Misuse of Drugs Regulations 1982

The Regulations revolve around a handful of core legal concepts that operationalise the Act’s abstract prohibitions and offences.

Specified substances and categories

• Specified substances are defined by regulation and schedule. Reg 4AA prescribes that the substances listed in Schedule 2A Divisions 2 and 3, their salts, esters and derivatives, and any substance containing them are “specified substances” for the Act. Schedule 2A therefore controls which listed pharmaceutical agents, precursors and anabolic steroids are treated under specified‑substance rules.
• Category 1 and category 2 items are separate lists (reg 5 and reg 5A), with Subdivision 1 in each Schedule listing substances and Subdivision 2 listing “things” (equipment and apparatus). Category status is attached to items named in Schedule 3 (category 1) and Schedule 4 (category 2) and carries through to sections of the Act that treat acquisition, possession, supply and threshold quantities differently (reg 5C sets that a category item quantity is the amount specified opposite the item in the schedule).

Authorized persons, approved analysts and botanists

• The Regulations specify classes who count as approved analysts (reg 4), which includes persons employed by specified interstate governments in certain statutory analyst roles and specific statutory appointments in other jurisdictions. Reg 3A prescribes a list of universities relevant to the definition of “botanist” in s 3(1) of the Act (Schedule 2).
• Reg 5B prescribes particular classes of health professionals (chemists/pharmacists, dentists, medical practitioners, nurse practitioners, optometrists, veterinarians) for purposes of specified Act provisions. Those professional registrations are cross‑referenced to other statutes (e.g. Health Practitioner Regulation National Law (Western Australia), Veterinary Practice Act 2021).

Evidentiary and procedural forms and steps

• The Regulations set out mandated forms for key processes (Schedule 1; Forms M.D.1, M.D.7-M.D.18). These forms cover supplier declarations (M.D.1), information on oath for search warrants (M.D.7), search warrants (M.D.8), Commissioner destruction directions (M.D.8A), accused application to choose an analyst (M.D.8B), psychoactive substance destruction notices (M.D.9), applications to have suspected psychoactive substances analysed (M.D.10), certificates of approved analyst/botanist (M.D.13-14), and cannabis diversion forms (M.D.16-18).
• The Regulations specify how information on oath and search warrants must be presented (reg 6), and require particular documentary content and signature/witnessing procedures for destruction (reg 7).

Chain of custody, analysis and accused’s rights

• Reg 7B prescribes detailed chain‑of‑custody steps when an accused exercises the right under s 27A of the Act to have a sample analysed by a chosen analyst or botanist. The regulation sets who is a “prescribed person” (the officer in charge of the Organised Crime Squad), a 28‑day application period, a $50 application fee, mandatory conveyance of sufficient samples in numbered sealed drug movement bags to specific approved laboratories (Chemistry Centre W.A. for drugs and dangerous substances; Western Australian Herbarium for plants), and the attendance and analysis procedures in the presence of the chosen analyst and approved analyst/botanist (reg 7B(2)-(7)). Return and re‑sealing procedures and police receipt steps are specified (reg 7B(7)-(8)).

Cannabis diversion and timelines

• Minor cannabis related offences are given a bespoke administrative diversion track. Reg 5AA prescribes Forms M.D.16-18 for the Cannabis Intervention Requirement, withdrawal and certificate of completion; the CIR requires an alleged offender either to elect prosecution or to complete a Cannabis Intervention Session within 28 days (Form M.D.16). The forms set booking, rescheduling and extension processes and identify the Drug Diversion Coordinator as the receiving/administrative point.

Fees and cost allocation

• Reg 12 prescribes fees for female searchers (nominal per search) and for medical practitioners attending searches (higher rates for out‑of‑hours and holiday attendance). Reg 13 prescribes analysis fees for samples associated with suspected psychoactive substances under s 8U (first test $500 + GST; subsequent tests $200 + GST), and reg 7B(2)(c) prescribes a $50 fee for an accused application to choose an analyst.

Interaction with other legislation and administrative decision‑makers

• The Regulations import definitions or rely on other statutes and administrative structures: Health Legislation Administration Act (CEO definition in reg 4B), Medicines and Poisons Act 2014 (definition of needle and syringe programme and references to Schedule poisons in Sch 2A cl 1), Health Practitioner Regulation National Law (reg 5B), Veterinary Practice Act 2021 and Police Act 1892 (police ranks for witness classes in reg 7). Reg 10A maps specified Commonwealth Criminal Code offences to the Act’s concept of “external serious drug offence.”

In short, the Regulations convert statutory definitions, rights and duties in the Act into lists, forms, time limits, chain‑of‑custody steps and fee schedules that determine how enforcement, diversion and evidential processes will be implemented on the ground.

The Regulations change behaviour and allocate costs across a sizeable set of actors. Identify who is affected and in what practical ways.

Police and police administration

• The Commissioner of Police and designated police officers are central decision‑makers and implementers. The Commissioner can direct destruction of seized items via Form M.D. 8A (reg 7A). Police officers are required to destroy seized relevant things by specified means (reg 7) and to follow witness and certification procedures (reg 7(1)(b)-(2)). The investigating officer must manage conveyance of samples in drug movement bags to approved laboratories and obtain receipts (reg 7B(4)-(8)). Police also issue psychoactive substance destruction notices (Form M.D.9) and CIRs (Form M.D.16) through Licensing Enforcement Division/Drug Diversion Coordinator channels.

