Western Australia

Which drugs are illegal?

In Western Australia illegal drugs are called drugs of addiction or prohibited drugs. Drugs of addiction are a subclass of prohibited drugs. References to prohibited drugs include drugs of addiction. Illegal plants are called prohibited plants.

The definition of “drugs of addiction” and “prohibited drugs” extends to include substances which are chemical analogues of, or chemically related to, listed drugs of addiction or prohibited drugs.

This may mean that new synthetic type drugs that are chemically derived from or related to a drug of addiction or prohibited drug will also be illegal, even if it is not specifically listed in the schedules.

Drugs of Addiction Prohibited Drug Prohibited Plant
  • THC cannibinols
  • Cathinone (Mephedrone, MCAT, meow)
  • PCE
  • PCP
  • LSD
  • Ecstasy/MDMA
  • DMT
  • GHB
  • Meth-amphetamine (ice/speed)
  • Mescaline
  • Methadone
  • Ketamine
  • Amphetamine
  • Dexamphetamine
  • Buprenorphine
  • Coca Leaf

This is not the full list of drugs of addiction, for the full list please see the complete list of drugs in Schedule 8 or 9 of the Standard Uniform Schedule of Medicines and Poisons (SUSMP) plus drugs listed in Schedule 8 or 9 of the West Australian Poisons Act 1964.

  • Cocaine, or any derivative of cocaine
  • Ecgonine
  • Heroin
  • Morphine
  • Opium
  • Cannabis or cannabis resin or any other cannabis derivative.

This is not the full list of prohibited drugs, for the full list please see the complete list of drugs in Schedule 1 of the Misuse of Drugs Act 1981under the heading “Prohibited drugs”.

  • Cannabis
  • Opium poppies
  • Prohibited plant includes any plant (or part of a plant) from which a drug of addiction may be obtained, derived or manufactured

General information

Knowledge of the particular drug

For offences involving prohibited drugs or plants in WA the police generally have to prove that you knew or should have known that the drugs or plants were prohibited drugs or plants.

They don’t need to prove you knew which particular drug or plant you had in your possession. This means, for example that you can be charged with trafficking in speed, even if you thought you only had a legal synthetic substance.

If you try to pass off a substance or plant as a prohibited drug or plant, for the purpose of supply, you can still face the same penalties as if it were a prohibited drug. This means, for example, that you can be charged with suppling cocaine, even if you are trying to rip someone off by suppling icing sugar.

Mixtures of drugs and trafficking

A mixture of substances which contains an amount of a drug of addiction or prohibited drug will be regarded as an illegal drug. This means that if you sell cocaine cut up with washing powder you can still be charged.

Rules for determining total quantities of different drugs or mixtures of drugs for the purpose of determining which offence you will be charged with, which Court your case will be heard in, and what penalty you face on conviction, are very complicated.

WA uses a mixed weight system of calculating threshold quantities for trafficking.

WA police and prosecutors take the total weight of the seized drug sample (e.g., pills, tablets, caps, points, joints, mixtures, or preparations) to be the total quantity of the drug of addiction or prohibited drug when charging you.

The purity of the drugs is not relevant when determining what quantity of drug you possess and therefore what charge you face in court (e.g., possession for personal use or trafficking).

This means that it doesn’t matter how pure your drugs or drug mixtures are. The prosecution only has to show that the weight of the pills, tablets, caps, points, joints, or other mixture is greater than the trafficable quantity for you to be charged with trafficking.

Does the harm of the drug matter?

No. The perceived harm potential of a drug is NOT relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic). A court might take your motives and aggravating circumstances (see ‘Aggravating circumstances’ section below) into account when sentencing you for an offence, but certain drugs of addiction or prohibited drugs should not be treated as more or less harmful than others.

For example, if you possess 5g of heroin, and your friend possesses 5g of cocaine in the same circumstances, you should both be subject to the same charge of trafficking and receive a similar penalty. You should not be punished more severely for possessing drugs like heroin or ice, which are considered to be ‘really harmful’, ‘more evil’ or ‘harder drugs’ than for ‘party drugs’ like cocaine or ecstasy.

You should not be punished more severely for some drugs than for others based only on a ‘scale’ of the perceived harm of different drugs.

General charges for being involved in a drug offence

Generally, if you help or assist someone else to plan or carry out a drug offence, you are also committing an offence by being involved. You can be charged with:

  • taking part in an offence if you are involved in the offence even if you don’t make any profit from the offence (e.g., you pack or transport or manufacture or cultivate an illegal drug or plant; or provide finance or direction for the offence);
  • being an accessory to an offence if you are involved in the offence without directly handling or dealing with the drugs (e.g., by security or a guard or being a look out for a drug deal);
  • aiding and abetting or inciting an offence if you encourage or induce or provide incentives for a person to commit a drug offence (e.g., you tell someone they can use your shed to grow cannabis in); or
  • conspiracy to commit, or attempting to commit an offence if you intend to, or plan, or make preparations, or try to commit an offence.

Generally police will not charge you with additional charges such as being an accessory to supply if you are a user and arrange to score off a dealer. However you can still be charged with possession or trafficking depending on how much you buy and where you buy it.

Possession

It is an offence to possess a ‘drug of addiction’ or a ‘prohibited drug’ or ‘prohibited plant,’ unless a doctor has lawfully prescribed that drug.

Proving possession

There are three elements relevant to proving possession: knowledge, custody and control.

  • Knowledge means that you must know that the substance is a drug and that it is in your custody;
  • Custody usually means having the drugs in your physical possession (for example, in your pocket or wallet or under you pillow). However, custody can also extend to include such places as your house or car;
  • Control means that you have the right to do something with the drugs (for example, keep or use them).

Knowledge

Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your pocket or in your room, the Court will infer you knew what it was.

Knowledge can be based on personal observation or information from another person. In other circumstances it does not have to be firm or absolutely certain. In some cases, awareness that something is highly likely to be a drug, or proof that there was a real and significant chance that a substance was a drug is enough to demonstrate knowledge.

There will be circumstances where, if you don’t admit to owning the drugs or knowing about them, possession will be difficult to prove to the court as required by the law.

Do not admit to possessing drugs without speaking to a lawyer!

Custody and joint possession

Generally if you live in a shared house and get caught with drugs in a common area like the kitchen or lounge room, it may be difficult for police to establish exactly who owned had custody or control of the drugs, unless people make admissions.

The police must prove more than the facts that you knew drugs were there and that you didn’t report the drugs or object to them being there. Therefore if you share a house and police find drugs in non-private parts of the house (say, the kitchen, lounge room or bathroom), it can be difficult to establish who has the sole custody or control of the drugs.

However it is not impossible for police to prove that possession was jointly held. Possession can be shared between people if there was agreement between them, (for example, say you and your flatmates have a stash that you all have access to). Shared, or joint possession is generally hard to prove if no one admits to owning the drugs.

Possession without physical custody

In some circumstances it may be possible to find you in possession of a drug even if it was not physically in your custody. For example if you know you have a package of drugs waiting for you in the post office which only you can pick up that will be enough to establish possession because you are the only person who can obtain the drugs.

If you have drugs in a bag or coat pocket which you check into a cloak room outside a club, you can still be found to be in possession, because you would be the only person with knowledge of the drug and the ability to control it when you retrieved your bag or coat. A conviction in these circumstances is possible, but it would be difficult for the prosecution to rule out the possibility that someone else had planted drugs there.

