Misuse of Drugs Act 1981 (WA)

Western Australia Misuse of Drugs Act 1981 Western Australia Misuse of Drugs Act 1981 Contents Part I — Preliminary 1. Short title 2 2. Commencement 2 3. Terms used 2 3A. Approved analysts and botanists 6 3B. Specified drugs 6 4. Drugs and plants to which Act applies 7 5A. Authority required for some investigations 7 5B. Authorisation under Medicines and Poisons Act 2014 8 5C. Authorisation under Voluntary Assisted Dying Act 2019 10 Part II — Offences relating to prohibited drugs and prohibited plants 5. Offences concerned with prohibited drugs and prohibited plants in relation to premises and utensils 11 6. Offences concerned with prohibited drugs generally 12 7. Offences concerned with prohibited plants generally 13 7A. Selling or supplying a thing knowing it will be used in hydroponic cultivation of prohibited plants 14 7B. Drug paraphernalia, offences as to 15 8A. Defences relating to industrial hemp or industrial hemp seed 17 Part IIIA — Cannabis intervention Division 1 — Preliminary 8B. Terms used 21 8C. Operation of Young Offenders Act 1994 unaffected 22 8D. Appointment of authorised persons 22 Division 2 — Cannabis intervention requirements 8E. CIR may be given for minor cannabis related offence 22 8F. Cannabis intervention requirement 23 8G. Young persons — special requirements about CIRs 24 8H. Referral of young persons at risk to juvenile justice teams 25 8I. Withdrawal of CIR 25 Division 3 — Cannabis intervention sessions 8J. Cannabis intervention session 26 8K. Benefit of completing CIS 26 8L. Extension of time to complete CIS 27 8M. Certificate of completion of CIS 27 Part IIIB — Psychoactive substances 8N. Terms used 28 8O. Application of this Part to particular substances 29 8P. Effect of representing substance as psychoactive substance 30 8Q. Manufacture, sale or supply of psychoactive substances 30 8R. Promoting psychoactive substances 31 8S. Powers of police officers for purposes of this Part 31 8T. Powers to seize and dispose of thing suspected of being psychoactive substance 32 8U. Analysis of seized thing may be requested 33 Part III — Procedure 9. Summary trial of some indictable offences 35 10. Alternative verdicts 36 11. Presumption of intent to sell or supply 36 Part IV — Controls relating to possession, sale, supply and storage of certain substances and things 12. Terms used 38 13. Part not applicable to possession, sale or supply of certain substances or things 38 14. Possession of certain substances or things 39 15. Sale or supply of category 1 items 40 16. Storage of category 1 items 41 17. Sale or supply of category 2 items 41 18. Offences relating to declarations under s. 15(1)(c) or 17(1)(b) 42 19. Powers of police officers for purposes of this Part 42 20. Regulations as to category 1 items and category 2 items 44 Part 4A — Targeted searches Division 1 — Preliminary 20A. Terms used 45 Division 2 — Authorisations 20B. Authorisation to exercise powers to search a vehicle or a person 46 20C. Authorisation to exercise powers to search premises 47 Division 3 — Ancillary provisions in relation to exercising powers 20D. Other written laws 48 20E. Assistance when exercising powers under this Part 48 20F. Use of force 49 Division 4 — Vehicle searches 20G. Powers of police officers in relation to searching vehicle in drug detection area 49 20H. Powers of police officers in relation to searching persons in a drug detection area 51 Division 5 — Searches of delivery business premises 20I. Powers of police officers in relation to premises 52 Division 6 — Offences 20J. Failure to comply with requirement of police officer 53 20K. Application of section 29 to exercise of powers conferred by or under this Part 54 Division 7 — Prescribed procedures 20L. Regulations as to the exercise of powers under this Part 54 Part 4B — Border Search Areas Division 1 — Preliminary 20M. Terms used 55 20N. Border Search Area (BSA) 55 Division 2 — Ancillary provisions in relation to exercising powers in Division 3 20O. Other written laws 58 20P. Assistance when exercising powers under Division 3 58 20Q. Use of force 58 Division 3 — Powers of authorised officers in public place in BSA 20R. Authorised officers and BSA authorisations 59 20S. Exercise of powers under Division 60 20T. Powers of authorised officers in relation to persons 60 20U. Powers of authorised officers in relation to vehicles 61 Division 4 — Offences 20V. Application of section 29 to exercise of powers conferred by or under this Part 63 20W. Failure to comply with requirement of authorised officer 63 Division 5 — Reporting, oversight and review 20X. Commissioner's reports 63 20Y. Annual report by Corruption and Crime Commission 64 20Z. Inspection of records by Corruption and Crime Commission 65 20ZA. Review of Part 66 Part V — Location, seizure, detention and disposal