Misuse of Drugs Amendment Act 2011 (WA)
Western Australia
Misuse of Drugs Amendment Act 2011
Western Australia
Misuse of Drugs Amendment Act 2011
CONTENTS
Part 1 — Preliminary matters
| 1. | Short title | 2 |
| 2. | Commencement | 2 |
| Part 2 — Misuse of Drugs Act 1981 |
amended
| 3. | Act amended | 3 |
| 4. | Section 3 amended | 3 |
| 5. | Section 5 amended | 3 |
| 6. | Section 7B inserted | 3 |
| 7B. | Drug paraphernalia, offences as to | 3 |
| 7. | Section 8B amended | 6 |
| 8. | Sections 19A and 19B deleted | 6 |
| 9. | Section 34 amended | 6 |
| Part 3 — Bail Act 1982 amended | ||
| 10. | Act amended | 9 |
| 11. | Schedule 2 amended | 9 |
| Part 4 — Spent Convictions Act 1988 |
amended
| 12. | Act amended | 10 |
| 13. | Section 11 amended | 10 |
Misuse of Drugs Amendment Act 2011
Contents
Part 5 — Working with Children (Criminal Record Checking) Act 2004 amended
| 14. | Act amended | 11 |
| 15. | Schedule 2 amended | 11 |
Western Australia
Misuse of Drugs Amendment Act 2011
No. 56 of 2011
An Act to amend the Misuse of Drugs Act 1981 and to make consequential amendments to some other Acts.
[Assented to 21 November 2011]
The Parliament of Western Australia enacts as follows:
Misuse of Drugs Amendment Act 2011
| Part 1 | Preliminary matters |
| s. 1 | |
| Part 1 — Preliminary matters |
1. Short title
This is the Misuse of Drugs Amendment Act 2011.
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. |
Misuse of Drugs Amendment Act 2011
| Misuse of Drugs Act 1981 amended | Part 2 |
s. 3
Part 2 — Misuse of Drugs Act 1981 amended
3. Act amended
This Part amends the Misuse of Drugs Act 1981.
4. Section 3 amended
In section 3(1) insert in alphabetical order:
adult means a person who has reached 18 years of age;
5. Section 5 amended
| (1) | Delete section 5(1)(d). |
| (2) | Delete section 5(3). |
6. Section 7B inserted
After section 7A insert:
| 7B. | Drug paraphernalia, offences as to |
(1) In this section —
display, in relation to drug paraphernalia, includes to
authorise or allow drug paraphernalia to be displayed;
drug paraphernalia means —
| (a) | any thing made or modified to be used in connection with manufacturing or preparing a prohibited drug or a prohibited plant — |
(i) for administration to a person; or
(ii) for smoking, inhaling or ingesting by a person; or
Misuse of Drugs Amendment Act 2011
| Part 2 | Misuse of Drugs Act 1981 amended |
| s. 6 |
(iii) to be burned or heated so its smoke or fumes can be smoked or inhaled by a person;
| or |
| (b) | any thing made or modified to be used by a person — |
(i) to administer a prohibited drug or a prohibited plant to a person; or
(ii) to smoke, inhale or ingest a prohibited drug or a prohibited plant; or
(iii) to smoke or inhale the smoke or fumes resulting from burning or heating a prohibited drug or a prohibited plant.
| (2) | A person who displays any drug paraphernalia for sale in a retail outlet commits a simple offence. |
| Penalty: a fine of $10 000. | |
| (3) | A person who sells any drug paraphernalia to an adult commits a simple offence. |
| Penalty: a fine of $10 000. | |
| (4) | A person who sells any drug paraphernalia to a child commits a simple offence. |
| Penalty: a fine of $24 000 or imprisonment for 2 years |
or both.
| (5) | It is a defence to a charge of an offence under subsection (2), (3) or (4) to prove — |
| (a) | the accused was a person prescribed; or |
| (b) | the drug paraphernalia displayed or sold was a thing prescribed or of a class prescribed; or |
| (c) | the display or sale occurred in circumstances prescribed, |
for the purposes of that subsection.
Misuse of Drugs Amendment Act 2011
| Misuse of Drugs Act 1981 amended | Part 2 |
s. 6
| (6) | A person who is in possession of any drug paraphernalia in or on which there is a prohibited drug or a prohibited plant commits a simple offence. |
| Penalty: a fine of $36 000 or imprisonment for 3 years |
or both.
| (7) | It is a defence to a charge of an offence under subsection (6) to prove — |
| (a) | the accused was authorised by or under this Act or the Poisons Act 1964 to possess the prohibited drug or prohibited plant; or |
| (b) | the accused had possession of the drug paraphernalia — |
(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 drug
paraphernalia, the accused took all such steps
as were reasonably open to the accused to
deliver it into the possession of that person; or
| (c) | the accused had possession of the drug paraphernalia 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 or her capacity as an analyst, botanist or other expert. |
Misuse of Drugs Amendment Act 2011
| Part 2 | Misuse of Drugs Act 1981 amended |
| s. 7 |
7. Section 8B amended
| In section 8B(1) in the definition of minor cannabis related offence paragraph (a) after “section 5(1)(d)(i)” insert: |
or 7B(6)
8. Sections 19A and 19B deleted
Delete sections 19A and 19B.
