Drugs, Poisons and Controlled Substances (Poppy Cultivation and Processing) Amendment Act 2014

Drugs, Poisons and Controlled Substances (Poppy Cultivation and Processing) Amendment Act 2014

No. 13 of 2014

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Principal Act

Part 2—Poppy Cultivation and Processing

4New Part IVB inserted

Part ivb—Licences to Cultivate Alkaloid Poppies and Process Poppy Straw

Division 1—Preliminary

69NDefinitions

69NAMeaning of associate

69NBMatters to be considered in determining a fit and
proper person

Division 2—Poppy cultivation licence

69OApplication for poppy cultivation licence

69OASecretary must investigate application

69OBDetermining an application

69OCTerms and conditions of a poppy cultivation licence

69ODPoppy cultivation licence is not transferable

69OEEmployee of licensed grower authorised to undertake activities under licence

69OFEmployee identification certificate issued by licensed grower

69OGApplication for renewal of licence

69OHSecretary must investigate renewal application

69OIDetermining a renewal application

Division 3—Poppy processing licence

69PApplication for poppy processing licence

69PASecretary must investigate application

69PBDetermining an application

69PCTerms and conditions of a poppy processing licence

69PDPoppy processing licence is not transferable

69PEEmployee of licensed processor authorised to
undertake activities under licence

69PFEmployee identification certificate issued by licensed processor

69PGApplication for renewal of licence

69PHSecretary must investigate renewal application

69PIDetermining a renewal application

Division 4—General provisions applying to a poppy cultivation licence or poppy processing licence

69QAmendment of licences

69QASuspension or cancellation of licences

Division 5—Inspection and enforcement

69RInspectors under this Part

69RAInspectors identification certificate

69RBGeneral powers of inspector

69RCProcedure on seizing a document, thing or taking a sample

69RDPower to use electronic equipment at premises

69REPower to copy information on electronic storage
devices

69RFInspector must not damage equipment

69RGInspector may possess alkaloid poppies or poppy
straw

69RHInspector has power to detain or seize alkaloid
poppies or poppy straw

69RIProcedure on detaining or seizing alkaloid poppies
or poppy straw

69RJSecretary has power to dispose or deal with seized alkaloid poppies or poppy straw

69RKRetention and return of seized alkaloid poppies or
poppy straw

69RLMagistrates' Court may extend 3 month period

69RMForfeiture, harvest and destruction of alkaloid poppies
or poppy straw

69RNRecovery of costs

69ROInspector may access ratepayer information

69RPProtection against self-incrimination

69RQPower to issue infringement notices

69RRInfringement penalty

Division 6—Offences

69SOffence to fail to report the amendment or
cancellation of a contract

69SAOffence to fail to report amendment or cancellation

69SBOffence to fail to report on any change of details of
the licensed grower or the licensed processor

69SCOffence to fail to surrender licence on suspension or cancellation

69SDOffence to contravene a licence

69SEOffence to fail to prohibit access to premises

69SFOffence to fail to carry and produce identification certificate

69SGOffence to employ disqualified persons under licence

69SHOffence for disqualified person to be employed by licensed grower or licensed processor

69SIEmployee must comply with terms and conditions
of licence

69SJCriminal liability of licensed grower or licensed processor—failure to exercise due diligence

69SKOffence to fail to provide an identification certificate
for employees

69SLOffence to hinder or obstruct inspector

69SMOffence to remove detained or seized alkaloid poppies
or poppy straw

Division 7—Alkaloid Poppy Register

69TAlkaloid poppy register

69TARequest to register a contract

69TBAccess to the alkaloid poppy register restricted

69TCPerson with access to alkaloid poppy register not to disclose personal information from it

69TDDelegation

Division 8—Review by VCAT

69URefusal of licence or renewal of licence on grounds
of protected information

69UAReview by VCAT

69UBVCAT to inquire on grounds for refusal

69UCAppointment of special counsel

69UDProcedure for hearing—protected information

69UEDecision of VCAT where protected information
exists

69UFGeneral provisions for hearing matters involving protected information

Division 9—Regulations

69VRegulations

Part 3—Other Amendments

5List of licences and permits

6Evidentiary

7General regulations

Part 4—Repeal of Amending Act

8Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Drugs, Poisons and Controlled Substances (Poppy Cultivation and Processing) Amendment Act 2014[†]