of things used in commission of offences 21. Terms used 67 22. Powers of police officers and approved persons in relation to manufacturers, sellers and suppliers of prohibited drugs and cultivators, sellers and suppliers of prohibited plants 67 23. Powers of police officers when things suspected of being used in commission of offences 68 24. Granting of search warrants in connection with prevention or detection of offences 69 25. Powers ancillary to power of search 70 26. Powers of police officers and others when things suspected of being used in commission of offences found, received or acquired 71 26A. Powers of approved analyst or approved botanist 72 27. Disposal of prohibited drugs and prohibited plants 72 27A. Analysis at request of accused 75 27B. Confidentiality 75 28. Compensation for destroyed seized property 76 29. Hindering police officers and approved persons in exercise of powers conferred by or under this Part 77 30. Approved persons 78 Part VI — General 31. Undercover officers 79 32. No limitation 79 32A. Drug trafficking 79 33. Attempts, conspiracies, incitements and accessories after the fact 82 34. Penalties 83 35. Liability of officers for offence by body corporate 87 37. Proof of exceptions 87 38. Certificate of approved analyst or approved botanist 88 38A. Accused may obtain copy of certificate 88 38B. Accused may object to use of certificate 89 38C. Order for costs of approved analyst or approved botanist 89 38D. Evidence of contents of standard 90 39. Delegation by Commissioner 90 40. Civil liability of persons acting under this Act 91 41. Regulations 91 42. Amendment of certain schedules 92 42A. Annual report to Minister on Part 4A 94 42B. Review of Part 4A 95 Part VII — Transitional provisions Division 1 — Preliminary 43. Interpretation Act 1984 not limited 96 44. Transitional regulations 96 Division 2 — Provisions for Cannabis Law Reform Act 2010 45. Terms used 97 46. CINs continue in force 97 47. Amounts outstanding in 12 months time under a CIN are to be taken to be paid 97 48. Transitional provisions (Sch. IX) 98 Schedule I — Drugs to which Act applies, notwithstanding anything in Medicines and Poisons Act 2014 Schedule II — Plants to which this Act applies Schedule III — Amounts of prohibited drugs determining court of trial Division 1 — General Division 2 — Steroids Schedule IV — Numbers of prohibited plants determining court of trial Schedule V — Amounts of prohibited drugs giving rise to presumption of intention to sell or supply same Division 1 — General Division 2 — Steroids Schedule VI — Numbers of prohibited plants giving rise to presumption of intention to sell or supply same or prohibited drugs obtainable from same Schedule 6A — Border Search Areas Division 1 — Descriptions of BSAs Division 2 — Plans of BSAs 1. Broome Port 174 2. Broome Airport 174 3. Port of Port Hedland 175 4. Port Hedland International Airport 176 5. Port of Dampier 177 6. Port of Ashburton (Onslow) 177 7. Port of Geraldton 178 8. Perth Airport 179 9. Fremantle Port (Inner Harbour) 180 10. Fremantle Port (Outer Harbour) 182 11. Jandakot Airport 186 12. Wyndham Port 186 13. Bunbury Port 187 14. Busselton Airport 188 15. Albany Port 189 16. Esperance Port 189 17. Eyre Highway, Eucla (WA/SA border) 190 18. Victoria Highway near Kununurra (WA/NT border) 191 19. Tanami Road (WA/NT border) 191 20. Duncan Road (WA/NT border) 192 21. Great Central Road (WA/NT border) 192 22. Rawlinna Rail Siding 193 Schedule VII — Amounts of prohibited drugs for purposes of drug trafficking Division 1 — General Division 2 — Steroids Schedule VIII — Numbers of prohibited plants for purposes of drug trafficking Schedule IX — Transitional provisions 1. Property subject to holding orders under repealed s. 28 211 Notes Compilation table 212 Uncommenced provisions table 217 Other notes 217 Defined terms Western Australia Misuse of Drugs Act 1981 An Act to prevent the misuse of certain drugs and plants and to provide for matters incidental thereto or connected therewith. Part I — Preliminary 1. Short title This Act may be cited as the Misuse of Drugs Act 1981. 2. Commencement This Act shall come into operation on a day to be fixed by proclamation. 