1Short title
This Act may be cited as the Misuse of Drugs Act 1981.
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This Act was passed before the online parliamentary record we can search begins (1997). Any explanatory memorandum or second reading speech for its bill is in the printed parliamentary papers and Hansard.
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This Act may be cited as the Misuse of Drugs Act 1981.
This Act shall come into operation on a day to be fixed by proclamation.
In this Act, unless the contrary intention appears —
adult means a person who has reached 18 years of age;
analyst means analyst registered under section 203 of the Health (Miscellaneous Provisions) Act 1911;
approved analyst means —
a person declared under section 3A to be an approved analyst; or
a person belonging to a class prescribed for the purposes of this definition;
approved botanist means a botanist declared under section 3A to be an approved botanist;
authorised prescription means a prescription issued by a prescriber as those terms are defined in the Medicines and Poisons Act 2014 section 7(1);
Border Search Area (BSA) has the meaning given in section 20N(1);
botanist means a person who —
holds a science degree in, or to a major extent in, botany awarded by —
a university in Australia; or
a prescribed university;
and
has had not less than 2 years practical experience in plant taxonomy;
cannabis means plant of the genus Cannabis (by whatever name designated) or part of that plant;
cannabis resin means separated resin, whether crude or purified, obtained from cannabis;
category 1 item has the meaning given in section 12;
category 2 item has the meaning given in section 12;
child means a person who is under 18 years of age;
Commissioner means the Commissioner of Police appointed under the Police Act 1892;
controlled precursor means a category 1 item or a category 2 item;
dangerous substance means a substance (other than a prohibited drug or prohibited plant) that is noxious or volatile;
drug detection device means an electronic device, or a system that uses or involves an electronic device, of a type approved by the Commissioner for the purpose of detecting the presence of any of the following —
a prohibited drug;
a prohibited plant;
a controlled precursor;
drug detection dog means a dog trained to detect the presence of any of the following —
a prohibited drug;
a prohibited plant;
a controlled precursor;
drug of addiction means —
a Schedule 8 poison as defined in the Medicines and Poisons Act 2014 section 3; or
a Schedule 9 poison as defined in the Medicines and Poisons Act 2014 section 3;
heroin means the drug commonly known as heroin and includes any substance containing diacetylmorphine or its salts and any preparation, admixture or extract containing diacetylmorphine or any such salt;
industrial hemp has the meaning given to that term in section 3(1) of the Industrial Hemp Act 2004;
industrial hemp seed has the meaning given to that term in section 3(1) of the Industrial Hemp Act 2004;
medical practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession;
methylamphetamine means the prohibited drug referred to in Schedule VII item 8;
opium means spontaneously coagulated juice obtained from the capsules of the opium poppy Papaver somniferum;
preliminary drug detection test means —
leading or otherwise placing a drug detection dog in the vicinity of a person or property; or
using a drug detection device in relation to a person or property;
processed industrial hemp means any product made from industrial hemp or industrial hemp seed that —
does not contain more than 1% of tetrahydrocannabinol; and
does not contain viable whole cannabis seed; and
is not manufactured in a form to be inhaled;
prohibited drug means drug to which this Act applies by virtue of section 4;
prohibited plant means plant to which this Act applies by virtue of section 4, or part of that plant;
sample, in relation to any thing, means a sample of the thing taken by an approved analyst or an approved botanist under section 26A(a);
simple offence means simple offence under this Act;
specified drug means a substance that is prescribed to be a specified drug by regulations made under section 3B;
summary court means court of summary jurisdiction constituted by a magistrate sitting alone;
to cultivate, in relation to a prohibited plant, includes to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant;
to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb “to possess” have correlative meanings;
to supply includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied;
undercover officer means a participant or a corresponding participant as those terms are defined in the Criminal Investigation (Covert Powers) Act 2012 section 5;
undercover operation means an authorised operation or corresponding authorised operation as those terms are defined in the Criminal Investigation (Covert Powers) Act 2012 section 5;
vehicle includes aircraft, hovercraft, vessel and any other means of transportation.
In the case of liquid preparations, percentages shall, unless other provision in that behalf is made by the regulations, be calculated on the basis that a preparation containing 1% of a substance means a preparation in which one gram of the substance, if a solid, or one ml of the substance, if a liquid, is contained in every 100 ml of the preparation, and so in proportion for any greater or lesser percentage.
[Section 3 amended: No. 50 of 1990 s. 7; No. 20 of 1991 s. 57; No. 32 of 1994 s. 3(2); No. 44 of 1995 s. 4; No. 3 of 1998 s. 3; No. 9 of 2003 s. 28; No. 1 of 2004 s. 50; No. 4 of 2004 s. 58; No. 59 of 2004 s. 141; No. 62 of 2004 s. 4; No. 50 of 2006 Sch. 3 cl. 15; No. 22 of 2008 Sch. 3 cl. 37; No. 42 of 2009 s. 21; No. 35 of 2010 s. 118; No. 45 of 2010 s. 5; No. 56 of 2011 s. 4; No. 55 of 2012 s. 118; No. 13 of 2014 s. 166; No. 19 of 2016 s. 101; No. 47 of 2016 s. 4; No. 3 of 2017 s. 4; No. 15 of 2018 s. 6; No. 16 of 2023 s. 4.]
