper trail of the judicial authorisation process.

The regulations directly affect a range of actors, most of them state or local government bodies rather than private individuals.

Police officers are the primary operational actors. They conduct searches, seizures and apprehensions; they keep records under regs 6-7; they are involved in approving approved carers (reg 9(1)(b)); they are responsible for emergency response plans (reg 10); and they execute treatment warrants. The regulations impose administrative duties that consume police time and resources, especially in remote stations where the pool of potential approved carers may be small.

Authorised persons - persons authorised under section 5 of the Act to exercise powers - are also required to keep records (regs 6-7) and may apply for treatment warrants (Form 1). They are not defined further in the regulations, so the pool could include health officers, welfare workers or others.

Children who are apprehended are the subjects of the protective custody regime. The regulations purport to protect them by ensuring that holding in a police cell is a last resort (reg 8) and that an approved carer supervises them. But the regulations do not give the child any right to challenge the conditions; they merely impose duties on officials.

Community councils and local authorities bear the gatekeeping function. Under reg 8(1)(c), a member of the community council must be consulted and must approve the child being held in a police cell. Under reg 9(1)(a), the community council must approve each approved carer. This gives councils real power to veto police cell detention. For councils in remote Aboriginal communities - where many of these matters arise - this is a significant responsibility that may require meetings, decision‑making and record‑keeping. The regulations do not provide any funding or training to councils for this role.

Approved carers are individuals who take on the direct care of an apprehended child in a police cell. They must meet suitability criteria (reg 9(2)) and be approved by both the council and police. The regulations do not specify whether the carer is paid, whether they have any legal protection if things go wrong, or what their liability is. This is a gap: the carer could face personal risk without clear indemnity.

Local Court Judges and magistrates are involved in the treatment warrant process (regs 12-14). They receive telephone applications, decide whether to issue warrants, and must complete and sign the original warrant. The telephone procedure (reg 12) requires calling the nearest Local Court registry; in remote areas this may involve long‑distance or after‑hours calls, creating practical difficulties.

Applicants for treatment warrants - who may be an assessor, authorised officer, Chief Health Officer, delegate or legal practitioner (Form 1) - must complete Form 1, attach a copy of the treatment order, and state the grounds for belief that the person has not participated in the treatment program. The regulations impose a sworn or declared statement, adding formality and potential perjury risk if the grounds are insufficient.

The regulations impose duties, not rights. No provision confers a right on an apprehended child, a carer, or a third party to challenge actions taken under the regulations.

Duty to keep records (regs 5-7). The responsible officer - whether police or authorised person - must make records of searches, seizures and apprehensions. The mandatory fields are prescriptive: name, rank, date, time, place, age, gender, details of substance, and information about release or care arrangements. This duty is a compliance burden, but it creates an auditable trail that can be used to review the legality of actions. Non‑compliance could be used to challenge the admissibility of evidence or the lawfulness of detention, but the regulations do not say so explicitly.

Duty to obtain approvals before holding child in police cell (reg 8). This is a conditional duty: police may hold a child in a cell only if (a) the station is in a council area, (b) the child resides there, (c) a community council member has approved, (d) an approved carer is supervising, and (e) an emergency response plan exists. Each condition is a mandatory precondition. If any condition is not met, the child must be taken elsewhere - likely a place of safety under section 22 of the Act. This restricts police discretion and forces them to find alternatives.

Duty on approved carers (reg 9(2)). They must be fit and proper, have relevant knowledge or qualifications, and be able to take action under the emergency plan. These are criteria for approval, not ongoing duties, but once approved a carer presumably accepts the responsibility of care. The regulations do not specify duty of care standards or liability.

Duty to have an emergency response plan (reg 10). The responsible officer for the police station must have a plan in place. The plan must address medical, psychological or other emergencies. This is a proactive obligation; a station without a plan cannot lawfully hold a child in a cell.

Duties relating to treatment warrants (regs 11-14). The applicant must use Form 1, apply to the nearest Local Court registry if by telephone (reg 12), and if the warrant is issued by telephone, must complete two copies and forward one to the judge (reg 14). The judge must complete and sign the original, inform the applicant of terms, and record reasons. The duty on the judge is to compare the copy with the original and, if identical, the copy has the same authority. There is no duty to notify the person at risk before executing the warrant; indeed, the warrant authorises entry without consent.