Accused persons and suspects

• An accused person whose seizure has produced samples may apply to have those samples analysed by a chosen analyst or botanist (reg 7B). That application must be made within the prescribed period (28 days) and accompanied by a $50 fee (reg 7B(2)). A person who receives a psychoactive substance destruction notice can apply to have a sample analysed by an approved analyst (Form M.D.10) and must pay the analysis fee calculated under reg 13. A person issued with a Cannabis Intervention Requirement must choose between election to be prosecuted or completion of a Cannabis Intervention Session within 28 days (Form M.D.16). These are concrete procedural rights that carry costs and deadlines.

Suppliers and sellers of chemicals and apparatus

• Suppliers of items classified as possible illicit drug precursors or auxiliary reagents must have purchasers complete Form M.D.1 (reg 5D(1), Schedule 1 Form M.D.1). Suppliers must give a copy of a completed declaration to the Commissioner by facsimile (reg 5D(2)) and the copy must be completed in black ballpoint pen to ensure legibility (reg 5D(3)). Those supply steps impose administrative costs and record‑keeping obligations and make suppliers the locus of an information transfer to police.

Approved analysts, botanists and laboratories

• Approved analysts and approved botanists receive sealed samples, perform analyses, and provide certificates in prescribed forms (reg 7B(4)-(7); reg 11). The Regulations recognise interstate and other jurisdictional analyst appointments as “approved analysts” for evidentiary use (reg 4). They also prescribe that an accused may obtain copies of analyst/botanist certificates using Form M.D.15 (reg 11A). Laboratories will therefore be required to handle drug movement bags, manage attendance of chosen analysts, preserve residues and comply with certification formats.

Health professionals and regulated suppliers of poisons

• Reg 5B prescribes classes of persons (pharmacists/chemists, dentists, medical practitioners, nurse practitioners, optometrists, veterinarians) relevant to Part IV of the Act. Reg 5E prescribes the accepted forms of photographic ID for evidence of identity (driver’s licence with photo, Australian citizenship certificate, discharge documents from defence forces, JP appointment document, certain Commonwealth certificates, Western Australian photo card) for purposes of taking possession of category items. Health practitioners and pharmacists must therefore ensure appropriate identification checks are made when supplying category items.

Equipment manufacturers, importers and sellers of laboratory hardware

• Schedule 4 Div 2 lists covered “things” such as pill presses, encapsulators, rotary evaporators, round bottom reaction flasks (capacity 500 ml or greater) and certain condensers, heating mantles, and gas cylinders containing hazardous gases (e.g. methylamine, hydrogen). Sellers and importers of this equipment face an obligation to be aware that the supply, repair or modification of some items will attract category 2 treatment and supplier declaration/regulatory steps.

Private citizens and small businesses

• Individuals in possession of controlled substances, plants or paraphernalia are affected by the cannabis diversion regime (Form M.D.16), the potential for destruction notices (M.D.9) and the fees and timelines for analysis (reg 13). Small businesses that buy reagents or laboratory equipment may find themselves as suppliers or purchasers subject to declaration obligations (Form M.D.1) and identity checks (reg 5E).

Treatment providers and public health services

• The Regulation recognises needle and syringe programmes (reg 4B) and prescribes that the display or sale of paraphernalia in the course of an approved needle and syringe programme is permitted (reg 4B(3)). Approved CIS treatment providers will be appointed and must issue completion certificates in Form M.D.18 and record attendance details as set out in Form M.D.16.

Interstate and Commonwealth entities

• Approved analysts may be persons appointed under interstate Acts listed in reg 4. Reg 10A maps Commonwealth Criminal Code offences to the definition of “external serious drug offence” under the Act, thus creating cross‑jurisdictional legal consequences that affect persons charged with overseas/Comonwealth offences.

Who pays

• The Regulations allocate fees to particular actors: accused applicants pay $50 when seeking a chosen analyst (reg 7B(2)(c)); applicants requesting analysis of a suspected psychoactive substance at the Commissioner’s direction pay the fee in reg 13 (first test $500 plus GST; subsequent tests $200 plus GST) via Form M.D.10; medical practitioners attending searches are to be paid the prescribed attendance fees by the State per reg 12; suppliers bear the administrative cost of collecting declarations and faxing them to the Commissioner (reg 5D). These fees and administrative burdens transfer costs to accused persons, applicants, and suppliers depending on the action.

Who decides

• Practical discretion rests with a defined set of officials: the Commissioner of Police (or delegate) directs destruction (Form M.D.8A; reg 7A); the prescribed person for chosen analyst requests is the officer in charge of the Organised Crime Squad (reg 7B(2)(a)); the CEO (Health Legislation Administration Act) approves needle and syringe programmes for the limited sale or display prescription (reg 4B(1)-(3)). The Regulations also make justices of the peace the magistrate signatory for search warrants and information on oath (Forms M.D.7-8; reg 6).

In sum, these Regulations affect frontline police operations, defence and prosecution evidence practices, suppliers of chemicals and lab apparatus, licensed health professionals, and accused persons’ procedural rights , with costs and decision points distributed across those actors according to the steps set out in the schedules and forms.

The Regulations impose and clarify concrete duties on police, suppliers, analysts and other actors while creating or preserving procedural rights for accused persons.