Similarly, if police find drugs under the tarp in your ute tray, or locked in the boot of your car, but you don’t have the keys with you at that time, police may not be able to show that you had custody and control.

You can be charged with possession if you hid a drug somewhere and forgot about it. The police do not have to prove you knew exactly where the drugs were for them to be found in your possession.

If you are proved to have hidden or concealed a drug so well that no one else could find it and exercise control over it that will be enough to show you had knowledge, custody and control, even though you weren’t in physical possession when the drugs were found.

Control

Control may be proved if there is evidence that a person had done or intended to do something with a drug. If someone leaves drugs on your balcony or in your car and police see you throwing the drugs away this might be enough evidence that you exercised control over the drugs.

However, if someone leaves drugs in your house after a party and you know they are there but police cannot prove that you ever did anything or intended to do anything with the drugs, except throw them out, possession might not be proved.

Temporary possession

Possession can be found even if it is momentary or temporary. If you get passed a joint from someone you can be found to be in possession of the joint.

If you are looking after drugs for someone else, you can still be found guilty of possession, because the drugs are in your custody and control. However, if you can prove that the possession was temporary and that you intended to return the drugs to their actual owner, you might not be convicted of possession. This is known as the ‘Carey defence’.

Penalties

Possession of a drug (for your own personal use) is a simple offence, which means it is dealt with by the Magistrates Court.

Maximum penalty: $2000 and/or imprisonment for 2 years.

Possession with intent to sell or supply is a much more serious offence.

If you are caught with larger amounts of drugs you will be deemed to be in possession of the drugs for the purpose of supplying them, which means you will automatically face much higher penalties, unless you can prove that the drugs were for your own use, which may be hard.

See the supply section for penalties you may face if you are in possession of more than a small amount of prohibited drugs or plants.

Use and administration

Use or administration of a drug is a simple (‘summary’) offence, which means it is dealt with by the Magistrates Court. It is illegal to inject another person even if they have asked you to or given you consent.

Maximum penalty: $2000 and/or imprisonment for 2 years.

It is not illegal to self-administer a prohibited drug or drug of addiction if it has been lawfully prescribed by a medical practitioner and is taken in accordance with the instructions or directions.It is an offence to administer drugs which you have obtained lawfully, such as prescription drugs like codeine, Valium (diazepam), Dexamphetamine, benzodiazepines, buprenorphine, and methadone without following the doctor’s or pharmacist’s directions for use.

This means that it is illegal to inject methadone, because prescriptions for methadone are based on an oral dose.

Maximum penalty: $3000 and/or imprisonment for 3 years.

It is also an offence to ask another person to administer a prohibited drug to you, whether by injection or oral dose or any other method.

Maximum penalty: $3000 and/or imprisonment for 3 years.

It is an offence to be found in any place used for the purpose of smoking a prohibited drug or prohibited plant other than cannabis (e.g. opium den).

Maximum penalty: $3000 and/or imprisonment for 3 years.

Charges of self-administration are difficult to prove without someone making an admission combined with some other evidence (for example, evidence of prior drug use or knowledge about drugs). Remember that any statements you make to police form part of the evidence that can be used against you. No conversation with police is ‘off the record’. For more information on your legal rights see the section on general legal information.

If, for example, you meet police on your way home after smoking a joint in the park and they ask you if you have been smoking don’t admit to it. This would give police the reasonable suspicion that you are in possession they need to search you. If they find some cannabis on you that might give them grounds to get a warrant to search your house. Admitting that you have used drugs recently can quickly lead to more serious drug charges.

If you administer a prohibited drug to another person who subsequently dies from an overdose (‘OD’) you could be charged with manslaughter. Nevertheless if you are using with someone who overdoses you should call an ambulance. Police have guidelines about overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.

Police will not normally attend an overdose unless:

  • they are requested to do so by ambulance paramedics or medical personnel (because ambulance officers cannot control people present at the scene or due to a threat of violence);
  • a death has occurred or there are suspicious circumstances (like attempted murder); or
  • they were the first on the scene or they were called by another person or bystander.

Police guidelines direct police who do attend an overdose to use their discretion not to charge people at the scene, or the person who overdoses, with administration or other minor drug offences such as possession

Obtaining

It is an offence in WA to obtain or attempt to obtain prescription drugs by lying or making false representations, such as forging a prescription.

Maximum penalty: $3000 and/or imprisonment for 3 years.

Supply

It is an offence to sell, supply, offer to supply, a drug of addiction or prohibited substance or prohibited plant unless you are authorised to do so.

It is an offence to supply a prohibited drug without lawful authority. Supply has a very broad definition and you could be guilty of an offence even if no drugs or money change hands.

In WA supplying a prohibited drug means to:

  • deliver the drug to someone;
  • dispense the drug to someone;
  • distribute the drug to someone;
  • forward or pass the drug to a person;
  • furnish or give the drug to someone;
  • make available or offer a drug to someone;
  • provide the drug to someone;
  • return or send the drug to someone.

The charge of supply will also be made if you are alleged to have trafficked or manufactured a drug.

It does not matter that something is supplied on behalf of another or on whose behalf it is supplied.

Acts of supply can include:

  • offering or agreeing to supply, even if no deal ever takes place;
  • being knowingly concerned in supply, for example, introducing someone to a dealer;
  • supplying a legal substance, which you claim, is a prohibited drug, for example, selling aspirin and passing it off as heroin;
  • pooling money and splitting up purchased drugs between the group of buyers; or
  • having drugs in your possession for the purpose of supply.

If you are caught with drugs in your possession, police are more likely to charge you with supply if they find things like scales, deal bags, and cash.

Having above a certain quantity of drugs in your possession is known as ‘deemed supply’. With deemed supply charges you are in effect guilty until proven innocent. The court will automatically believe that you were holding the drugs in order to sell them. It will be up to you to prove that the drugs are not in your possession for the purpose of supply (e.g. they were for your own use or you were simply going to return them to their owner)

Because sharing a deal or helping someone score is part of drug-using culture, many users act as suppliers from time to time. A charge of supply can even rest on an offer to score on another person’s behalf or sharing your gear with other people. It doesn’t matter whether or not there is any money involved. There are also a number of other charges that can be made in relation to supply, including participating in supply and conspiracy to supply.

Selling, supplying, offering to supply a drug of addiction, prohibited drug or prohibited plant:

Maximum penalty: $100,000 and/or imprisonment for 25 years.

Supply of cannabis leaf (not resin or other cannabis products) is treated less seriously:

Maximum penalty: $20,000 and/or imprisonment for 10 years.

Trafficking

Trafficking offences are prosecuted under charges of supply in WA. The same penalties apply as those listed above under supply.

In WA the law requires that the Court declare that you are a drug trafficker if you have been previously convicted of two or more serious drug offences (supply or manufacture of any amount, or cultivation or possession of a trafficable or commercial amount) in the previous 10 years. That means you will be declared a drug trafficker on your third offence. The drug offences can be either inside WA or anywhere else in Australia or even overseas. You can also be declared a drug trafficker if you are convicted just once of a serious drug offence involving a large amount of prohibited drugs or plants.

The consequence of being declared a drug trafficker means that all your property (houses, land, cars, boats, money, shares and personal possessions) can be forfeited to the State government and permanently seized. Your property can be taken even if it was not connected to a drug offence and was lawfully obtained or acquired.

Manufacture

It is an offence to manufacture or prepare a drug of addiction or prohibited drug.

