This paper considers how a new scheme for cautioning minor cannabis offenders in Western Australia (WA) has resulted in manifest unfairness of how a person can expunge a record for a conviction for a minor cannabis offence, depending on whether they were convicted before or after 1 August 2011.
This issue arises from the adoption of the cannabis intervention requirement (CIR) scheme, which commenced in WA on 1 August 2011, after amendments to the Misuse of Drugs Act 1981 (MDA), for police to issue a caution for two specific minor cannabis offences, involving possession –
- of any drug paraphernalia in or on which there is cannabis (MDA Section 7B(6)), or
- of not more than 10 grams of cannabis (MDA Section 6(2)).
Because of the approach adopted by the Cannabis Law Reform Act 2010, which amended the Spent Convictions Act 1988, there are now two pathways to obtain a spent conviction order for a minor cannabis offence, depending on whether the person was convicted before or after 1 August 2011.
The differences in the time between conviction and when an application for a spent conviction order may be lodged, are considerable because if it was a minor cannabis conviction pre August 2011 the prescribed period is 10 years, whereas if it is a conviction from 1 August 2011, the prescribed period is three years.