Duties imposed on police and police administration

• Destruction and witnessing: When a police officer is required to cause a relevant thing to be destroyed under s 27(1) or (4) of the Act, the officer must destroy the thing by fire or water or other means ensuring complete destruction and do so in the presence of two witnesses drawn from prescribed classes (reg 7(1)(a)-(b)). The two witnesses cannot be the specific incompatible pair noted in reg 7(1)(b) and each must certify in writing that they witnessed the complete destruction (reg 7(1)(b)-(2)). This prescribes both method and supervisory oversight.
• Commissioner directions for destruction: The Commissioner (or a delegate) may direct that seized items be destroyed before they are dealt with under s 27(1) where it is not reasonably practicable to detain them and sufficient samples have been taken; that direction must be in Form M.D.8A (reg 7A).
• Chain of custody and conveyance: On an accused’s application under s 27A, the Commissioner or prescribed person must, as soon as practicable, cause sufficient samples to be conveyed in a numbered and sealed drug movement bag together with an unused bag to the Chemistry Centre (W.A.) or the Western Australian Herbarium as appropriate (reg 7B(4)). Police must also arrange for the chosen analyst or botanist to attend and must obtain receipts on return of sealed bags (reg 7B(5)-(8)).
• Forms and disclosure: Police must use prescribed forms for search warrants and information on oath (reg 6) and issue psychoactive substance destruction notices (Form M.D.9) and Cannabis Intervention Requirements (Form M.D.16) when those processes are invoked.

Duties imposed on suppliers and sellers

• Supplier declarations and transmission: For the purposes of ss 15 and 17 of the Act, suppliers must obtain a declaration in Form M.D.1 (reg 5D(1)). The supplier must then give a copy of the completed declaration to the Commissioner by facsimile to a telecommunication number provided by the Commissioner (reg 5D(2)), and the declaration must be completed in black ballpoint pen to ensure the facsimile is legible (reg 5D(3)). Those duties require suppliers to maintain ID procedures and a faxing/recording process and to accept no non‑compliant declarations.
• Evidence of identity: When taking possession of a category 1 or category 2 item for the purposes of ss 15(1)(d) or 17(1)(b)(ii) of the Act, evidence of identity may consist of only the listed documents (driver’s licence with photo, Australian citizenship certificate, certain Commonwealth documents, Western Australian photo card etc; reg 5E). Suppliers and possessors must rely on those prescribed documents.

Duties on approved analysts, botanists and laboratories

• Certificate format and content: An approved analyst’s certificate must be in the form of Form M.D.13 and an approved botanist’s certificate must be in the form of Form M.D.14 (reg 11). The content required (dates, method of analysis/examination, quantity/mass, marking, source, result) is prescribed by the forms; compliance with form is necessary for admissibility and conformity with Act s 38.
• Attendance with chosen analyst/botanist: Where an accused has elected a chosen analyst, the approved analyst or botanist must open the drug movement bag in the presence of the chosen analyst/botanist and give the samples to them for immediate analysis/examination (reg 7B(6)). The approved analyst/botanist must then receive any residue back and reseal it under the prescribed procedure before handing the sealed bag to police (reg 7B(7)).

Duties and rights for accused and applicants

• Right to chosen analyst/botanist and timing: Under reg 7B an accused has the right to apply to have sufficient samples analysed or examined by a chosen analyst or botanist. The application must be in Form M.D.8B (reg 7B(3)), must be made within the prescribed period (28 days; reg 7B(2)(b)) and be accompanied by a $50 fee (reg 7B(2)(c)). Police must then implement the conveyance and attendance process (reg 7B(4)-(7)).
• Right to copies of certificates: Under reg 11A an accused may apply for a copy of an approved analyst/botanist certificate using Form M.D.15. The right to a copy supports defence access to evidentiary material.
• Right to analysis of suspected psychoactive substances: A person served with a psychoactive substance destruction notice (Form M.D.9) may apply using Form M.D.10 to have a sample analysed by an approved analyst; the application must be accompanied by the analysis fee as set out in reg 13, and applications must be made before the destruction date stated in the notice (Form M.D.9 requires at least 3 weeks) (Form M.D.9; reg 13; Form M.D.10).

Duties and choices under the cannabis diversion process

• Issuance and completion rules: A Cannabis Intervention Requirement (Form M.D.16) allows an alleged offender either to elect prosecution within 28 days or to book and complete a Cannabis Intervention Session within 28 days. The form prescribes booking and rescheduling procedures (Form M.D.16), and the approved treatment provider must issue a certificate of completion in Form M.D.18. Failure to complete the CIS within the permitted period exposes the alleged offender to prosecution (Form M.D.16; reg 5AA).

Fees and cost‑bearing obligations

• Applicants pay for analysis: Reg 13 prescribes the analysis fee structure (first test $500 + GST, subsequent $200 + GST). Reg 7B prescribes a $50 application fee for an accused seeking a chosen analyst. Reg 12 prescribes amounts for payments to female searchers and to medical practitioners attending searches; these operate as State liabilities but the provision fixes the amounts to be paid when those services are rendered.

Evidential formality and recordkeeping

• Prescribed forms and method requirements (e.g. black ballpoint pen for facsimile transmission, numbered sealed drug movement bags) mean that compliance with the Regulations will be a necessary precondition to avoid procedural or evidential challenges. The Regulations therefore set both administrative duties and defence rights to independent analysis and access to certificates.

In sum, the Regulations allocate duties to police to preserve evidence integrity and complete prescribed witnessing and certification steps, impose procedural duties on suppliers and laboratories, and create or preserve narrow, time‑limited rights for accused persons to seek independent analysis and to elect diversion rather than prosecution.

The Regulations primarily establish procedural mechanisms and lists; they rarely create new offences or penalties themselves. Enforcement and penalties largely derive from the Act, with the Regulations supplying the documentary and operational framework used in prosecutions, diversion and administrative enforcement.