9. Section 34 amended
| (1) | In section 34(1) delete “subsection (2),” and insert: | |
| subsections (2) and (3), | ||
| (2) | After section 34(2) insert: | |
|
| (a) | for a first offence the court must use one of only these sentencing options — |
(i) suspended imprisonment imposed under the Sentencing Act 1995 section 39 and Part 11;
(ii) conditional suspended imprisonment
imposed under section 39 and Part 12 of
that Act;
Misuse of Drugs Amendment Act 2011
| Misuse of Drugs Act 1981 amended | Part 2 |
s. 9
(iii) a term of imprisonment imposed under section 39 and Part 13 of that Act;
| and |
| (b) | for any subsequent offence (whether or not under the same provision) the court — |
(i) must impose a term of imprisonment of at least 6 months; and
(ii) must not suspend the term of imprisonment.
| (4) | If a court is sentencing a person for — |
| (a) | an offence under section 6(1)(b); or |
| (b) | an offence under section 7(1)(a) that involved cultivating a prohibited plant; or |
| (c) | an offence under section 14(1), |
committed in circumstances where the acts constituting
the offence endangered the life, health or safety of a
child under 16 years of age, and the person was an
adult when the offence was committed, then, despite
the Sentencing Act 1995 Part 5 —
| (d) | for a first offence the court must use one of only these sentencing options — |
(i) suspended imprisonment imposed under the Sentencing Act 1995 section 39 and Part 11;
(ii) conditional suspended imprisonment
imposed under section 39 and Part 12 of
that Act;
(iii) a term of imprisonment imposed under section 39 and Part 13 of that Act;
| and |
Misuse of Drugs Amendment Act 2011
| Part 2 | Misuse of Drugs Act 1981 amended | |
| s. 9 | ||
|
(i) must impose a term of imprisonment of at least 6 months; and
(ii) must not suspend the term of imprisonment.
| (5) | If a court is sentencing a person for — |
| (a) | an offence under section 6(1)(b); or |
| (b) | an offence under section 7(1)(a) that involved cultivating a prohibited plant; or |
| (c) | an offence under section 14(1), |
committed in circumstances where the acts constituting
the offence caused bodily harm (as defined in The
Criminal Code section 1(1) and (4)) to a child under
16 years of age, and the person was an adult when the
offence was committed, then, despite the Sentencing
Act 1995 Part 5, the court —
| (d) | must impose a term of imprisonment of at least 12 months; and |
| (e) | must not suspend the term of imprisonment. |
| (6) | The Minister must carry out a review of the operation and effectiveness of the amendments made to this section by the Misuse of Drugs Amendment Act 2011 section 9 as soon as practicable after the expiry of 3 years from the commencement of that section. |
| (7) | The Minister is to lay (or cause to be laid) a report of the review under this section before both Houses of Parliament as soon as practicable after the review is completed. |
Misuse of Drugs Amendment Act 2011
| Bail Act 1982 amended | Part 3 |
| s. 10 |
Part 3 — Bail Act 1982 amended
10. Act amended
This Part amends the Bail Act 1982.
11. Schedule 2 amended
In Schedule 2 item 2a after the row relating to s. 7(1) insert:
| s. 14(1) | Possessing a quantity of a category 1 item or a category 2 item in circumstances where the life, health or safety of a child under 16 years of age was endangered, or bodily harm (as defined in The Criminal Code section 1(1) and (4)) was caused to such a child, by the acts constituting the offence |
Misuse of Drugs Amendment Act 2011
| Part 4 | Spent Convictions Act 1988 amended |
| s. 12 |
Part 4 — Spent Convictions Act 1988 amended
12. Act amended
This Part amends the Spent Convictions Act 1988.
13. Section 11 amended
Delete section 11(6)(a)(i) and insert:
(i) section 5(1)(d)(i) or 7B(6); or
Misuse of Drugs Amendment Act 2011
| Working with Children (Criminal Record Checking) Act 2004 | Part 5 |
amended
s. 14
Part 5 — Working with Children (Criminal Record
Checking) Act 2004 amended
14. Act amended
| This Part amends the Working with Children (Criminal Record Checking) Act 2004. |
15. Schedule 2 amended
| In Schedule 2 in the item relating to the Misuse of Drugs Act 1981 insert in numerical order: |
| s. 7B(4) | Selling drug paraphernalia to a child |
0
0
0