Maximum penalty: $100,000 and/or imprisonment for 25 years.

Trafficking, Supply and Manufacture Deemed supply pure quantity (grams) Indictable pure quantity (grams) Trafficable pure quantity (grams)
Drug You will be tried in the District or Supreme Court – higher penalties Maximum Penalty:$100,000 / 25 years imprisonment
Cannabis 100g 500g 3000g
Cannabis Resin (Hash) 20g 40g 100g
Cannabis Plants 10 plants 20 plants 20 plants
Methadone 0.2g 0.6g 5g
Amphetamine (speed) 2g 4g 28g
Dexamphetamine (Dexies) 2g 6g
Bufotenine 2g 6g
Cocaine 2g 4g 28g
MDMA (ecstasy) 2g 4g 28g
Meth-amphetamine (Ice) 2g 4g 28g
Meth-Cathinone (MCAT) 2g 4g 28g
Morphine 2g 6g 28g
Opium 20g 40g 100g
Opium poppy plants 25 plants 100 plants
Heroin 2g
LSD 0.002g 0.004g 0.01g
PCP 0.002g 0.004g
Psylocibin (Magic Mushrooms) 0.1g 0.3g
Tetrahydro-cannabinols (THC) 2g 4g

Cultivation

It is an offence to cultivate a prohibited plant with the intention of selling or supplying it to another person.

Cultivate has a wide meaning in WA and includes:

  • growing;
  • sowing or scattering the seed produced by a prohibited plant; or
  • planting, nurturing, tending or harvesting the prohibited plant.

Other actions like watering the plant or fertilising it will likely be considered cultivation.

Maximum penalty: $100,000 and/or imprisonment for 25 years.

Cultivation of cannabis leaf (not resin or other cannabis products) with intention of sale or supply is treated less seriously.

Maximum penalty: $20,000 and/or imprisonment for 10 years.

Cultivation of a small amount of prohibited plant for personal use is a less serious offence. However as with possession of drugs, if you a caught cultivating a larger amount of prohibited plants, you can be charged with ‘deemed supply’. This means you will face much higher penalties because the Court will automatically assume that you are growing to sell, and you will have to prove otherwise which may be hard to do.

Maximum penalty: $2000 and/or imprisonment for 2years.

Aggravating circumstances

Supply to children

Supplying drugs to children under 18 years old or involving children in the manufacture, cultivation or supply of drugs are much more serious crimes and have much higher penalties. The child will never be blamed or held responsible for being involved with prohibited drugs or plants.

In WA if you are found guilty of selling, supplying, or offering to sell or supply a prohibited drug or prohibited plant to a child, then the court must impose a sentence of imprisonment. This can be suspended (meaning you don’t have to go to jail if you meet certain conditions), or imposed under conditions (like serving jail time on weekends only), or you can be sent straight to jail. This is the case even for a first offence.

If you get caught dealing or giving or offerings prohibited drugs or plants to a child a second time, you will be sentenced to a mandatory minimum 6 months imprisonment in a correctional facility. This sentence cannot be suspended or served part time.

If you are caught using or in possession of a prohibited drug or plant or if you are caught cultivating a prohibited plant in circumstances that meant that the life, health or safety of a child under 16 years of age, was endangered you will be sentenced to a term of imprisonment – which may be imposed as suspended, conditional or actual imprisonment. The Court could interpret this broadly so that if you were exposing the child to dangerous chemicals or had illegal firearms or weapons in your grow house, that may be enough to prove that you are endangering the health of the child.

If you get caught a second time you will go to jail for a mandatory minimum 6 months.

If a child under 16 is injured, for example by a needle stick or swallowing some pills, because of your use, possession, manufacture or cultivation of a prohibited drug or plant, you will be imprisoned for a mandatory minimum 6 months.

Cannabis intervention requirement

While cannabis remains a prohibited substance under WA law, police have power to a cannabis intervention requirement for some minor cannabis offences.

If you are caught in possession of 10 grams or less of cannabis (not resin) or caught in possession of a pipe or bong or bowl or baggie in which there is traces of cannabis you can be issued with a cannabis intervention requirement instead of being arrested and prosecuted in court.

Police generally have a choice whether to issue a cannabis intervention requirement notice or to charge you. You can speak to police about your eligibility. If you are under 18, police are obliged to consider giving you a caution instead of a formal cannabis intervention requirement or pressing criminal charges. You are less likely to be given a caution if you have already received a caution in the past.

If you are given a cannabis intervention requirement you must choose to attend a cannabis information session within 28 days instead of going to court. Participation in an information session is not considered to be an admission of guilt. Young people under the age of 18 can receive two cannabis intervention requirements.

If you attend the intervention session you will face no further legal consequences and the matter will not appear on your criminal record for the purposes of employment.

If you are given a cannabis intervention requirement but do not attend the session police can arrest you and charge you with the offence you committed.

Difference between decriminalisation and legalisation

Cannabis remains illegal in WA, despite the cannabis intervention requirement system. Cannabis has NOT been decriminalised – that is it is still a criminal offence to possess any amount of cannabis, but the intervention means that you can be diverted away from the court and won’t get a criminal record. The cautioning system does not apply to the cultivation of cannabis plants. If you are caught growing cannabis plants you will be taken to Court.

Synthetics, legal highs and new, emerging drugs

What are synthetics?

Synthetic drugs are newly developed substances that are designed to mimic or re-produce the effects of illegal drugs and plants. Many well known drugs are also synthetic (which means that the drug is manufactured from chemicals rather than extracted from plants) but the term synthetic drugs has come to mean newly emerging drugs or ‘designer’ which have come onto the streets but which are not well known to most drug consumers.

Synthetics are often marketed as ‘legal highs’, ‘herbal highs’, ‘designer drugs’, ‘party pills’, or ‘social tonics’, but often they may not be legal, and may not be safe or tested for human consumption. Often packaging will state that they are ‘bath salts’, ‘research chemicals’ or ‘plant food’.

Synthetics can have very serious health consequences, because even if you have taken them before, the chemical formula may change from batch to batch and within a batch. If you do overdose or have a bad trip ambulance paramedics or medical practitioners may not know exactly what you have taken or how to treat you.

There are synthetics which mimic the effects of MDMA, LSD and cannabis as well as many others, but these can be much more potent than the drugs they are imitating. Synthetics can come as pills, powders or dried herbs.

In recent years police and government have tried to control synthetics because of concerns that they produce the same effects and highs as illegal drugs but can be easily bought from alternative tobacconists, tattoo parlours and adult shops.

Synthetics are also produced and released by manufacturers quickly, without all possible side effects being known or tested. This means that synthetics may be more risky, legally and from a health perspective, than well known illegal drugs because you won’t know what you’re getting.

New laws governing synthetics (outlined below) mean that many synthetic substances marketed as ‘legal highs’ are now actually illegal and can attract the same or similar penalties as the drugs they mimic. It is very hard for the average person to tell which chemicals are in a synthetic substance that means you might be breaking the law without realising.

Common Synthetics

Cannabis Type Synthetics Hallucinogenic Type Synthetics
  • Kronic
  • Voodoo
  • Spice
  • Venom
  • White Revolver
  • Ash Inferno
  • Black Widow
  • All JWH cannibinols
  • Mephedrone/M-CAT (Meth-Cathinone)
  • Amped (synthetic cocaine)
  • Zoom
  • Cloud Nine
  • Ivory Wave
  • N-BOMes/ ‘N-Bombs’ (synthetic LSD)
  • Pandora
  • Smiles

Are synthetics legal?