3. Terms used (1) 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) a person declared under section 3A to be an approved analyst; or (b) 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 — (a) holds a science degree in, or to a major extent in, botany awarded by — (i) a university in Australia; or (ii) a prescribed university; and (b) 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) a prohibited drug; (b) a prohibited plant; (c) a controlled precursor; drug detection dog means a dog trained to detect the presence of any of the following — (a) a prohibited drug; (b) a prohibited plant; (c) a controlled precursor; drug of addiction means — (a) a Schedule 8 poison as defined in the Medicines and Poisons Act 2014 section 3; or (b) 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 — (a) leading or otherwise placing a drug detection dog in the vicinity of a person or property; or (b) 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 — (a) does not contain more than 1% of tetrahydrocannabinol; and (b) does not contain viable whole cannabis seed; and (c) 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. (2) 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 (1) The Commissioner may by notice published in the Gazette declare — (a) an analyst to be an approved analyst for the purposes of this Act; or (b) a botanist to be an approved botanist for the purposes of this Act. (2) 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.] 3B. Specified drugs (1) 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. (2) 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.] 4. Drugs and plants to which Act applies (1) Subject to subsection (4), the drugs to which this Act applies are — (a) drugs of addiction; and (b) specified drugs; and (c) whether or not they are also drugs of addiction or specified drugs, the drugs specified in Schedule I. (2) Subject to subsection (3), the plants to which this Act applies are — (a) plants from which a drug of addiction may be obtained, derived or manufactured; and (b) whether or not they are also plants referred to in paragraph (a), the plants specified in Schedule II. (3) This Act does not apply to the non‑viable seeds of the opium poppy Papaver somniferum. (4) This Act does not apply to processed industrial hemp. [Section 4 amended: No. 1 of 2004 s. 51; No. 13 of 2014 s. 168.] 5A. Authority required for some investigations This Act is subject to the Criminal Appeals Act 2004 section 46C. [Section 5A inserted: No. 9 of 2012 s. 10.] 5B. Authorisation under Medicines and Poisons Act 2014 (1) 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. (2) 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 — (a) under an appropriate licence or a professional authority; and (b) in accordance with regulations made under that Act. (3) 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 — (a) under an appropriate licence, an appropriate permit or a professional authority; and (b) in accordance with regulations made under that Act. (4) 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 — (a) the person — (i) holds an appropriate licence or an appropriate permit that authorises the manufacture or supply of the drug; or (ii) is authorised by a professional authority to manufacture or supply the drug; or (iii) is an employee or agent of a person referred to in subparagraph (i) or (ii); and (b) the manufacture, preparation, sale or supply is in accordance with the licence, permit or authority. (5) For the purposes of this Act, a person is authorised under the Medicines and Poisons Act 2014 to possess a prohibited drug if — (a) 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 (b) 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. (6) 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. (7) 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.] 5C. Authorisation under Voluntary Assisted Dying Act 2019 (1) 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 — (a) the person is authorised by section 58, 59, 63 or 67 of that Act to prepare or supply the drug; and (b) the preparation or supply is in accordance with that Act. (2) For the purposes of this Act, a person is authorised under the Voluntary Assisted Dying Act 2019 to possess a prohibited drug if — (a) the person is authorised by section 58, 59, 63, 67, 75 or 77 of that Act to receive or possess the drug; and (b) the receipt or possession is in accordance with that Act. (3) For the purposes of this Act, a person is authorised under the Voluntary Assisted Dying Act 2019 to use a prohibited drug if — (a) the person is authorised by section 58 or 59 of that Act to prepare, self‑administer or administer the drug; and (b) the preparation, self‑administration or administration is in accordance with that Act. [Section 5C inserted: No. 27 of 2019 s. 181.] Part II — Offences relating to prohibited drugs and prohibited plants 5. Offences concerned with prohibited drugs and prohibited plants in relation to premises and utensils (1) A person who — (a) being the occupier of any premises, knowingly permits those premises to be used for the purpose of — (i) the manufacture or preparation of a prohibited drug or prohibited plant for use; or (ii) the manufacture, preparation, sale, supply or use of a prohibited drug or prohibited plant; or (b) 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 (c) 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] (e) 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. (2) 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. (3) 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 — (a) 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 (aa) 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 (b) 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.] 