3A. Approved analysts and botanists
The Commissioner may by notice published in the Gazette declare —
an analyst to be an approved analyst for the purposes of this Act; or
a botanist to be an approved botanist for the purposes of this Act.
The Commissioner may by further notice published in the Gazette amend or revoke a notice under this section.
[Section 3A inserted: No. 44 of 1995 s. 5.]
The Governor may, on the recommendation of the Minister and the Minister responsible for administering the Medicines and Poisons Act 2014, make regulations prescribing a substance to be a specified drug for the purposes of this Act.
A recommendation that a substance be prescribed to be a specified drug may only be made if the relevant Minister is satisfied that there is high propensity for the substance to be misused, abused, used illicitly or diverted for the manufacture of a substance with a high propensity for misuse, abuse or illicit use.
[Section 3B inserted: No. 13 of 2014 s. 167.]
Subject to subsection (4), the drugs to which this Act applies are —
drugs of addiction; and
specified drugs; and
whether or not they are also drugs of addiction or specified drugs, the drugs specified in Schedule I.
Subject to subsection (3), the plants to which this Act applies are —
plants from which a drug of addiction may be obtained, derived or manufactured; and
whether or not they are also plants referred to in paragraph (a), the plants specified in Schedule II.
This Act does not apply to the non‑viable seeds of the opium poppy Papaver somniferum.
This Act does not apply to processed industrial hemp.
[Section 4 amended: No. 1 of 2004 s. 51; No. 13 of 2014 s. 168.]
This Act is subject to the Criminal Appeals Act 2004 section 46C.
[Section 5A inserted: No. 9 of 2012 s. 10.]
In this section —
appropriate licence has the meaning given in the Medicines and Poisons Act 2014 section 12;
appropriate permit has the meaning given in the Medicines and Poisons Act 2014 section 12;
professional authority has the meaning given in the Medicines and Poisons Act 2014 section 3.
For the purposes of this Act the manufacture or preparation of a prohibited drug is authorised under the Medicines and Poisons Act 2014 if the prohibited drug is manufactured —
under an appropriate licence or a professional authority; and
in accordance with regulations made under that Act.
For the purposes of this Act, the sale or supply of a prohibited drug is authorised under the Medicines and Poisons Act 2014 if the prohibited drug is supplied —
under an appropriate licence, an appropriate permit or a professional authority; and
in accordance with regulations made under that Act.
For the purposes of this Act, a person is authorised under the Medicines and Poisons Act 2014 to manufacture, prepare, sell or supply a prohibited drug if —
the person —
holds an appropriate licence or an appropriate permit that authorises the manufacture or supply of the drug; or
is authorised by a professional authority to manufacture or supply the drug; or
is an employee or agent of a person referred to in subparagraph (i) or (ii);
and
the manufacture, preparation, sale or supply is in accordance with the licence, permit or authority.
For the purposes of this Act, a person is authorised under the Medicines and Poisons Act 2014 to possess a prohibited drug if —
the drug is a Schedule 4 or 8 poison as defined in the Medicines and Poisons Act 2014 section 3 and possession of the drug by the person would not be an offence under the Medicines and Poisons Act 2014 section 14(4); or
the drug is a Schedule 9 poison as defined in the Medicines and Poisons Act 2014 section 3 and possession of the drug by the person would not be an offence under Medicines and Poisons Act 2014 section 17.
For the purposes of this Act a person is authorised under the Medicines and Poisons Act 2014 to use a prohibited drug if the drug is prescribed for the person by the holder of a professional authority who is authorised under the Medicines and Poisons Act 2014 to prescribe the drug to the person and the use is in accordance with the instructions of the prescriber.
For the purposes of this Act, an investigator as defined in the Medicines and Poisons Act 2014 section 3 is authorised to supply, obtain or possess a prohibited drug if the drug is supplied, obtained or possessed in the course of conducting an investigation under that Act.
[Section 5B inserted: No. 13 of 2014 s. 169.]
For the purposes of this Act, a person is authorised under the Voluntary Assisted Dying Act 2019 to prepare, sell or supply a prohibited drug if —
the person is authorised by section 58, 59, 63 or 67 of that Act to prepare or supply the drug; and
the preparation or supply is in accordance with that Act.
For the purposes of this Act, a person is authorised under the Voluntary Assisted Dying Act 2019 to possess a prohibited drug if —
the person is authorised by section 58, 59, 63, 67, 75 or 77 of that Act to receive or possess the drug; and
the receipt or possession is in accordance with that Act.