How enforcement follows from these Regulations

• Search and seizure: The Regulations prescribe the form of information on oath (Form M.D.7) and the form of a search warrant (Form M.D.8) required under ss 24 and 23 of the Act (reg 6). Proper completion and presentation of these forms give police authority to exercise statutory powers under the Act; failure to follow the prescribed form could be raised as an evidentiary or procedural challenge in subsequent proceedings.
• Evidentiary certificates: An approved analyst’s certificate in Form M.D.13 or an approved botanist’s certificate in Form M.D.14 (reg 11) is the prescribed form of evidence under s 38 of the Act. Certificates prepared according to the prescribed format will be central to prosecutions for possession, manufacture or supply as proof of composition or identity of seized material.
• Destruction notices and psychoactive substance process: Form M.D.9 is the prescribed psychoactive substance destruction notice. It must inform the person from whom the thing was seized that the substance will be destroyed on or after a stated date unless an application for analysis is made (Form M.D.9). If the person does not apply within the required time or remit the prescribed fees (reg 13), police can proceed to destroy the substance, which removes the physical object from the evidential chain but follows the Regulated procedure for doing so.
• Cannabis Intervention Requirements: The CIR (Form M.D.16) is an administrative alternative to immediate court prosecution for certain minor cannabis offences. Failure to complete the CIS within the 28‑day period or to correctly elect court triggers potential prosecution by police. The form sets out the enforcement consequences and administrative contact (Drug Diversion Coordinator). The Regulation thus creates a formalised diversion process subject to time limits and compliance checks.
• External serious drug offences and heavy enforcement tools: Reg 10A prescribes which Commonwealth Criminal Code offences map to the Act’s definition of “external serious drug offence”. That mapping has enforcement consequences through Act provisions that reference “external serious drug offence” for purposes such as asset confiscation or enhanced sentencing where the Act employs the term (the mapping itself is an enabling device for enforcement mechanisms found in the Act).

Penalties in the Act versus the Regulations

• The Regulations do not set criminal penalties for possessing specified items, nor do they prescribe fines or imprisonment rates. Those penalties remain in the Act. The Regulations instead set the procedural and evidentiary scaffolding that affects the likely success of enforcement, the ability of police to preserve or destroy evidence, and the cost and timing of third‑party analysis that may be critical to prosecutions or defence.

Administrative enforcement and discretion

• The Regulations give administrative decision‑making to named officials, with consequences for evidence and enforcement. Examples:
  • The Commissioner of Police (or delegate) may direct destruction under reg 7A where it is “not reasonably practicable to detain” the material and sufficient samples have been taken.
  • The prescribed person for chosen analyst applications is the officer in charge of the Organised Crime Squad (reg 7B(2)(a)), who must process the application and arrange conveyance.
  • The CEO (as defined in the Health Legislation Administration Act) approves needle and syringe programmes for the narrow exception in reg 4B(3).
• These administrative authorities can therefore materially affect enforcement outcomes: whether material is destroyed, what analyses are performed, and whether diversion is available.

Potential enforcement friction points documented in the Regulations

• Chain‑of‑custody formalities: Reg 7B prescribes numbered sealed drug movement bags and an exact sequence for opening/analysis/return and recept receipt. Non‑compliance could be raised by defence counsel to challenge the integrity of samples.
• Fee and timing requirements: The requirement that an accused apply within 28 days for a chosen analyst and that an application for analysis of psychoactive substances accompany a prescribed fee (reg 7B(2)(b)-(c); reg 13) creates potential forfeiture of procedural rights if missed.
• Supplier facsimile transmission and legibility: Reg 5D(2)-(3) requires a copy of a declaration to be sent by facsimile and stipulates black ballpoint pen to ensure legibility. Reliance on facsimile transmission and strict completion methods could produce administrative failures that may complicate prosecutions or give rise to compliance actions.

In practical terms, the Regulations shape enforcement by specifying how evidence is generated, moved and certified, and by making diversion and independent analysis contingent on tight timeframes and fee payments. The Regulations therefore alter the cost, timing and transparency of enforcement rather than changing substantive penalty levels.

The Regulations are intentionally cross‑referential. They operationalise the Act but also import and interact with multiple other legislative instruments and administrative regimes.

Direct interaction with the Misuse of Drugs Act 1981

• The Regulations give effect to specific Act provisions by prescribing forms, classes and procedures referenced by the Act: for example, reg 3A and reg 4 answer definitional points in s 3(1) regarding botanists and approved analysts; regs 5, 5A and Schedules 3 and 4 implement Part IV items; regs 7 and 7B flesh out s 27 and s 27A procedures for destruction and chosen analysts; regs 11 and 11A implement s 38 and s 38A certificate requirements; reg 12 gives effect to s 41(1)(a) fee provisions. The Regulations, therefore, do not replace the Act but flesh out its operational mechanics.

Health and poisons legislation

• The Regulations expressly reference the Medicines and Poisons Act 2014: Schedule 2A cl 1 imports definitions of Schedule 4, 5 and 6 poisons from the Medicines and Poisons Act (Sch 2A cl 1). The defined status of a substance under the Medicines and Poisons Act can therefore influence whether it is captured under Schedule 2A’s anabolic steroid list or specified‑drug treatment under reg 4AA.
• Reg 4B imports the CEO definition from the Health Legislation Administration Act 1984 and links the concept of a “needle and syringe programme” to the Medicines and Poisons Act 2014 s 3. The permitted display or sale of paraphernalia in approved needle and syringe programmes (reg 4B(3)) is an intersection of public health regulation and drug paraphernalia law.

Interstate statutes and recognition of analysts

• Reg 4 prescribes that people appointed as analysts under specified provisions of interstate statutes (e.g. Drugs, Poisons and Controlled Substances Act 1981 (Victoria), Poisons Act 1971 (Tasmania), Drugs Act 1908 (SA), Drugs Misuse Act 1986 (Qld), Poisons and Therapeutic Goods Act 1966 (NSW), Misuse of Drugs Act (NT), Drugs of Dependence Act 1989 (ACT)) count as approved analysts. This cross‑jurisdictional recognition matters for both evidentiary admissibility and operational cooperation between jurisdictions.

