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Police Powers of Search and Seizure

Search and seizure of graffiti implements

Previously, the police had difficulty charging graffiti vandals unless they caught them in the act of marking graffiti. The Graffiti Prevention Act 2007 provides police with greater powers to search for and seize graffiti-related items. This will help police detect and deter graffiti offenders and prevent illegal graffiti from being marked.

Police will have the power to search a person if they reasonably believe they have a spray paint can in their possession near public transport infrastructure, or while a person is trespassing.  They can then seize graffiti-related items that may be evidence of an offence including videotapes of people marking graffiti and examples of tags and graffiti designs.

Search Warrants

With a warrant, police can search premises and seize graffiti implements or related items.

Without a warrant, police can search a person or vehicle on or near public transport, or if trespassing. They can do this if they reasonably suspect the person is in possession of a prescribed graffiti implement, that is a spray paint can, without lawful excuse. A lawful excuse is that the young person needs the spray paint for work.

Search and seizure requirements for young people under 18

Anyone under 14 years of age cannot be searched for graffiti implements.

If a police officer needs to search someone aged between 14 and 18 years they must follow special procedures. These special procedures consist of a pat-down search over the person's outer clothing. In some cases a police officer may request that the person remove their outer clothing, including gloves, hat, shoes and headgear so it may be searched and the officer may conduct a pat-down search of the next layer of clothing. A police officer can also search the exterior and interior of a car, bag or package.

If the police officer suspects the person they are about to search is under the age of 18 years and is inhaling or will inhale a volatile substance, the officer must stop the search and deal with the person under specific provisions set out in Division 2 or Part IV of the Drugs, Poisons and Controlled Substances Act 1981. This Act provides for a proactive health response to young people suspected of chroming.

Police can apprehend young people under the age of 18, search them, remove any volatile substances or items used to inhale, and then connect the young person with a responsible adult, such as parent, care worker or alcohol and drug service. More information about solvent abuse, including a 'Responsible sale of solvents: Retailers Kit' is available on the Department of Human Services website.