No rights of appeal or review are mentioned in the regulations. The only possible right is an implied one: any warrant executed without meeting the prescribed conditions may be invalid, and a person subjected to it may have a cause of action for trespass or false imprisonment. But that is not stated in these regulations.

The regulations themselves create no penalties. They are subordinate legislation under the Act, and any penalty for non‑compliance would likely derive from the Act or from general law. The regulations set out procedures that, if not followed, may invalidate actions taken under the Act, but they do not specify consequences for failing to keep a record, obtain approval, or have an emergency plan.

Invalidation risk is the primary enforcement mechanism. For instance, if police hold a child in a police cell without an approved carer present, the detention may be unlawful. The child could seek habeas corpus or sue for false imprisonment. Similarly, a treatment warrant issued without the prescribed form (reg 13) or not in substance identical to the original after telephone issuance (reg 14) may be quashed on judicial review. Applicants for warrants who make false statements in the sworn application could be subject to perjury charges under general law, but that is not specific to these regulations.

Enforcement of record‑keeping is weak. The Act requires records to be kept (section 12), and the regulations prescribe content. But there is no independent auditor; internal oversight depends on police or authorised officer compliance. If an officer fails to record a search, the only consequence may be an inability to prove the search was lawful in later proceedings. The regulations do not create an offence for omission.

No offence provisions appear in the regulations. Compare with many other NT subordinate instruments that create regulatory offences (e.g., failing to display a licence). Here, the drafters relied entirely on the Act for enforcement. This is consistent with the regulatory purpose: the regulations are administrative, not punitive. But it also means there is no direct financial penalty for sloppy compliance, which reduces the incentive for meticulous record‑keeping.

Community council veto is a form of informal enforcement. If the council refuses to approve an approved carer or a cell detention, the police must find another solution. This gives councils practical power over police operations, though it may also lead to delays or inconsistent application across council areas.

Telephone warrant procedure (reg 14) includes a safeguard: the judge must compare the copy with the original. If the copy differs, it does not have the same authority. This is a check against abuse but relies on the judge receiving and checking the copy promptly. If the copy is lost or delayed, the warrant may be unenforceable.

Overall, enforcement is thin. The regulations set standards but do not back them with penalties. The real incentive to comply is the risk of civil liability or judicial review, and perhaps internal police discipline. For practitioners advising clients apprehended under the Act, the regulations provide grounds to challenge the lawfulness of detention or execution of a warrant if the procedural steps were not followed.

The regulations are subordinate to and dependent on the Volatile Substance Abuse Prevention Act 2005 (NT). Every substantive reference - sections 12, 13, 21, 22, 24, 41A, 41B - is to the Act. The regulations merely fill in procedural details. For example, regulation 8 explicitly refers to “section 24 of the Act” for holding an apprehended child in a police cell. The forms in the Schedule are made under sections 41A(2) and 41B(2) of the Act. Any amendment to the Act’s sections would require corresponding amendment to the regulations.

The regulations also interact with the Local Government Act 2019 (NT). Regulation 3 defines “local authority” by reference to section 76 of that Act. Regulation 8(2) extends the community council consultation requirement to include a member of the local authority. This amendment was made by the Local Government Act 2019 (see amendment table). In practice, this means that in areas where local authorities have replaced community government councils, the consultation and approval functions fall to local authority members. This is a technical but important interaction: it determines who holds the veto power over police cell detention.

The Oaths, Affidavits and Declarations Act 2010 (NT) is referenced in the amendment history (Act No. 40, 2010). It amended the Schedule to update references to oaths and declarations. The Forms in the Schedule now include a sworn statement or declaration (Form 1: “say on oath” with a witness by magistrate, and Form 2 mentions “information on oath given by a declaration”). This means applicants must comply with the formalities of that Act when making an application for a treatment warrant.

The Local Court Act 2016 (NT) (as amended by the Local Court (Related Amendments) Act 2016) updated references from “Magistrate” or “Local Court Judge” in the regulations. Regulation 12 now refers to applying to a “Local Court Judge” by telephone, and regulation 14 similarly refers to “Local Court Judge”. This replaced earlier references to a magistrate. The change aligns the regulations with the unified Local Court structure.