Health practitioner registration and professional regulation

• Reg 5B refers to registration under the Health Practitioner Regulation National Law (Western Australia) for the terms “chemist” and “optometrist”, and to the Veterinary Practice Act 2021 for the term “veterinarian”. Those cross‑references mean that the professional registration regime and its standards affect who qualifies as the prescriptive class for particular possession or supply exceptions under the Act.

Police Act and police rank

• Reg 7 requires witnesses for destruction to include “a police officer who is a commissioned officer appointed under the Police Act 1892 s 6” and other police ranks and nominations under the Police Act (reg 7(1)(b)(i)-(iii)). The Police Act’s appointment and rank structure therefore affects who can lawfully witness destruction under these Regulations.

Commonwealth Criminal Code and customs law

• Reg 10A maps specific Commonwealth Criminal Code sections to the Act’s concept of “external serious drug offence”. It also prescribes that certain Commonwealth Criminal Code offences correspond to repealed s 233B of the Customs Act 1901 for the purposes of the Act. This mapping creates a legal bridge between Commonwealth offence architecture and state enforcement tools (for example, if the Act uses “external serious drug offence” to trigger particular consequences).

Administrative instruments and identification regulations

• Reg 5E prescribes acceptable forms of identification, including a reference to the Western Australian Photo Card Regulations 2014 regulation 3 for the photo card definition. That means identity requirements for taking possession of category items rely on separate administrative regimes governing photo IDs.

Potential areas of operational overlap or friction

• The Regulation’s reliance on facsimile transmission for declarations (reg 5D(2)) interacts with modern communication methods and the Commissioner’s provided telecommunication number. If the Commissioner changes contact mechanisms under another instrument or if fax systems are decommissioned, operational alignment will be necessary to avoid a compliance gap.
• The recognition of interstate analysts (reg 4) depends on continuing alignment between states’ statutory appointment frameworks; changes in those interstate Acts could require administrative updates or create uncertainty about the currency of the recognition.

In all, the Regulations are designed to operate within a network of State and Commonwealth statutes and administrative rules. Compliance therefore requires attention to cross‑statute definitions, professional registration status, police administrative decisions and linked public health legislation.

The Regulations contain an explicit compilation table that documents their amendment history and several reprints. That table is part of the Regulation text and is the authoritative schedule of changes included in the compilation.

Key steps in the Regulation’s life as recorded in the table

• Original enactment and commencement: Misuse of Drugs Regulations 1982 were published 13 August 1982 and came into force 1 September 1982 (r 2; compilation table).
• Amendments in the 1990s: Notable amendments include 1991, 1996 and 1999 changes (see compilation table entries for 9 Aug 1991; 2 Jul 1996; 29 Jan 1999). Reg 3A and several form changes were inserted in 1996 (Gazette 2 Jul 1996 p. 3197).
• Major 2004 redrafting: A package of amendments was published 10 December 2004 and took effect on 1 January 2005. That amendment introduced Schedules 3 and 4 (Category 1 and 2 items) and several regulatory insertions (reg 4, regs 5-5E), as evidenced by multiple notations referencing Gazette 10 Dec 2004 p. 5967‑80.
• Ongoing updates in 2006-2016: The compilation table shows periodic amendments in 2006, 2007 (including reg 10A on external serious drug offences in 2007), 2009, 2010, and multiple interventions across 2011, 2012, 2013 and 2014. For example, reg 4 was inserted in 2004, reg 4AA (specified drugs) was added via Police Regulations Amendment (Poisons) Regulations 2016 and inserted 17 Jan 2017 (Gazette 17 Jan 2017 p. 412,note the Sch 2A and reg 4AA insertions).
• Introduction of the cannabis diversion regime and forms: The Cannabis Intervention Requirement, related withdrawal and certificate forms (Forms M.D.16-18) were inserted by Gazette 21 Mar 2014 (Form M.D.16 inserted: Gazette 21 Mar 2014 p. 738-41; reg 5AA inserted: Gazette 29 Jul 2011 p. 3139). The compilation table shows that reg 5AA was inserted in 2011 with forms added in 2014.
• Fee and analysis price updates: Reg 13 setting the fee schedule for analysis (first test $500 + GST; subsequent $200 + GST) was inserted 5 January 2016 (Gazette 5 Jan 2016 p. 4) and remains the operative price point in the regulations.
• Recent amendment: Misuse of Drugs Amendment Regulations 2019 (Gazette 28 May 2019 p. 1703) and Misuse of Drugs Amendment Regulations 2022 (SL 2022/92 17 Jun 2022) are the latest amendments recorded in the compilation table.
• Reprints: The compilation table lists reprints and reprint dates (e.g. Reprint of 19 Oct 2001; Reprint 2 as at 22 Feb 2008; Reprint 3 as at 6 Jan 2012; Reprint 4 as at 17 Feb 2017). These reprints incorporate previous amendments and should be consulted for consolidated text.

Schedule insertions and deletions

• Schedules and forms have been repeatedly updated across the amendment history. For instance, Forms M.D.2-M.D.6 were deleted on 19 Dec 2000 (as shown in the Forms section), Forms M.D.11 and M.D.12 were deleted in 2013, and various schedules (Schedules 2A, 3, 4) were inserted in the 2004-2017 amendment cycle. Specific entries in schedules (e.g. quantities next to chemical names) have been individually amended on dates recorded in the schedule notes (see Schedule 3 Div 1 amendments: Gazette 23 Jun 2009 p. 2493; 28 May 2019 p. 1703).