For the purposes of this Act, a person is authorised under the Voluntary Assisted Dying Act 2019 to use a prohibited drug if —
the person is authorised by section 58 or 59 of that Act to prepare, self‑administer or administer the drug; and
the preparation, self‑administration or administration is in accordance with that Act.
[Section 5C inserted: No. 27 of 2019 s. 181.]
A person who —
being the occupier of any premises, knowingly permits those premises to be used for the purpose of —
the manufacture or preparation of a prohibited drug or prohibited plant for use; or
the manufacture, preparation, sale, supply or use of a prohibited drug or prohibited plant;
or
being the owner or lessee of any premises, knowingly permits those premises to be used for the purpose of using a prohibited drug or prohibited plant; or
is knowingly concerned in the management of any premises used for any of the purposes referred to in paragraphs (a) and (b); or
[(d) deleted]
is found in any place which is then being used for the purpose of smoking a prohibited drug or prohibited plant other than cannabis,
commits a simple offence.
In subsection (1) —
owner, in relation to any premises, includes the person entitled to receive the rent of those premises and the person to whom the rent of those premises is paid.
A person does not commit a simple offence under subsection (1)(a), (b) or (c) by reason only that premises are being used for the purpose of the manufacture, preparation, sale, supply or use of a prohibited drug or prohibited plant if the person proves —
that the manufacture, preparation, sale or supply of the drug or plant was authorised under this Act or the Medicines and Poisons Act 2014; or
that the preparation, sale or supply of the drug was by a person authorised under the Voluntary Assisted Dying Act 2019 to prepare, sell or supply the drug; or
that the use of the drug or plant was by a person authorised under this Act, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019 to use the drug or plant.
[Section 5 amended: No. 52 of 2003 s. 28; No. 44 of 2010 s. 4; No. 56 of 2011 s. 5; No. 13 of 2014 s. 170; No. 27 of 2019 s. 182.]
A person commits a crime if the person —
with intent to sell or supply it to another, has in his or her possession a prohibited drug; or
manufactures or prepares a prohibited drug; or
sells or supplies, or offers to sell or supply, a prohibited drug to another person.
A person who has in his or her possession or uses a prohibited drug commits a simple offence.
A person does not commit a crime under subsection (1) or a simple offence under subsection (2) by reason only of the person having in his or her possession a prohibited drug if the person proves that —
he or she was authorised by or under this Act, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019 to have possession of the drug; or
he or she had possession of the drug only for the purpose of delivering it to a person authorised to possess the drug under this Act, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019 and he or she took all reasonable steps to deliver the drug to the person; or
he or she had possession of the drug for the purpose of analysing, examining or otherwise dealing with it for the purposes of this Act in his or her capacity as an analyst, botanist or other expert.
A person does not commit a crime under subsection (1) by reason only that the person manufactures, prepares, sells or supplies a prohibited drug if the person proves that he or she was authorised to manufacture, prepare, sell or supply the drug under this Act, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019.
A person does not commit a simple offence under subsection (2) by reason only of using a prohibited drug if the person proves that he or she was a person authorised under this Act, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019.
[Section 6 inserted: No. 13 of 2014 s. 171; amended: No. 27 of 2019 s. 183.]
A person commits a crime if the person —
with intent to sell or supply a prohibited plant, or any prohibited drug obtainable from a prohibited plant, to another person, has in his or her possession or cultivates the prohibited plant; or
sells or supplies, or offers to sell or supply, a prohibited plant to another person.
A person who has in his or her possession or cultivates a prohibited plant commits a simple offence.
A person does not commit a crime under subsection (1) or a simple offence under subsection (2) by reason only of the person having in his or her possession a prohibited plant if the person proves that —
he or she was authorised by or under this Act, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019 to have possession of a prohibited drug obtainable from the plant; or
he or she had possession of the plant only for the purpose of delivering it to a person authorised to have possession of a drug obtainable from the plant under this Act, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019 and he or she took all reasonable steps to deliver the drug to the person; or
he or she had possession of the plant for the purpose of analysing, examining or otherwise dealing with it for the purposes of this Act in his or her capacity as an analyst, botanist or other expert.
[Section 7 inserted: No. 13 of 2014 s. 171; amended: No. 27 of 2019 s. 184.]
A person who sells or supplies, or offers to sell or supply, to another, any thing that the person knows will be used to cultivate a prohibited plant contrary to section 7(1)(a) or (2) by hydroponic means commits an indictable offence.
A court convicting a person of the offence under subsection (1) may, on the application of the Director of Public Prosecutions or a police prosecutor, in addition order that the person be prohibited for a period set by the court (but not exceeding 2 years) from selling or supplying, or offering for sale or supply, to another, any thing that may be used to cultivate plants by hydroponic means.
A person who contravenes an order under subsection (2) is guilty of a simple offence.
[Section 7A inserted: No. 52 of 2003 s. 29.]
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