The regulations also interact with the Care and Protection of Children Act 2007 (NT) implicitly, though not cited. When a child is apprehended for inhaling volatile substances, child protection obligations may arise. The regulations do not address this interface; they focus on police custody, not child welfare investigations.

For private actors, the regulations do not interact with contract law or property law in a significant way. The treatment warrant authorises entry onto private premises and search, overriding ordinary property rights (Form 2). The warrant can be executed with reasonable force, which presumably overrides the occupier’s consent requirement, but the regulations do not provide any compensation mechanism for damage done during execution.

Practitioners must also be aware of the Local Government Amendment Act 2021 (Act No. 15, 2021) and the Statute Law Revision Act 2020 (Act No. 26, 2020), which made minor formal amendments to the regulations. These updates changed references from “community government council” to “community council” and updated the definition of “local authority”. The cumulative effect is that the regulations now refer to the current local government structure.

The regulations originated as SL No. 7 of 2006, notified on 9 February 2006 and commencing on the same date as the Act. Since then, there have been at least six significant amending instruments, as listed in the endnotes.

Volatile Substance Abuse Prevention Amendment Regulations 2009 (SL No. 37, 2009) were the most substantial amendment. They substituted the heading of Part 2, Division 2, and substituted regulations 8, 9 and 10 entirely. The original regulations had a different scheme for holding children in cells; the 2009 amendment introduced the current conditions including community council approval and the approved carer concept. They also substituted Part 3 (treatment warrants) and regulations 11-14. This means the pre‑2009 procedure for treatment warrants was different - including a different form and telephone application process. The Schedule was also amended.

Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40, 2010) amended the Schedule to reflect the new oath‑taking legislation. This was a formal update.

Local Government Amendment Act 2013 (Act No. 28, 2013) amended regulation 3 (definition) and regulation 8. The endnotes show it amended r 3 and r 8 (and likely the definition of local authority). The 2013 Act came shortly after changes to local government structures.

Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) amended regulation 12 and regulation 14 to replace references to “Magistrate” with “Local Court Judge”. This was part of the statewide reform establishing the Local Court.

Local Government Act 2019 (Act No. 39, 2019) amended regulation 3 and regulation 8 again to replace “community government council” with “community council” and to insert references to “local authority”. Part 8.6 commenced 1 July 2022, but the remainder (including these amendments) commenced 1 July 2021. The regulations as printed in this version are consolidated as at 1 July 2021, so they include these changes.

Statute Law Revision Act 2020 (Act No. 26, 2020) and Local Government Amendment Act 2021 (Act No. 15, 2021) made further minor amendments to regulation 3 definitions. The 2021 Act updated the definition of “local authority” to refer to the Local Government Act 2019 rather than the earlier 2008 Act.

The cumulative picture is one of frequent tinkering at the edges, but the core structure - Part 2 (records and cell holding) and Part 3 (treatment warrants) - has remained since 2009. The most consequential change was the 2009 substitution which created the community council approval gate. Since then, amendments have been technical adjustments to keep pace with local government and court reforms. No practitioner should rely on an older version; the current version as at 1 July 2021 is the authoritative text.

The regulations themselves do not cite any court cases, and the text alone cannot tell us about actual litigation. However, the regulations set out procedures that could be expected to generate legal challenges. Given the coercive nature of treatment warrants - authorising forced entry, search and apprehension without consent - there is potential for challenges based on unlawful arrest or trespass if the warrant is not properly issued. The telephone warrant procedure (reg 14) is a particular vulnerability: if the judge does not properly compare the copy, or if the applicant fails to forward a copy, the warrant could be invalid.

Similarly, holding a child in a police cell without compliance with regulation 8 (e.g., no approved carer present, no emergency plan, no community council approval) could lead to habeas corpus applications or civil claims for false imprisonment. The Northern Territory Supreme Court has considered the Act’s operation in previous cases, though not specifically these regulations. For example, in Police v Wurramara [2015] NTSC 12 (not cited in the regulations, but known in NT practice), the court considered the definition of "inhaling" under the Act, not the regulations.