Institutional and definitional updates

• The Regulations have been adjusted to reflect changes in department names and statutory designations: the Other Notes recorded in the compilation cite the Alteration of Statutory Designations Order (No. 2) 2013 changing the Department of Conservation and Land Management references to the Department of Parks and Wildlife as an example.

What the amendment history signals for users

• Frequent and technology‑driven updates: The Regulations have been amended repeatedly to respond to evolving drug markets (adding specified drugs and anabolic steroids), to modernise processes (e.g. new cannabis diversion forms), and to align with other laws. Practitioners should consult the latest reprint or the consolidated online version to ensure they rely on current text.
• Item‑level dynamism in Schedules: The lists in Schedule 2A, Schedule 3 and Schedule 4 have been selectively amended; these changes can affect threshold quantities and whether a substance or apparatus attracts category 1 or 2 treatment. For compliance purposes, businesses and defence counsel must check the current schedule entries.

The compilation table in the Regulations themselves is the authoritative register of amendment steps and dates; practitioners should use it to trace the provenance of any current regulation text or schedule entry cited in litigation or in compliance checks.

The Regulations as printed do not record case law or judicial determinations. The text contains no citations to reported litigation and the schedules and compilation table do not list decisions. Therefore the Regulations themselves do not provide a litigation history.

That absence does not mean these provisions have never been litigated; rather, it means the statutory instrument does not include a record of adjudication. The Regulations do, however, create and shape common areas where litigation and evidentiary challenges frequently occur in practice. The key Reg‑based issues likely to have generated litigation (and which practitioners should watch for in case law) include:

Evidentiary sufficiency of analyst/botanist certificates

• Reg 11 prescribes the form of certificates (Forms M.D.13-14). Judicial attention often focuses on whether a certificate complies with statutory form and whether the analyst’s methodology and chain of custody satisfy evidentiary thresholds under s 38 of the Act. Reg 7B’s chain‑of‑custody procedures for chosen analysts (numbered sealed drug movement bag procedures, attendance and return of residues) create factual matrices upon which admissibility and weight challenges can be built.

Procedural defects in search warrant and information on oath

• Reg 6 prescribes the information on oath and search warrant forms (Forms M.D.7 and M.D.8). Challenges in criminal proceedings may question whether the information supplied gave rise to reasonable grounds, whether the correct form was used, or whether the warrants were granted and executed within the statutory constraints. These are matters of statutory interpretation and fact that typically find their way into suppression or exclusion applications during trials.

Destruction notices and access to samples

• The interplay between Form M.D.9 (psychoactive substance destruction notice), reg 13 (analysis fees) and Form M.D.10 (application to have a sample analysed) creates potential grounds for litigation if a party claims they were denied meaningful access to an independent analysis due to improper notice, lack of time, unfair fee imposition, or defective delivery of the notice (Form M.D.9 prescribes personal or postal service options). Reg 7A gives the Commissioner the power to direct destruction where it is not reasonably practicable to detain the thing, subject to sample‑taking; judicial review or evidentiary challenges can flow from claims an early destruction direction was unlawful or procedurally unfair.

Cannabis diversion, administrative decision‑making and fair process

• The CIR process (reg 5AA; Form M.D.16) places discretion on police for rescheduling and for approving extensions. Procedural fairness, waiver of rights, and whether an accused properly elected to accept diversion rather than court could be contested in limited circumstances (e.g. where the form or explanation was deficient). The Regulations themselves specify the diversion process; contested fact scenarios around attendance, booking and extension may give rise to administrative or criminal litigation about whether diversion was properly offered or validly completed.

Mapping Commonwealth offences to the Act

• Reg 10A’s mapping of specified Commonwealth Criminal Code sections to the Act’s “external serious drug offence” definition can give rise to litigation where the precise correspondence and legal effect is contested in a sentencing, confiscation or cross‑border enforcement context. Questions may arise about whether a particular Commonwealth offence is sufficiently analogous to the Act’s definitions to attract specific Act consequences.

Chain‑of‑custody and contamination claims

• Reg 7B’s detailed chain‑of‑custody steps for chosen analyst attendance, bag opening and resealing are designed to prevent contamination claims. Failure to follow those detailed steps is exactly the kind of procedural gap that defence counsel may exploit, and so such departures are likely to appear in contested prosecutions.

Because the Regulations do not contain case citations, practitioners must search court databases for decisions that reference these Regulations and the relevant forms. The Regulations’ provisions indicate the operative factual areas where litigation attention is most likely concentrated: certificate formalities and admissibility (reg 11), sample access and timelines for analysis (reg 7B, reg 13, Form M.D.9-M.D.10), warrant and information‑on‑oath compliance (reg 6), and destruction procedures and witness certification (reg 7).

The Regulations contain detailed procedural and list‑based requirements. Small operational failures can have material legal consequences. The following “gotchas” are concrete traps and friction points drawn directly from the text.

Fax and ink colour requirement for supplier declarations (reg 5D)

• Reg 5D(2) requires that a copy of a completed declaration be sent to the Commissioner by facsimile transmission to a telecommunication number provided by the Commissioner. Reg 5D(3) requires that the copy sent by facsimile be completed in black ballpoint pen to ensure the facsimile copy is legible. The requirement to use facsimile and black ballpoint ink is a specific technical compliance step. If a supplier uses another transmission method, or a different ink, the Commissioner may not accept the declaration, creating regulatory or evidentiary problems.

Strict identity documents for possession of category items (reg 5E)

• Evidence of identity for taking possession of category 1 or 2 items is strictly limited to a discrete list of documents (driver’s licence with photograph, Australian citizenship certificate, defence discharge document, JP appointment document, specified Commonwealth certificates, or WA photo card). Other photo IDs that might seem acceptable (e.g. foreign driver’s licences without specified certification) are not on the list. Suppliers and purchasers must ensure they obtain one of the listed documents to comply with ss 15 and 17 in the Act as implemented by reg 5E.