In Western Australia, the law setting out which synthetics are illegal, automatically imports the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) formerly known as the Australian Poisons Standard. The standard is a list of substances that the Australian government has restricted or made illegal for sale or use without authorisation.

Any substance listed in the Australian Poisons Standard Schedule 8 or 9 is automatically a ‘drug of addiction’ meaning that the penalties for use possession, supply and manufacture described above apply. This means the penalties for use of synthetics in WA are more severe than in some other states.

In WA the Government can also declare any substance to be a prohibited drug without notice. In determining whether a new drug should be scheduled and made illegal, the Government must look at whether the substance is intended to be used in a way or for a purpose, which is similar to another prohibited drug. For example when dealing with an herbal incense/cannabinol like Venom, the Government could say that it was designed to be smoked to produce the same kind of high as cannabis and make it illegal for that reason.

This means that the WA Government can quickly make synthetics illegal. What might have been legal yesterday may actually be illegal today.

Most synthetic drugs which have been on the streets for the last year or two will now be illegal, because the Australian Government and other state and territory governments have recently cracked down on them after a number of incidents where people have died after taking synthetic drugs.

Other Australian laws can temporarily ban the sale or display of substances, without making them illegal. The WA Government can ban shops from selling synthetic substances that have been added to the schedule.

Searching and drug detection

General search powers

A police officer may search you, your clothing or property which you have on you and may seize any thing they find, without a warrant, if the police officer has reasonable grounds to suspect that you are in possession of a prohibited drug, or plant, or have possession of anything connected to an offence.

Police can search you or your property if:

  • they suspect on reasonable grounds that you have a drug in your possession, and that because the circumstances are serious and urgent, if they don’t search you immediately it is likely that you might try and dispose of, hide or conceal the drugs other objects or evidence connected to an offence;
  • they suspect on reasonable grounds that you have possession of things related to an offence, like a weapon or stolen goods in your possession and that because the circumstances are serious and urgent, if they don’t search you immediately it is likely that you might try and dispose of, hide or conceal objects or evidence connected to an offence;
  • you consent or agree to the search;
  • you are arrested and taken into custody by the police; or
  • the police have a warrant or court order to search you.

What is a reasonable suspicion?

Reasonable suspicion is a complicated legal concept, and whether police were correct to believe they had a reasonable suspicion is a matter for the court to decide.

The issue is not whether the police officer was correct or right to hold a suspicion leading to a search, but whether the suspicion was reasonably supported by fact.

A reasonable suspicion is an honestly held suspicion or opinion that is based on more than a mere possibility or hunch, but which can be less firm or less supported by evidence than reasonable belief.

This is what the court will consider when determining whether the police suspicion to search you was reasonable.

For example if you are in a place known to be used for dealing drugs, and are known to police as a user and police see you meet another person for a few minutes in an alleyway this might be enough to establish a reasonable suspicion.

The fact that you are a user alone might not be enough to form a reasonable basis for a suspicion that you are in possession of drugs. Police will consider your behaviour, the time of day and location.

If police ask you to roll up your sleeves and see track marks that would not be a sufficient reason to search you. You have a right to refuse police to show them your arms if they haven’t told you what offence they suspect you of committing. Police must have more evidence than the fact that you have used drugs in the past.

If the suspicion is proved to be unreasonable in court then the search might be considered to be illegal and any evidence of drug offences such as drugs, large amounts of cash, fits or paraphernalia might not be allowed to prove your guilt.

The court will examine what facts were the basis of the suspicion, and the source of those facts in the light of the whole of the surrounding circumstances.

It is important to remember that even if the search was illegal or the evidence illegally obtained, the court can still allow the evidence to be used, if it is in the public interest, or if the “desirability of admitting the evidence outweighs the undesirability of admitting such evidence”.

When considering the desirability of admitting illegally obtained evidence the court will weigh up several questions including:

  • whether the evidence is useful in proving something important or is key evidence in the proceedings;
  • the nature of the subject matter of the case and the relevant offence;
  • the seriousness of the offence and whether it was deliberate;
  • whether the evidence has been used before or is likely to be relied upon in a future case; and
  • the difficulty of obtaining the evidence legally or without contravention of an Australian law.

If the improperly obtained evidence is necessary for obtaining a conviction for a serious drugs offence the Court will be more likely than not to exercise its discretion to allow the improperly obtained evidence to be used in the case.

Conduct of searches

General or frisk searches

Police can frisk search you by asking you to remove your jacket and patting you down. If you refuse to be searched the police can arrest you and use force to search you.

Strip searches

Police can strip search you if they suspect on reasonable grounds that such a search is necessary and that the circumstances are urgent and serious. If you are asked to strip so they can search you must follow their directions to remove the items of clothing which they request you to take off.

Police are not allowed to strip search you in public, but must make the search as private as the circumstances allow. They are not allowed to touch you during a strip search.

A search can only be conducted by an officer of the same sex as you, or by a medical practitioner. If you are transgender you can choose the sex of the officer to search you.

Police must respect your privacy and dignity as much as possible while conducting a strip search.

This means that they must ask for your co-operation and tell you which pieces of clothing you need to remove and why.

The search must be conducted in the least invasive manner practicable in all the circumstances. It must be done as privately and quickly as possible.

Police should let you dress as soon as the search is over, and if they take any clothing they should give you some suitable clothing to wear as a replacement.

Forensic procedures

Police are not normally allowed to conduct forensic procedures (often thought of as internal or cavity searches) without getting a warrant from a Magistrate or obtaining your informed consent. There are some exceptions for less invasive sample taking. Children under 10 years old cannot consent, but their parent can. Children under 18 or an incapable person, who is unable to understand the nature of the procedure and the consequences of the procedure can consent if an independent guardian, parent or support person also consents.

If police intend to preform a procedure on an incapable person (e.g. mentally handicapped, unconscious) or a child under the age of 18 a responsible support person such as a parent, guardian, lawyer or partner must be present to support the person during the search.

Forensic procedures are actually a category of procedures that are normally performed on suspects (such as in sexual assault cases) after arrest.

The procedures can include taking DNA samples, genital swabs or internal searches. Forensic procedures are divided into non-intimate and intimate procedures. The law on forensic procedures is very complicated, but police would not normally need to perform a forensic search on you for a drug offence, unless they believed you had swallowed a bag of drugs for trafficking.

Non-intimate procedures can often be performed by a police officer who has the rank of a Sergeant or higher. Any intimate forensic procedure must be performed by a medical practitioner. The medical practitioner can request help from police to carry out the search.

Intimate forensic procedures include:

  • searching your cavities, or making detailed external examination of your genitals or anus, scanning your body with an X-ray and taking samples of your pubic hair, anal, external genital or breast swabs, saliva, blood and urine samples, DNA samples, mouth scrapes or dental impressions.

Non-intimate procedures include:

  • taking samples of hair, fingernail or toenail scrapes, external swabs or washings, and taking fingerprints, hand prints, footprints and toe-prints.

Police must make sure that you give informed consent, which means that you must understand how the search will be carried out, and the consequences of the search. Police cannot ask you to consent if you are under the influence of drugs or alcohol.

Don’t give consent to a forensic procedure without speaking to a lawyer!