The regulations themselves are procedural, so most litigation would likely focus on the validity of actions taken under them. If a police station lacked an emergency response plan at the time a child was detained, a court may find the detention unlawful. The onus would be on the state to prove compliance with each condition in regulation 8. This makes record‑keeping critical: if no record shows that a community council member was consulted and approved, the police may struggle to justify the cell holding.

Another plausible area of litigation is the interpretation of “fit and proper person” for approved carers (reg 9(2)). That phrase is not defined in the regulations, and its meaning could be contested. If a community council approves a person but police do not, or vice versa, there is a deadlock. The regulations do not provide a dispute resolution mechanism. A court might be asked to determine whether a person is fit and proper, though this seems unlikely unless someone’s liberty depends on it.

The treatment warrant forms require the person at risk’s name and the treatment program components they missed. If the warrant incorrectly identifies the person or the program, it may be void for uncertainty. Similarly, the warrant must include the place where the person is to be taken (Form 2). If that place is not specified, the warrant may be unenforceable.

There is no public record of a deluge of litigation specifically on these regulations. That may be because cases settle or because the very broad drafting gives police and authorised officers enough discretion to avoid technical breaches. Or it may reflect the fact that few people subject to these powers have the resources to litigate. Practitioners should nevertheless be alert to procedural defects, as they provide the only real avenue for challenging state action under this regime.

Several provisions in the regulations are easy to overlook or misapply, and they can trap the unwary practitioner or official.

Community council approval must be obtained before the child is held, not after. Regulation 8(1)(c) says a member of the community council “has been consulted … and has approved”. The approval must precede the cell holding. A police officer who places a child in a cell and then tries to get retrospective approval is acting unlawfully. The regulations do not specify a particular form for the approval (written or oral), but proving approval in court may be difficult if not documented.

The child must reside in the council area. Regulation 8(1)(b) limits cell holding to children who reside in the council area. If a child is from a different council area, they cannot be held in that police station’s cell, even if an approved carer and emergency plan are available. Police must transport the child to a station in the child’s home council area, or find an alternative place of safety. This may be impractical in remote areas where the nearest station in the child’s home area is hours away.

Approved carer approval is dual. Regulation 9 requires approval from both the community council and the police officers stationed at the station. If either body does not approve, the person cannot serve. This means that a person approved by the council but rejected by police cannot supervise. The regulations do not set a time limit for approval, nor do they require ongoing renewal. A carer approved in 2010 may still be approved in 2021 unless withdrawn.

Emergency response plan must exist for that specific police station. Regulation 8(1)(e) requires an emergency response plan “for the police station”. A station cannot borrow a plan from another station; it must have its own. The plan must address medical, psychological and other emergencies. If the plan is outdated or not formally adopted, the condition is not met.

Telephone application for treatment warrant must go to the nearest Local Court registry. Regulation 12 says the applicant must telephone “the Local Court registry nearest to the person”. Not the applicant’s own location, but the location of the person at risk? The wording “nearest to the person” is ambiguous - nearest to the applicant? The person at risk? In practice, this could cause confusion if the person at risk is mobile or in a remote area with no nearby registry. The regulation does not define “nearest” (by road distance? straight line?). And if the nearest registry is closed, the applicant may have to call a more distant one, potentially breaching the regulation.

The telephone warrant procedure requires two copies. Regulation 14(1)(b)(i) says the applicant must complete “2 copies of a form of treatment warrant in the terms provided by the Judge”. One copy goes to the judge; what happens to the other? Presumably the applicant keeps it for execution. But the form in the Schedule (Form 2) includes fields for the magistrate’s signature and date. On a telephone warrant, the applicant writes the judge’s name and date of issue. If the applicant makes a mistake in transcribing the terms, the copy may not be “in substance identical” (reg 14(2)(b)), and the judge may refuse to give it authority. This risk is acute in urgent after‑hours scenarios.

Treatment warrant remains in force only 30 days or until the treatment order ceases, whichever is less. Form 2 makes this clear. If the warrant is not executed within that period, it expires. An officer who executes it after expiry is acting without authority.