6. Offences concerned with prohibited drugs generally (1) A person commits a crime if the person — (a) with intent to sell or supply it to another, has in his or her possession a prohibited drug; or (b) manufactures or prepares a prohibited drug; or (c) sells or supplies, or offers to sell or supply, a prohibited drug to another person. (2) A person who has in his or her possession or uses a prohibited drug commits a simple offence. (3) 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 — (a) 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 (b) 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 (c) 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. (4) 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. (5) 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.] 7. Offences concerned with prohibited plants generally (1) A person commits a crime if the person — (a) 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 (b) sells or supplies, or offers to sell or supply, a prohibited plant to another person. (2) A person who has in his or her possession or cultivates a prohibited plant commits a simple offence. (3) 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 — (a) 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 (b) 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 (c) 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.] 7A. Selling or supplying a thing knowing it will be used in hydroponic cultivation of prohibited plants (1) 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. (2) 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. (3) A person who contravenes an order under subsection (2) is guilty of a simple offence. [Section 7A inserted: No. 52 of 2003 s. 29.] 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 (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. (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, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019 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, the Medicines and Poisons Act 2014 or the Voluntary Assisted Dying Act 2019 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. [Section 7B inserted: No. 56 of 2011 s. 6; amended: No. 13 of 2014 s.172; No. 27 of 2019 s. 185.] [8. Deleted: No. 13 of 2014 s. 173.] 8A. Defences relating to industrial hemp or industrial hemp seed (1) In proceedings against — (a) a person who may process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or (b) an employee, agent or contractor of a person referred to in paragraph (a), for an offence against section 5(1)(a)(i) involving the manufacture or preparation of a prohibited drug or prohibited plant for use, it is a defence for the person to prove that the prohibited drug or prohibited plant is industrial hemp or industrial hemp seed. (2) In proceedings against — (a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or (b) an employee, agent or contractor of a person referred to in paragraph (a), for an offence against section 5(1)(a)(ii) involving the manufacture, preparation, sale, supply or use of a prohibited drug or prohibited plant, it is a defence for the person to prove that the prohibited drug or prohibited plant is industrial hemp or industrial hemp seed. (3) In proceedings against — (a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or (b) an employee, agent or contractor of a person referred to in paragraph (a), for an offence against section 5(1)(c) involving being knowingly concerned in the management of any premises used for a purpose referred to in section 5(1)(a), it is a defence for the person to prove that the prohibited drug or prohibited plant is industrial hemp or industrial hemp seed. (4) In proceedings against — (a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or (b) an employee, agent or contractor of a person referred to in paragraph (a), for an offence against section 6(1)(a), it is a defence for the person to prove that the prohibited drug is industrial hemp or industrial hemp seed. (5) In proceedings against — (a) a person who may process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or (b) an employee, agent or contractor of a person referred to in paragraph (a), for an offence against section 6(1)(b) involving manufacturing or preparing a prohibited drug, it is a defence for the person to prove that the prohibited drug is industrial hemp or industrial hemp seed. (6) In proceedings against — (a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or (b) an employee, agent or contractor of a pers