Searches of vehicles

Police can also stop your vehicle or search your vehicle without a warrant if they suspect on reasonable grounds, that you have possession of a drug or other item (like paraphernalia, stolen property or weapons) associated with an offence. An example of reasonable grounds to search your car would be if you are stopped at a random breath test and your car smelt of cannabis, or if you are stopped because you ran a red light and police see you put something in the glove box, while they approach your car.

Searches of private premises

Police cannot normally enter your house without a warrant unless:

  • you let them inside, after they knock and ask to come in;
  • they believe on reasonable grounds that there is a disturbance or breach of the peace (such as a fight, domestic violence), or a threat of violence to people in the premises;
  • they believe on reasonable grounds that someone is at risk of being seriously injured in the premises, or a serious event such as a fire or explosion has occurred inside the premises;
  • a senior police officer has identified that there is an out of control gathering such as a house party that has been gate-crashed; or
  • the police are pursuing a suspect or escapee.

A reasonable belief must be based on stronger evidence than a reasonable suspicion. For example, if police hear yelling and screaming and smashing glass from inside a house, and have already been called by neighbours, then they would be able to form a belief that someone was at risk of violence and would be lawfully entitled to enter the house using reasonable force as necessary.

Police are allowed to take copies of any books or documents found during a search. If you do not comply with this request during a search you could be charged with a simple offence of hindering or obstructing the police.

Maximum penalty: $3000 and/or imprisonment for 3 years.

Drug premises

There are a specific set of laws that relate to premises (houses, flats, basements, cellars, garages, sheds, farms, offices or factories) that are being used for the purpose of supply, manufacture or cultivation of prohibited drugs or plants.

Drug premises are any premises that are being used for the use, supply or manufacture or cultivation of prohibited drugs (including drugs of addiction) or prohibited plants.

This law means that any person who knows that their house or premises is being used for the use, supply, manufacture or cultivation of prohibited drugs or plants and permits this activity commits an offence. An owner or landlord of the premises can also be charged if they knew what activity was going on in their house.

If your friends use your house to make drugs or use drugs, you can be charged even if you did not use the drugs or take part in the their activity.

Knowingly permitting premises to be used as drug premises is an offence. This means you can be charged for something as simple as letting your friends smoke bongs on the back porch.

Maximum penalty: $3000 and/or imprisonment for 3 years.

It is also an offence to be found in any place that is used for the purpose of using drugs.

Maximum penalty: $2000 and/or imprisonment for 2 years.

Sniffer dogs

In Western Australia police use sniffer dogs to carry out both general (‘random’) drug detection and to assist with searches of your person or property.

General drug detection

General drug detection occurs where a dog is used to conduct ‘random’ drug detection. In this case if police are conducting general drug detection and the sniffer dog indicates you, by sitting down next to you, this will be enough for police to form a reasonable suspicion that you are holding and they can then search you.

Assisting with searches

Sniffer dogs can be further used to help search you, or your property or vehicle after police have formed a reasonable suspicion that you are in possession of a drug.

Is general drug detection a search?

General (‘random’) sniffer dog drug detection is not considered to be a search. This is because the sniffing is done passively and is not a physical intrusion into a person’s privacy or property. For example, a sniffer dog that wanders past a suitcase with cannabis inside is not searching the suitcase. Police who ask a bus driver to pull over and let them put a dog in the luggage compartment are not conducting a search.

However, if the dog touches you before it sits down, or if the dog stays in contact with you or digs its nose into your pockets or forcefully bumps and nudges into you, this may be considered to be an assault.

If there has been an assault before reasonable suspicion that you possessed drugs was formed in the minds of the police you may be able to challenge in court any evidence (drugs) that the police find on you.

In a NSW case a sniffer dog was bunting and ferreting and nudging a man around his groin before it sat down. In this case the evidence of drugs found after the police searched the man was found to be inadmissible in court and the man’s conviction was overturned.

This means that when the police use sniffer dogs to carry out random general drug detection they must keep the dog under control and must take all reasonable steps to prevent the dog from touching you.

You should try to avoid touching or patting a drug detection dog as this may be considered to be obstructing or hindering police.

Where can police use sniffer dogs?

Sniffer dogs usually patrol the perimeter and the entry and exits to festivals or raves. They are also commonly seen in club districts and at train stations.

If you are approached and sniffed by a dog, don’t panic and run or chuck your drugs or smokes away, because this will also give police reasonable grounds to detain you and search you.

Sniffer dogs may not always be accurate, so even if you are not holding any drugs co-operate with the police while they search you. You can ask for their name, rank and station. Ask why you are being searched. If you are asked to give your name, ask if you have to tell them. If they say no, don’t, because those details can be entered into their database. If they say yes, tell them and seek legal advice to make a complaint.

If police do find drugs in your possession you will have to tell them your name and address, but nothing more than that. You have a right to silence. If you do speak to the officer it is always good advice to be polite and calm – if you only have a small amount of drugs they might let you off with a caution. If you swear at the police or resist them you can be arrested and charged with additional offences.

Drug and drink driving

General information

The law imposes strict requirements that drivers are fit to drive whenever they get into the car.

Driving while being under the influence of drugs and alcohol is an offence, regardless of whether the drug was legally prescribed or not. In addition driving while you have a certain concentration of alcohol in your breath or blood (Blood Alcohol Concentration – BAC) or certain specified drugs in your oral fluid, or blood is an offence.

Driving includes attempting to drive a vehicle or put a vehicle in motion or being in charge of a vehicle in a road or road related area.

Driving also includes attempting to drive a vehicle or attempting to put a vehicle in motion, or if you are in charge of a vehicle. This means you can be charged if you:

  • are sitting in the driver’s seat;
  • turn on the headlights;
  • engage the gears; or
  • put the keys in the ignition.

All drivers have a general responsibility to report any permanent or long-term mental or physical condition (which may include a dependence on drugs or alcohol) that is likely to, or treatment for which is likely to, impair the person’s ability to control a motor vehicle. This includes a drug or substance dependency. A driver with an impairment must report as soon as practicable after becoming aware of the impairment.

It is an offence to fail to report such a condition.

Maximum penalty: $500.

If you have an illness, injury or incapacity you are not automatically banned from driving. Depending on the nature and circumstances of your impairment you could be granted a conditional licence or even an unrestricted licence once a health practitioner has assessed you.

For example, if you are stabilised on methadone or buprenorphine for opioid dependency you may not have a higher risk of a crash, providing the dose has been stabilised over some weeks and you are not abusing other impairing drugs.

Police in WA have the power to request to see your drivers licence and to ask the names and addresses of the driver and passenger in your vehicle.

It is an offence to refuse to provide your licence or to state your name and address if requested.

Maximum penalty:

  • for a first offence: $300.
  • for a second offence: $600.

In WA if you are caught 3 times for a major traffic offence (including drink or drug driving) you will be banned from driving for life.

  • Other major traffic offences that can be counted under this rule include:
  • driving at a dangerous speed or in a dangerous manner;
  • driving recklessly, or at speed or in a dangerous manner while engaged in a police pursuit;
  • furious driving, reckless driving, menacing driving, negligent driving where death or grievous bodily harm is occasioned;
  • drink and drug driving offences;
  • fail to stop and give assistance in an accident involving death or injury;
  • driving whilst disqualified, or when your licence is cancelled or suspended;
  • a conviction for an offence of exceeding the speed limit by more than 45km/h or
  • a conviction for unlicensed, never licensed.