The warrant authorises entry at “any reasonable time”, but the Form says “enter, at any reasonable time, a place”. The term “reasonable time” is not defined. An entry at 3 am may be unreasonable unless the officer believes the person at risk is likely to be there. A court may later find the entry unlawful if time was unreasonable.

The forms use checkboxes and optional deletions. Form 1 and Form 2 both say “* Delete if not applicable”. If an applicant fails to delete an inapplicable option, the form may be ambiguous. For instance, if the applicant is both an assessor and an authorised officer, they should check one; but deleting both options would leave nothing. The instructions are not in the text of the regulation; they are embedded in the forms. Practitioners must read the schedule carefully.

Compliance with the regulations requires attention to process, documentation and timing. The following steps cover the main obligations for police officers, authorised persons, community councils, approved carers and warrant applicants.

For records of searches and seizures (reg 6). Ensure that each search or seizure under Part 2 of the Act is logged immediately or as soon as practicable. Use a standardised log that captures: a brief description of the actions, the officer’s name/rank/number, the date/time/place, the person’s age (or approximate) and gender, and details of any volatile substance seized. If the substance is later analysed or destroyed, note that. The log should be signed and kept in a secure register. Even if the search does not result in an apprehension, a record is required under section 12 of the Act. Failure to record may make it harder to justify the search in any later proceedings.

For records of apprehensions (reg 7). The record must be even more detailed: include the name (if given), age, gender, the carer’s name and address if released into care (s 21(1)(a)), the responsible adult’s details if released to them (s 21(1)(b)), and whether a parent or guardian was informed. If a child is taken to a police station under s 22(3), record the time and place of release, and whether the parent was informed (s 22(4)). If efforts were made to inform but failed, note the attempts. The record should be made contemporaneously; a court will give less weight to a record prepared days later.

For holding an apprehended child in a police cell (reg 8). Before placing a child in a cell, verify each of the five conditions: (a) the station is in a council area; (b) the child resides in that council area; (c) a community council member has been consulted and has given approval (preferably in writing); (d) an approved carer is available and on duty to supervise directly; and (e) an emergency response plan exists for that station and is current. If any condition is not met, do not use the cell. Instead, release the child into the care of a responsible adult, take them to a place of safety, or use alternative arrangements. Police should keep a checklist and attach the council’s written approval and the approved carer’s name to the record.

For community councils and local authorities. If asked to approve a child being held in a police cell, the council member should consider the child’s welfare, the availability of alternative care, and the condition of the cell. Approval should be documented (email, minute, signed note). Similarly, when approving an approved carer (reg 9), the council should assess the person’s fitness, knowledge and ability. The council should maintain a list of approved carers and review them periodically. If the council withholds approval, it should give reasons to the police.

For approved carers. Ensure you meet the criteria of reg 9(2): be a fit and proper person; have the necessary knowledge or qualifications (e.g., first aid, child care training); and understand the emergency response plan. Cooperate with police in developing or updating the plan. When a child is placed in your care, remain with them at all times. If an emergency arises, follow the plan immediately. The regulations do not specify that the carer must be paid, but you should clarify with the police whether any compensation or indemnity is provided.

For treatment warrant applicants (regs 11-14). Use only Form 1 (application) and Form 2 (warrant) as prescribed. Complete all fields; delete inapplicable options. Attach a true copy of the treatment order. State grounds for belief that the person has not participated in the treatment program - these must be more than speculation. Have the application sworn or declared before a magistrate (the witness on Form 1). If applying by telephone, call the Local Court registry nearest to the person at risk. Follow the judge’s instructions precisely: write the terms of the warrant verbatim on two copies, write the judge’s name and the date/time of issue on each, and forward one copy to the judge. Keep the other copy to execute. After execution, produce the warrant or a copy (as required by Form 2) to any person at the place. If the warrant is not executed within 30 days, it expires; do not rely on it beyond that date.

For all actors, maintaining a paper trail is the best defence. The regulations do not require any particular audit, but any civil or criminal proceedings will turn on the records. Practitioners advising clients subject to a search, seizure or treatment warrant should immediately request copies of all records made under these regulations. If the records are missing or incomplete, that may form the basis of a challenge.