Misuse of Drugs Amendment Act 2010 (WA)

Western Australia

Misuse of Drugs Amendment Act 2010

Western Australia

Misuse of Drugs Amendment Act 2010

CONTENTS

1.	Short title	2
2.	Commencement	2
3.	Act amended	2
4.	Section 5 amended	2
5.	Section 21 amended	3
6.	Section 26 amended	3
7.	Section 27 amended	4
8.	Section 28 replaced	5

28.             Compensation for destroyed seized

property 5

9. Section 43 inserted 6

43. Transitional provisions (Sch. IX) 6

10.	Schedule IX inserted	6
Schedule IX — Transitional provisions

1.               Property subject to holding orders under

repealed s. 28 7

Western Australia

Misuse of Drugs Amendment Act 2010

No. 44 of 2010

An Act to amend the Misuse of Drugs Act 1981.

[Assented to 28 October 2010]

The Parliament of Western Australia enacts as follows:

Misuse of Drugs Amendment Act 2010

s. 1

1.             Short title

This is the Misuse of Drugs Amendment Act 2010.

2.             Commencement

This Act comes into operation as follows:

(a)	sections 1 and 2 — on the day on which this Act receives the Royal Assent;
(b)	the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3.             Act amended

This Act amends the Misuse of Drugs Act 1981.

4.             Section 5 amended

After section 5(2) insert:

(3)

A person does not commit a simple offence under

subsection (1)(d) by reason only of his having in his

possession a pipe or utensil if he proves —

(a) that he had possession of the pipe or utensil —

(i)      only for the purpose of delivering it to a person authorised under this Act or the Poisons Act 1964 to have possession of any prohibited drug or prohibited plant in or on it; and

(ii)      in accordance with the authority in writing of the person so authorised,

and that, after taking possession of the pipe or

utensil, he took all such steps as were

reasonably open to him to deliver it into the

possession of that person; or

Misuse of Drugs Amendment Act 2010

s. 5

(b) that he had possession of the pipe or utensil only for the purpose of analysing material in or on it, examining it or otherwise dealing with it for the purposes of this Act in his capacity as an analyst, botanist or other expert.

5.             Section 21 amended

In section 21 delete the definition of holding order.

6.             Section 26 amended

(1) In section 26(1):

(a) delete “requires, may seize that thing and —” and insert:

requires —

(b)	delete paragraphs (a) and (b) and insert:
(a) in the case of —

(i)      a thing that is a prohibited drug, prohibited plant or dangerous substance; or

(ii)      a thing that is contaminated by a dangerous substance,

may seize and detain the thing until it is dealt

with under section 27; or

(b) in the case of any other thing, may seize it.

(2) After section 26(1) insert:

(2A)

If under subsection (1)(b) a thing may be seized, the

Criminal Investigation Act 2006 Part 13, with any

necessary changes, applies to and in relation to the

exercise of the power to seize the thing.

Misuse of Drugs Amendment Act 2010

s. 7

(2B)

If under subsection (1)(b) a thing is seized, the

Criminal Investigation Act 2006 Part 13 and the

Criminal and Found Property Disposal Act 2006, with

any necessary changes, apply to and in relation to it.

7.             Section 27 amended

(1)

In section 27(1) delete “prohibited drug, prohibited plant or

dangerous substance” (each occurrence) and insert:

relevant thing

(2)

In section 27(2):

(a) delete “prohibited drug, prohibited plant or dangerous substance” and insert:

relevant thing

(b)	delete paragraph (b) and insert:
(b) sufficient samples have been taken of or from the thing,

(3) After section 27(5) insert:

(6A) If —

(a)	a court convicts a person of an offence under this Act that involved the possession or use of a relevant thing; and
(b)	the relevant thing was destroyed under this section,

the court may order the person to pay the costs

reasonably incurred by the State in destroying the

Misuse of Drugs Amendment Act 2010

s. 8

thing, other than costs relating to the employment of

police officers or the use of equipment or facilities

under the control or management of the Commissioner.

(4) In section 27(6):

(a) delete “subsection (2)(b) —” and insert:

this section —

(b) insert in alphabetical order:

relevant thing means a prohibited drug, prohibited

plant or dangerous substance or a thing contaminated

with a dangerous substance;

8.             Section 28 replaced

Delete section 28 and insert:

28.           Compensation for destroyed seized property

(1)

In this section —

seized property means a dangerous substance, or a

thing contaminated with a dangerous substance, seized

under section 26.

(2)

This section does not apply to or in respect of any

seized property that has been forfeited to the Crown.

(3)

If any seized property is destroyed —

(a) under section 27(1)(a)(i); or

(b) under an order made under section 27(1)(b),

a person who was entitled to possession of it when it

was seized is entitled to recover from the State (if

necessary, by action in a court of competent

Misuse of Drugs Amendment Act 2010

s. 9

jurisdiction) compensation equal to its market value at

the time it was seized.

(4)

If under section 27(4) any seized property is destroyed

and —

(a)	in the 12 months after the date on which the property was seized no person is charged with an offence that involved the possession, use, sale or supply of it; or
(b)	a person is charged with such an offence but is acquitted, whether at trial or on appeal, and any appeal against the acquittal is concluded,

any person who was entitled to possession of the

property when it was seized is entitled to recover from

the State (if necessary, by action in a court of

competent jurisdiction) compensation equal to its

market value at the time it was seized.

9.             Section 43 inserted

After section 42 insert:

43.           Transitional provisions (Sch. IX)

Schedule IX sets out transitional provisions.

10.           Schedule IX inserted

After Schedule VIII insert:

Misuse of Drugs Amendment Act 2010

s. 10

Schedule IX — Transitional provisions

[s. 43]

1.              Property subject to holding orders under repealed s. 28

(1)

In this clause —

repeal day means the day on which section 28 is repealed by

the Misuse of Drugs Amendment Act 2010 section 8.

(2)

If immediately before repeal day any property is subject to a

holding order granted under section 28, then on repeal

day —

(a)	the repealed section 28 ceases to apply to and in respect of the property and the holding order; and
(b)	the property is to be taken to be seized property for the purposes of the Criminal and Found Property Disposal Act 2006 and that Act applies to and in respect of it accordingly.