Weapons Laws
Weapons search in a designated area
The law changed on 22 August 2010 giving police extra powers to search people for weapons in particular areas, called 'designated areas'. Police do not need a warrant to search in a designated area and if police make an 'unplanned designation', they do not need to warn the public where the searches will happen.
What is a designated area?
Police can declare any public area to be a designated area if:
- more than one incident of violence or disorder involving weapons has occurred during the last 12 months or
- an event is going to be held in that area and violent incidents involving weapons have occurred when the event has been held before (even if the event was at a different location)
- police get information to say that an incident involving the use of weapons is about to happen.
The police must believe that there is a likelihood that the violence or disorder will happen again. 'Likely' does not mean more likely than not.
Only an inspector or more senior police officer has the power to declare an area to be designated.
How will people know which areas are designated?
Sometimes they will not know. Police do not have to notify the public if they want to act quickly. The Police Commissioner or Assistant Commissioner is authorised to make an unplanned declaration in this case (s. 10E).
How search areas will be publicised
In a planned designation the location of random search areas must be published in:
- the Victoria Government Gazette (VGG)
- a major daily newspaper at least a week before the police exercise these powers.
This publication has to happen at least 7 days before the search begins.
See ss. 10D(4), 10D(5), 10D(6)-Control of Weapons Act 1990
Limits on designating an area
The Act imposes some restrictions on the powers to designate an area:
- If reason for the designation relates to a particular event (like a music festival) searches may only be carried out during that event.
- An area can only be treated as a designated area for up to 12 hours (but there is no limit for an event).
- There are also limits on how frequently an area can be designated.
- The area must not be any larger than is reasonably necessary to enable police to effectively respond to the threat of violence or disorder.
Time between declarations of an area
There must be at least 10 days between the end of one designation and the beginning of the next.
However police may make an 'unplanned designation' under s. 10E, for this area during the 10 day restriction.
See ss. 10D(2), 10D(3)-Control of Weapons Act 1990
Before police conduct a search they must:
- explain what they are going to do
- say why they suspect that the person is carrying a weapon
- tell the person their name, rank and place of duty
- give some form of identification if they are not wearing a uniform.
Police may confiscate anything that they believe is a weapon.
What kind of search can police do?
The police can:
- use an initial electronic device search (for example, a metal detector)
- request that the person empty their pockets, bag etc.
- pat or rub their hands over the person's outer clothing (pat-down search)
- require the person to take off their outer clothing (for example, a jacket)
- require the person to have a strip search (if they reasonably believe this is necessary and they follow the rules set out in the Act).
Search may include a strip search
Although the police have the powers to do a strip search, they must only do this if other kinds of searches can't be used in the circumstances. They are more likely to use a metal detector.
Police have to protect the dignity of the person who is searched.
- See Schedule 1 and s. 10G for police powers to search in a designated area-Control of Weapons Act 1990
Police may detain someone for as long as is reasonably necessary to conduct the search.
If strip searched, police may require name and address
If police intend to conduct a strip search of a person in a designated area, they have the power to require that person to provide their name and address.
Penalties
A person can be issued with a fine if they:
- refuse to give their name and address without a reasonable excuse before being strip searched-1 penalty unit
- give false name and address-1 penalty unit
- try to prevent police conducting a search in a designated area-2 penalty units
Penalty if weapons are found
- are over 16 and they are carrying a weapon without a lawful excuse (first offence only) $1,000
- are over 16 and are caught carrying a weapon unlawfully near licensed premises ($2,000).
If the person found carrying a weapon is under 16 or if this is not the person's first offence, they will have to appear in court.
What weapons can police search for?
There are three separate categories of weapons that police can search for in a public place. These are:
- prohibited weapons (weapons that are banned), like flick knives, daggers, and knuckle dusters
- controlled weapons (items that can be used legitimately in some situations but are potentially dangerous in other situations, like a kitchen knife, martial arts equipment, hammer, spear-gun or nail gun)
- dangerous objects (anything that has been modified to make it dangerous) broken bottle, sharpened stick, cricket bat with nails hammered into it.
The Victoria Police website allows you to search for particular items to find out if they are unlawful (see link below).
Unplanned or surprise searches
Sometimes police do not have to let the public know when they intend to conduct a random search. This is called an unplanned designation. The law changed on 22 August to increase the circumstances when police are able to conduct these searches.
Unplanned designated areas
The Police Commissioner or Deputy Commissioner has the power to declare an area to be a designated area without publishing a declaration if they are satisfied that:
- it likely that violence or disorder involving weapons will happen during the designation and
- it is necessary so that the police can use the search powers to prevent or deter any violence or disorder
or
- at least one incident of violence or disorder of involving weapons in that place within the last 12 months and
- it is likely that the unlawful behaviour involving weapons will recur.
The same limits apply to the area about the length of time that an area can be designated and the size of the area to be designated. The main difference is that there is no need for police to publish this in the papers or the gazette.
See ss. 10E, 10F-Control of Weapons Act 1990
What does 'likely' mean?
The August amendments to the law makes it clear that 'likely' does not imply 'more likely than not'.
Legislation
Control of Weapons Act 1990
- s. 10C-defines a 'designated area' as an area declared under ss. 10D or 10E
- s. 10D-explains what is required
- s. 10F-the chief of police can only delegate the power to designate an area to an officer of the rank of inspector.
- s. 10G-police search powers of people in designated areas
- s. 10H-power to search vehicles in designated areas
- s. 10I-information that must be given to someone before police conduct a search of a person, vehicle or thing under the designated area search powers
- s. 10K-gives police the power to require a person who is strip searched to give their name and address
- s. 10L-offence and penalty for obstructing police or failing to follow a direction under Schedule 1
- s. 11C-establishes infringement penalties for possessing or carrying a controlled weapon
- s. 10E-unplanned designation of an area
- s. 10EA-defines 'likely' as not meaning greater than 50% chance
- s. 10F-the chief of police can only delegate the power to the assistant commissioner for an unplanned delegation