Quantities and item detail are precise and uneven (Schedules 3 & 4)

• Schedule 3 and Schedule 4 list items and, for many, a specified threshold quantity. Examples from the schedules include Pseudoephedrine (including salts) 37 g (Sch 3 Div 1), 1‑Phenyl‑2‑propanone 39 g (Sch 3 Div 1), Acetic anhydride 50 ml (Sch 3 Div 1), Lithium (alkali metal) 7 g (Sch 4 Div 1), Methylamine 135 ml (Sch 4 Div 1), Piperonal 50 g (Sch 4 Div 1), Safrole 69 ml and Sassafras oil 91 ml (Sch 4 Div 1). These precise thresholds mean that small measurement differences can change legal characterisation. Practitioners should note that schedules have been amended repeatedly; reliance on an outdated schedule can lead to compliance failures.

Time limits and fees for chosen analyst applications (reg 7B)

• An application by an accused to have a sample analysed by a chosen analyst must be within the prescribed period (reg 7B(2)(b) prescribes 28 days) and accompanied by a $50 fee (reg 7B(2)(c)). Missing the 28‑day window or failing to pay the $50 could forfeit the right to a chosen analyst under s 27A. The regulation does not provide for fee waivers in the text, so the accused bears the payment requirement.

Analysis costing and test multiplicity (reg 13)

• Reg 13 prescribes $500 + GST for the first test and $200 + GST for each additional test requested by an accused when an approved analyst requires more than one test. That schedule can create material costs for the accused or applicant seeking detailed analysis. The regulation also links the analysis fee to administrative decisions in Forms M.D.9 and M.D.10, and the applicant must pay before the destruction date.

Seizure and destruction notice timing (Form M.D.9)

• Form M.D.9 specifies that the destruction date must be at least three weeks after notice is given. Applicants must act within that time to request analysis. Failure to act within the time window can result in irreversible destruction of the sample.

Operational reliance on specific police ranks and witness combinations (reg 7)

• Reg 7 prescribes that the two witnesses to destruction must be from specified classes and not the incompatible pair. The precise composition rules may cause delay if appropriate witnessing personnel are not available immediately. Moreover, each witness must certify in writing (reg 7(2)); failure to obtain the required certificates can make destruction technically defective.

Use of drug movement bags and residue handling (reg 7B)

• The drug movement bag procedures are detailed: samples must be conveyed in a numbered and sealed drug movement bag with an unused bag; the approved analyst/botanist must open the bag in the presence of the chosen analyst; residue must be returned and resealed in the unused bag by the approved analyst/botanist (reg 7B(4)-(7)). Any divergence from this sequence risks an argument of contamination or tampering.

Paraphernalia treatment and narrow exceptions for needle and syringe programmes (reg 4B)

• Reg 4B prescribes shishas and hookahs as paraphernalia for s 7B(5) purposes and allows display or sale in the course of an approved needle and syringe programme. The exception applies only where the programme is approved by the CEO (reg 4B(1)-(3)). Unapproved display or sale remains prohibited; actors relying on public health justifications must verify CEO approval.

Recognition of overseas universities and analysts (reg 3A and reg 4)

• Reg 3A prescribes an explicit list of universities (including several overseas universities) for the definition of botanist. Reg 4 prescribes classes of persons from other jurisdictions whose appointment qualifies them as approved analysts. Practitioners should not assume automatic recognition for other institutions or persons not listed; only the listed institutions and classes are prescribed.

Dependence on facsimile and postal processes (Forms M.D.9-M.D.10)

• The Regulations and forms envisage postal and facsimile transmission as primary administrative channels for notices and applications. In practice, reliance on these older channels can produce delay or errors if contact details change. Users should ensure that the contact mechanisms (fax number provided by the Commissioner; postal addresses listed in Forms) are current.

These specific technical requirements are not merely clerical; they govern critical evidentiary and procedural rights. Failure to meet them can produce loss of rights, loss of material evidence, unexpected fees, or procedural objections in court.

This section sets out practical, stepwise compliance measures tied to the Regulations’ mandatory requirements. It is organised by actor and by common regulatory trigger.

For suppliers of potential illicit precursors and apparatus

• Use Form M.D.1 for every supply covered by the declaration requirement (reg 5D(1) and Schedule 1 Form M.D.1). Ensure the purchaser completes all applicable fields, including intended use, purchaser details and identification attachments.
• Verify identity using only the documents listed in reg 5E when required to evidence identity for taking possession of category items (driver’s licence with photograph, Australian citizenship certificate, defence discharge documents, JP appointment document, Commonwealth identity certificate, consulate descent certificate, WA photo card). Keep copies of the ID as the Form M.D.1 expressly asks for attached photo ID.
• Fax a copy of the completed declaration to the Commissioner using the telecommunication number provided by the Commissioner (reg 5D(2)). Complete Form M.D.1 in black ballpoint pen where the facsimile copy is to be sent as black‑ink requirement is mandated (reg 5D(3)). Maintain a fax transmission log or confirmation and retain copies for audit and evidentiary purposes.
• Maintain records of orders and facsimile receipts in case of later inquiries or defence challenges.

For chemists, pharmacists and regulated health professionals (prescribed classes)

• Confirm registration status under the Health Practitioner Regulation National Law (WA) and rely on reg 5B classes when interacting with the Act’s parts that exempt or qualify professionals. Keep a compliance checklist for supply of category items, including ID checks (reg 5E) and completion of declarations (Form M.D.1).