The Court, when determining any period of disqualification to be imposed for a drink or drug driving offence, will look at the seriousness of the offences, whether they were reckless or intentional, whether other people were killed, harmed or injured or placed at risk and whether you showed remorse or understanding of your behaviour and chances of rehabilitation.

For mid range and high range drink driving offences your licence will be suspended by police on the spot. Courts will then impose a longer period of disqualification if you are convicted. They will normally impose the default period automatically, but can reduce or lengthen this period. The Court cannot reduce the period of disqualification any less than the minimum period set by law.

If you are convicted of drink or drug driving, you may have to undergo a drink and drug driving awareness course before you can get your license back.

WA does not have an Interlock scheme such as those that exist in other Australian states. However, it is likely that such a system will be introduced in the next few years.

An Interlock is a breath testing immobiliser device that is fitted to your car and prevents you from starting the car unless it tests the driver as having no alcohol in his or her breath. In other states the scheme is voluntary and lasts between 1 year to 4 years during which time it is illegal for an interlock licence holder to drive a vehicle that has not been fitted with an interlock.

In other states drink driving offenders subject to an interlock licence condition have to pay for the Interlock to be fitted to and removed from their vehicle, plus monthly rental and servicing costs. An Interlock can cost as much as $3500 per year.

Driving under the influence or while impaired

It is an offence to drive where you are so under the influence of alcohol or any other drug that you are impaired and incapable of being able to properly control your vehicle.

This means that it is illegal to drive on prescription medications such as codeine, valium, benzodiazepines, buprenorphine and methadone if your ability to drive properly is affected or if it is proven that you did not take the medication as directed by your doctor or pharmacist.

It is a defence to a charge of driving while impaired by a drug if you can prove:

  • the drug or medication administered by or was taken in accordance with a prescription of a medical practitioner; and
  • if the drug was received or obtained by the accused in a packaged form, the packaging of the drug did not include a label advising that the drug could affect your ability to drive or operate machinery safely; and
  • that you were not aware, and could not reasonably have been expected to be aware, that the drug was likely to result in conduct or a condition that would prevent you from having proper control of your vehicle.

This offence does not distinguish between legal and illegal drugs. If you are driving or attempting to drive a vehicle under the influence of a drug which means that you are unable to control the vehicle you can be charged, even if the drug you took was legally prescribed.

An example would be a person who had taken prescribed methadone and benzodiazepines to an extent that they were no longer able to safely drive. Testing for impairment will generally be triggered by something like an accident or police witnessing erratic driving.

Police can conduct a test of your impairment by drugs or intoxication by alcohol if they have reasonable grounds to believe you are under the influence of drugs. This involves a preliminary assessment (‘impairment or sobriety‘ test) of physical factors such as your behaviour, balance and coordination. If you look drowsy or are unable to walk straight or keep your eyes focused, or otherwise seem uncoordinated, or behaving in a manner that indicates that you may be impaired by alcohol or a drug, you will be required to provide breath, saliva, blood and/or urine samples.

A drug-screening test can test for all drugs by analysing breath, urine or blood samples. While police process the tests and await confirmation, you may be arrested and taken to a police station to be charged and re-tested. They will almost certainly test you if you crash.

Police will be more likely to make you take a drug impairment assessment if you were involved in an accident or if the police have reasonable grounds to believe that you were driving culpably, dangerously or recklessly.

Driving while impaired by drugs or alcohol is an offence.

Maximum penalty:

  • for a first offence: $2500.
  • for a second: $3500 and/or imprisonment for 9 months with mandatory minimum disqualification of at least 10 months.
  • for a third or subsequent offence: $ 5000 and/or imprisonment for 18 months with mandatory minimum disqualification of at least 30 months.

Drug driving

It is an offence to drive with the presence of a specified illicit drug in your oral fluid, blood or urine. This tests for the presence of THC (cannabis), methylamphetamine (speed, ice, crystal meth), and MDMA (ecstasy).

If a positive sample is detected, you will be required to provide a second sample that will be run through another oral screening device. If a second positive test is found, a sample of your saliva will be taken and sent to a laboratory for confirmation. You will not usually be charged at this stage, although you may be prohibited from driving for 24 hours. It is an offence to refuse to submit to a random breath test or drug test.

Maximum penalty:

  • for a first offence: $500.
  • for a second or subsequent offence: $1000 with mandatory minimum disqualification of at least 6 months.

Drug driving offences are not limited to public roads. They can be committed on private property. It is no defence to argue that you took a specified illicit drug such as speed thinking it was another illicit drug such as cocaine.

It is important to be aware that very strict penalties apply for failing to comply with lawful directions from police enforcing these laws. Failing to comply with a random drug test, driver assessment, or to provide blood samples without lawful excuse is an offence.

Maximum penalty:

  • for a first offence: $2500 with mandatory minimum disqualification of at least 10 months.
  • for a second offence: $3,500 and/or imprisonment for 9 months with mandatory minimum disqualification of at least 30 months.
  • for a third or subsequent offence – $ 5000 and/or imprisonment for 18 months with mandatory LIFE disqualification from obtaining or holding a driver’s license.

Drink driving

It is an offence to drive with more than the prescribed concentration of alcohol in your breath or blood. The legal limit for adult, full licence holders is 0.05 grams. Learner drivers or special licence holders such as truck or taxi drivers have a zero limit.

Maximum penalties for blood alcohol content of more than 0.05g but less than 0.08g:

Blood alcohol content (g/100ml) First offence Second offence Subsequent offence
0.05g – 0.069g Max: $500 Min: $500Max: $1000Min disqualification: 6 months Min: $500Max: $1000Min disqualification: 8 months
0.07g – 0.079g Max: $500 Min: $600Max: $1000Min disqualification: 8 months Min: $600Max: $1000Min disqualification: 10 months

If you are convicted three times with a blood alcohol level of more than 0.15 g the court must disqualify you from obtaining or holding a driver’s licence for life.

Maximum penalty for blood alcohol content of more than 0.08g

Blood alcohol content (g/100ml) First offence Second offence Subsequent offence
0.08g – 0.089g Min: $500Max: $1500Min disqualification: 6 months Min: $600Max: $1500Min disqualification: 8 months Min: $600Max: $1500Min disqualification: 10 months
0.09g – 0.109g $550Max: $1500Min disqualification: 7 months Min: $900Max: $1500Min disqualification: 10 months Min: $900Max: $1500Min disqualification: 13 months
0.11g – 0.129g Min: $650Max: $1500Min disqualification: 8 months Min: $1200Max: $2000Min disqualification: 14 months Min: $1200Max: $2000Min disqualification: 17 months
0.13g – 0.149g Min: $750Max: $1500Min disqualification: 9 months Min: $1600Max: $2500Min disqualification: 18 months Min: $1600Max: $3000Min disqualification: 30 months
More than 0.15g Min: $900Max: $2500Min disqualification: 10 months Min: $2100Max: $3500 and/or 9 months imprisonmentMin disqualification: 30 months Min: $2100Max: $5000 and/or 18 months imprisonmentMin disqualification: LIFE BAN

It is important to be aware that very strict penalties apply for failing to comply with lawful directions from police by failing to stop for a breath test, or refusing a breath or blood test.

Maximum penalty:

  • For a first offence – $2500 with mandatory minimum disqualification of at least 10 months.
  • For a second – $3,500 and/or imprisonment for 9 months with mandatory minimum disqualification of at least 30 months.
  • For a third or subsequent offence – $ 5000 and/or imprisonment for 18 months with mandatory LIFE disqualification from obtaining or holding a driver’s license.