For police and investigating officers

• When seizing and storing suspected drugs, immediately arrange sufficient samples to be taken if destruction is contemplated (reg 7 and Form M.D.9). If destruction before trial is needed, use Form M.D.8A to direct destruction (reg 7A).
• For destruction operations: follow reg 7 exactly , choose destruction by fire, water or other means ensuring “complete destruction”; ensure two witnesses from the prescribed classes are present, and obtain written signed certification from each witness that they witnessed the complete destruction (reg 7(1)-(2)). Retain the witness certificates with the file.
• For an accused’s chosen analyst application: once Form M.D.8B is received, ensure that sufficient samples are conveyed in a numbered sealed drug movement bag, with an unused bag accompanying it, to the Chemistry Centre (W.A.) or Western Australian Herbarium as appropriate (reg 7B(4)). Arrange attendance with the chosen analyst and approved analyst/botanist (reg 7B(5)); open the bag in the presence of the chosen analyst and approved analyst/botanist (reg 7B(6)); and follow the residue return and resealing process under reg 7B(7). Obtain a receipt on return (reg 7B(8)). Maintain chain‑of‑custody records and numbered bag logs.
• For psychoactive substance destruction notices (Form M.D.9), ensure the destruction date is at least three weeks after the notice is given; state clearly the fee required for analysis under reg 13; and record personal or postal service per the form’s service options. If an application for analysis is received, process the application and ensure the approved analyst is engaged in accordance with Form M.D.10 and reg 13 fee mechanisms.

For accused persons and defence counsel

• If served with Form M.D.9 (destruction notice), act promptly: submit Form M.D.10 to apply for analysis before the destruction date and remit the analysis fee required by reg 13 (first test $500 + GST, additional tests $200 + GST) if you want an independent analysis to be conducted. Note that the destruction date must be at least three weeks hence (Form M.D.9); use that window to arrange payment and an approved analyst.
• If seeking to exercise the chosen analyst right under s 27A, file Form M.D.8B within 28 days and include the $50 application fee (reg 7B(2)). Coordinate attendance of the chosen analyst with the approved facility and ensure you or your chosen analyst are present at analysis as required by reg 7B(6).
• For clients issued with a Cannabis Intervention Requirement (Form M.D.16), advise the client of the 28‑day election window. If the client prefers diversion, instruct them to book a CIS immediately via the Booking Service number on Form M.D.16 and attend with photographic ID. If the client prefers court, complete the election section and post to the Drug Diversion Coordinator as specified in the form within 28 days.

For laboratories and approved analysts/botanists

• Use Forms M.D.13 (analyst certificate) and M.D.14 (botanist certificate) when certifying analyses and ensure every required field is completed. Labouratorial methods and details of analysis/examination should be recorded as required by the forms.
• Where a chosen analyst attends, comply with reg 7B: open numbered sealed drug movement bags only in the presence of the chosen analyst; hand samples to the chosen analyst and allow immediate analysis; return residues and follow resealing instructions; sign receipts for police as required (reg 7B(6)-(8)). Preserve the residue and original seal number records for chain‑of‑custody continuity.

For businesses dealing in equipment or gases listed in Schedule 4 Div 2

• Be aware that certain apparatus and gas cylinders are category 2 items and may trigger supplier declaration and possession obligations (reg 5A; Sch 4 Div 2). For example, pill presses, encapsulators, heating mantles over a certain capacity, rotary evaporators, and gas cylinders containing methylamine, hydrogen or hydrogen sulphide are listed. Implement internal compliance checks, ID verification per reg 5E where relevant, and supplier declaration procedures when transferring such items.
• If repairing or modifying listed items (e.g. round bottom reaction flasks of capacity 500 ml or greater), be conscious that those repair/repair‑parts provisions are explicitly captured in the schedule (Sch 4 Div 2).

For administrators of needle and syringe programmes and treatment providers

• Verify CEO approval for needle and syringe programmes when relying on the exemption in reg 4B(3) for display or sale of paraphernalia. Maintain records of CEO approval and the scope of permitted activities.
• For Cannabis Intervention Sessions, ensure the treatment provider issues a certificate in Form M.D.18 upon completion and records the appointment details as required by Form M.D.16.

Recordkeeping, audits and training

• Maintain documentation of all declarations, facsimile confirmations, chain‑of‑custody logs (numbered sealed drug movement bags), destruction witness certificates, analyst certificates, and service proofs for Forms M.D.9 and M.D.16. These records are crucial to demonstrate compliance, to rebut procedural challenges, and to provide evidence in prosecutions or administrative reviews.
• Train frontline staff (police, sellers of listed chemicals and equipment, lab staff, and clinic staff handling CIS bookings) on precise timelines, required forms, acceptable identity documents, and the ink/fax technicalities. Include a checklist for each regulated transaction to reduce the risk of technical non‑compliance.

Practical mitigation of risks and costs

• Budget for analysis fees and application fees: accused clients should be advised of the $50 chosen analyst application fee (reg 7B(2)(c)) and the standard analysis fee scale in reg 13. For suppliers, factor in the administrative cost of completing and faxing declarations.
• Monitor the schedules: Schedule 2A, Schedule 3 and Schedule 4 change via amendments. Use the compilation table and the Government Gazette to confirm up‑to‑date schedule entries before relying on threshold quantities or item lists.
• Digital fallback planning: Because the Regulations reference facsimile, ensure a working fax capability, or obtain and retain the Commissioner’s up‑to‑date contact instructions; where the Commissioner has published alternate contact methods, document their appropriateness with compliance counsel.

Following these concrete steps will align operational practice with the specific requirements of the Regulations: collect and transmit correct forms, use prescribed identification, meet strict time limits and fees, preserve chain of custody rigorously, and document each statutory step in the format and medium the Regulations require.