Paraphernalia, fits (needles & syringes), equipment

Possession

It is legal to possess needles and syringes (fits) in Western Australia, but it is illegal to possess any other paraphernalia like bongs or pipes for use in administering an illegal drug if the paraphernalia has traces of a prohibited drug or plant in or on it.

This would include vaporisers, spoons or swabs if they have traces of prohibited drugs or plants on them.

This means police can charge you with possession on the basis of the minute quantities of drugs that are present in used fits or other paraphernalia if you are not authorised to be using the fits, paraphernalia or prohibited drugs. Hookahs and shishas where they are only used for smoking tobacco are not considered to be drug paraphernalia.

Possession of drug paraphernalia with traces of a prohibited drug or plant on or in it is an offence.

Maximum penalty: $36,000 and/or imprisonment for 3 years

If the pipe or bong has traces of cannabis leaf the police may issue you with a cannabis intervention requirement, rather than charging you. See the cannabis intervention requirement section above for more information.

It is also an offence in WA to display for sale, or sell, any drug paraphernalia, except in the course of operating an authorised needle and syringe program.

Maximum penalty: $10,000

Selling drug paraphernalia to a child carries a more serious punishment.

Maximum penalty: $24,000 and/or imprisonment for 2 years

Possession of fits or other paraphernalia may be used as evidence to support other charges.

A person who helps another person commit an offence is also guilty of an offence. This includes giving someone else a needle & syringe to use in the self-administration of an illicit drug. A person not approved by the WA Government to supply needles & syringes may be charged with aiding and abetting or being an accessory to the crime of using a prohibited drug or drug of addiction.

Also, if you make admissions about using (self-administration) or you are found to be holding (possession) then the used fit or fits may be used as corroborating evidence.

If you are concerned about used fits and trace elements you can flush them with water immediately after use but the best approach is to dispose of them in a disposal container and return them to a needle & syringe program. It is also important to be aware of what you might be carrying when you go to a needle & syringe program to pick up or return fits.

Disposal of fits

It is an offence to litter. It is legal to dispose of used injecting equipment in the household waste in WA.

You can be given a $5000 on-the-spot fine by council workers for littering – including for discarding a needle & syringe.

Sex, health and the law

Consent

The legal age of consent in WA is 16 years for both males and females.

A person who has sexual relations with a person under those ages is guilty of an offence.

Penalties

The maximum penalties for underage sex range from 10 to 25 years imprisonment, depending on the age of the child and the type of sexual activity involved.

Sex work

Brothel sex work

It is legal to engage in sex work in a registered ‘sexual services business’ (a brothel) that is maintained by a licensed manager or operator. The operator or manager must be present at the business at all times during which the business is operating.

Operators/managers are obliged to ensure that all reasonable steps are taken to ensure that children do not work and are not present at the business and that condoms are used in the course of sex work.

Allowing, obtaining, forcing or inducing a child to perform sex work is an offence.

Maximum penalty: 14 years imprisonment.

Allowing a child to enter or be present in a brothel is an offence.

Maximum penalty: $25,000 and/or 2 years imprisonment.

Brothel owners and operators must also ensure that all sex workers have a contract of employment and that sex work is engaged in within the course of employment.

It is an offence to induce a person to enter into or stay in the sex work business. Inducement can include giving someone prohibited drugs or threatening to hurt them if they do not prostitute themselves.

Maximum penalty: 10 years imprisonment

As an employer a sexual services business is required by the law to take all reasonable steps to provide a safe work environment. Worker’s compensation may be available where an injury is sustained in the workplace in the course of employment. A person’s entitlements are not affected by their becoming capable of returning to sex work but refusing to do so.

Home sex work

It is legal for an individual sex worker to carry on a sexual service business without having to apply for manager/operator’s licenses, provided commercial sex acts are carried out by that individual alone and they keep all their earnings.

It is also legal for ‘small owner operated businesses’ to operate without having to apply for manager/operator licenses, provided there are not more than two sex workers and each has full control over their individual earnings.

The maximum penalty for more than one small owner operated business, or more than two workers operating from the same premises is a $50,000 fine.

It is an offence to engage in sex work at a place where a child is present.

Maximum penalty: $25,000 and/or 2 years imprisonment

There are various restrictions on advertising sexual services and promotional material is generally only permitted in classified sections of newspapers and over the web.

Police have powers to enter sexual service businesses to check for compliance with relevant laws and regulations. Hindering or obstructing police in carrying out their duties under these laws can have serious consequences, with a maximum penalty of 2 years imprisonment.

Street sex work

In WA street sex work is illegal. You can be charged with this offence if police find you seeking out clients by inviting clients to have sex, requesting clients have sex with you or loitering to try and solicit sex.

‘Seeking out’ may include any conduct (whether blatantly obvious or quite subtle) that amounts to an invitation of prostitution. Merely agreeing to do an act of prostitution, or being willing to do a job if someone asks you, is NOT soliciting. Both sex workers and clients can commit the offence of seeking out sexual services.

In WA it is an offence for clients to seek out a person to engage in sex work in a public place, or in view or hearing of a public place.

Maximum penalty:

  • for an offence involving a child under 18 years: 7 years imprisonment.
  • for any other offence: 2 years imprisonment.

It is also an offence for sex workers to seek out clients in a public place (or in view or hearing of a public place).

Maximum penalty:

  • for an offence involving a child under 18 years: 3 years imprisonment.
  • for any other offence: 1 year imprisonment.

It is also an offence to act as a prostitute for a child (a person under 18).

Maximum penalty: 9 months imprisonment.

Blood borne viruses (BBVs) & sexually transmitted infections (STIs)

Notification requirements

In Western Australia:

  • Hepatitis A, B, C, D and E;
  • HIV;
  • AIDS –

are all notifiable diseases, which means that your doctor, nurse, pathologist or hospital must notify the Government if you are diagnosed with one of these diseases.

It is an offence for the medical practitioner or health officer to fail to notify a diagnosis of a transmissible disease.

Maximum penalty: $2000.

There are rules that specify that your full name must not be provided when notifying and that your privacy is respected. HIV notifications must be de-identified by code unless the patient consents to the notification including his or her name or the medical practitioner believes on reasonable grounds that the patient may engage in conduct which is likely to place other people at risk of infection.

It is an offence for someone to disclose your disease status, without lawful authorisation.

Maximum penalty: $2000.

Public health law offences relevant to BBVs and STIs

Western Australia has developed Case Management Program Guidelines:

A Program for individuals with HIV who knowingly expose others to the risk of infection.

These guidelines set out policies for when health officials must take action to report risky behaviours that expose people to infectious or transmissible diseases.

The guidelines also set out principles for managing the risk of infection or transmission of disease in a health framework by establishing processes for counselling and treating people with notifiable transmissible diseases.

There is a possibility that if you have a notifiable disease and you are behaving in a way that endangers public health or puts others at risk of infection you could be given a health order by the Chief Health Officer:

  • preventing you from doing certain activities;
  • preventing you being in or working in certain places;
  • requiring you to have a medical examination or undergo treatment or health counselling; or
  • requiring that you are confined or detained in a particular place.

Health orders, especially orders requiring detention or confinement should be only made as a last resort when other attempts to get the person to change or address their risky behaviour have failed.

It is an offence to fail to comply with a health order.

Maximum penalty: $3000

Nationally all states and territories are supposed to uphold the important principle that the least restrictive measures of control, treatment and monitoring should be applied first when addressing risky behaviour of individuals who have HIV.

However, if you are suspected of intentionally infecting other people with a disease, health officials are instructed to refer your matter to police to pursue criminal charges.

Criminal offences relevant to BBVs and STIs.

There have been at least 32 prosecutions for HIV exposure or transmission in Australia. Prosecutions have occurred in nearly every state in Australia. Criminal prosecutions are also becoming more common. If you have a transmissible disease it is your responsibility to take precautions to ensure that you minimise the risk of infecting others.

It is an offence to do an act that is likely to result in another person contracting a serious disease.

Maximum penalty: imprisonment for 20 years.

Prosecutions for knowingly infecting another with HIV have been successful in Western Australia based on the offence of inflicting grievous bodily harm.

It is an offence for a person to engage in an act of prostitution without using a condom that is appropriate for preventing the transmission of bodily fluid from one person to another.

Maximum penalty: $5000.

All persons engaging in sex work must take all reasonable steps to minimise the risk of transmission of infectious diseases and must not use any medical examination as evidence that they are unlikely to be infected. Failure to take all reasonable steps to minimise risk of transmission of STIs or BBVs is an offence.

Maximum penalty: $10,000.

It is an offence to take part in oral, vaginal or anal penetration if a person has a prescribed infection.

Maximum penalty:

  • for a first offence: $20,000.
  • for a second or subsequent offence: 3 years imprisonment.

Discrimination

What is discrimination?

Discrimination involves treating someone unfavourably or unfairly because that person has a specific characteristic or attribute.

Discrimination can also include imposing a certain requirement or condition on a person because of a characteristic or attribute where the different treatment is not reasonable.

Grounds for discrimination

The Western Australian Equal Opportunity Act prohibits the discrimination of an individual based on:

  • gender;
  • sexual orientation;
  • marital status;
  • pregnancy;
  • race;
  • religious or political conviction;
  • age;
  • racial harassment;
  • family responsibility or family status;
  • impairment (disability); or
  • gender history.

In what circumstances can you complain about discrimination?

You can’t complain about discrimination in all areas of life. This is because the Government does not normally regulate private behaviour or relationships between individuals (unless there is threat of violence or other criminal offences involved).

Generally people are free to think and speak what they like about each other. For instance you cannot claim that your family or neighbour discriminates against you because of who you are friends with.

However, discrimination law does prevent discrimination in social or public areas of life, where you might have a reasonable expectation to be treated the same as anyone else, despite the fact that you may be of a different race, or have a different gender identity or are disabled.

In West Australia areas of life where discrimination is unlawful are:

  • work and employment related areas– you cannot be fired or sacked, or given harder work, worse conditions or unequal pay only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • education – you cannot be refused a place in a school or university course only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • goods and services and land– you cannot be refused a sale, or service in a restaurant or health care, or access to public transport, or help from the police only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • clubs – you cannot be refused membership of a club only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • accommodation – you cannot be refused accommodation in a motel or in public housing only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • access to premises or vehicles – you cannot be refused entry to public spaces such as supermarkets, shopping centres, cinemas, pools, restaurants or hospitals, or vehicles such as public buses or trains, only because of your race, age, gender identity, disability, political or religious beliefs etc.

It is important to note that there are a number of exceptions to these general rules. If you feel you have been discriminated against seek legal advice or talk to the WA Equal Opportunity Commission.

WA law also prohibits sexual harassment and vilification.

Vilification is action or communication that incites hatred, or severe contempt or ridicule of another person or group of people based on their race.

The meaning of disability discrimination

Being discriminated against on the basis of ‘impairment’ includes being discriminated against on the ground that you are infected with a specific disease including Hepatitis C or HIV/AIDS.

It is not clear whether having a ‘drug dependency’ can be considered a ground for discrimination.

Generally drug addiction will not count as an impairment. Temporary intoxication from drug use is not an impairment.

There have been a number of court cases that have considered that a dependency on methadone or buprenorphine could in certain circumstances be considered a disability.

In these cases former heroin addicts had been stabilised on methadone or buprenorphine pharmacotherapy and were being subjected to workplace harassment and unfair treatment because of their history of drug use. The courts held that someone who was living a normal, functional life with the help of legally prescribed methadone or buprenorphine could still be suffering from the disability of methadone or buprenorphine dependence, because of the severity and disabling nature of withdrawals if they were not able to maintain their treatment regime.

These cases established that discrimination of people on the basis that they were on a pharmacotherapy program could be disability discrimination and would be unlawful.

HIV and Hepatitis-C related discrimination is also unlawful.

There is also legal protection against discrimination for people with disabilities under the Federal Disability Discrimination Act.

How to complain about discrimination

Not all unfair treatment will be considered to be discrimination.

Complaints must be made in writing to the WA Commissioner for Equal Opportunity. It is then assessed and if within jurisdiction is investigated and conciliation is attempted. If unsuccessful, the matter is referred to the WA Equal Opportunity Tribunal for hearing and legally enforceable determination.

Complaints under the Federal Disability Discrimination Act can be made to the Australian Human Rights Commission. The AHRC can be reached on
1300 369 711 or at http://www.humanrights.gov.au.

For more information on addressing discrimination please refer to AIVL’s Know Your Rights webpage at http://www.aivl.org.au/knowyourrights.

‘The Law’

Misuse of Drugs Act 1981 – lists prohibited drugs and plants. Sets out basic drug offences of possession, manufacture, selling and supplying and the consequences of being declared a drug trafficker. Establishes cannabis intervention scheme. Sets out police search powers. Regulates sale and possession of paraphernalia.

Misuse of Drugs Regulations1982 – creates an exception for possession of hookahs and shishas if used for smoking tobacco and for the supply and display of paraphernalia in the course of operating a NSP.

Poisons Act 1964 – Imports the SUSMP and sets out how the WA Government can declare and regulate drugs and medicines.

Australian Poisons Standard (The Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP)) – is a national law containing 9 Schedules which classify drugs, medicines and poisons according to their potential for harm, abuse, addiction and the need for special controls and regulation of sale and supply. The schedules are updated regularly to make many new synthetic drugs illegal in the states and territories.

Poisons Regulation 1965 – Regulates the prescription of drugs of addiction and controlled substances. Sets out rules for the conduct of needle and syringe exchange programs.

Young Offenders Act 1994 – establishes cautioning and diversion scheme for child offenders including for certain drug offences.

Criminal Investigation Act 2006 – sets out police investigation, search and arrest powers.

Criminal Code Act Compilation Act 1913 – Appendix B sets out the Criminal Code Act 1913 which includes offences against the person such as causing grievous bodily harm, which may be used to prosecute a person with HIV who is placing others at risk of infection.

Road Traffic Act 1974 – Division 2 sets out drink and drug driving offences. Division 1 sets out general offences including police power to request a driver to produce their license and state their name and address.

Road Traffic (Authorisation To Drive) Regulations 2008 – deals with licensing including the requirement that drivers report any medical conditions including drug or substance dependency.

Prostitution Act 2000 – regulates sex work in WA.

Health Act 1911 – sets out offences of causing or risking serious or material harm to public health. Defines notifiable conditions. Gives powers to authorised offices to take action to control or reduce the threat or spread of a notifiable condition. Gives the Executive Director the power to give health directions requiring a person who has a controlled notifiable condition to undergo treatment or counselling or be detained.

Western Australian Equal Opportunity Act – sets out WA discrimination law.