No. 13 of 2014

[Assented to 18 March 2014]

Drugs, Poisons and Controlled Substances (Poppy Cultivation and Processing) Amendment Act 2014
No. 13 of 2014

The Parliament of Victoriaenacts:

Part 4—Repeal of Amending Act

Drugs, Poisons and Controlled Substances (Poppy Cultivation and Processing) Amendment Act 2014
No. 13 of 2014

Part 1—Preliminary

1Purpose

The main purpose of this Act is to amend the Drugs, Poisons and Controlled Substances Act 1981—

(a)to provide for a licensing scheme to cultivate alkaloid poppies and process poppy straw; and

(b)to make other minor and consequential amendments.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

s. 2

(2)If a provision of this Act does not come into operation before 1 December 2014, it comes into operation on that day.

3Principal Act

See:
Act No.
9719.
Reprint No. 10
as at
30 November 2012
and amending
Act Nos 57/2012, 82/2012 and 70/2013
LawToday:
www.
legislation.
vic.gov.au

In this Act, the Drugs, Poisons and Controlled Substances Act 1981 is called the Principal Act.

______

Part 2—Poppy Cultivation and Processing

4New Part IVB inserted

s. 4

After Part IVA of the Principal Act insert—

"Part ivb—Licencesto Cultivate Alkaloid Poppies and Process Poppy Straw

Division 1—Preliminary

69NDefinitions

In this Part—

alkaloid poppy means a plant or any part of a plant whether fresh or dried of—

(a)Papaverbracteatum Lindley; or

(b)Papaversomniferum L.;

alkaloid poppy register means the register established under section 69T;

associate has the same meaning given in section 69NA;

Commonwealth licence to export means a licence to export narcotic substances which relates to the export of poppy straw under the Customs Act 1901 of the Commonwealth;

Commonwealth licence to manufacturemeans a licence to manufacture narcotic drugs which relates to the manufacturing of opiates from alkaloid poppies under the Narcotic Drugs Act 1967 of the Commonwealth;

cultivate in relation to an alkaloid poppy hasthe same meaning as it has in section 70;

detention or seizure receipt means a receipt given in accordance with section 69RC or69RI;

disqualified person means—

(a)a person who is under the age of 17 years unless the person is an apprentice or trainee undertaking an approved training scheme within the meaning of the Education and Training Reform Act 2006; or

(b)a person against whom a finding of guilt in respect of a serious offence was made by a court (whether in or outside Victoria) in the 10 years preceding the date an application is made under this Part; or

s. 4

(c)a person against whom a finding of guilt for an offence under this Act or an offence under a corresponding law of another jurisdiction was made by a court (whether in or outside Victoria) in the 5 years preceding the date an application is made under this Part; or

(d)a person who belongs to a prescribed class of persons;

employee,in relation to a licensed grower or a licensed processor, includes a person who is—

(a)employed under a contract of employment; or

(b)employed under a contract of training; or

(c)engaged under any other contract to perform a specified task authorised under a poppy cultivation licence or a poppy processing licence;

employee identification certificate means a certificate issued to an employee by a licensed grower under section 69OFor by a licensed processor under section69PF;

s. 4

harvest and destruction order means an order made under section 69RM(3);

inspector means a person authorised under section 69R and any member of the police force;

inspector identification certificate means a certificate issued to an inspector under section69RA;

licence holder means—

(a)a licensed grower; or

(b)a licensed processor;

licensed grower means the holder of a poppy cultivation licence;

licensed processor means the holder of a poppy processing licence;

poppy cultivation licence means a licence issued under section 69OB(2);

poppy processing licence means a licence issued under section 69PB(2);

poppy straw means the upper parts of an alkaloid poppy, including the stem and capsule, harvested after mowing;

process,in relation to poppy straw, means—

(a)to prepare or treat poppy straw in any manner other than refinement, concentration, extraction or reaction unless the refinement, concentration, extraction or reaction is for chemical analysis for non-therapeutic use; or

s. 4

(b)to store poppy straw;

protected information means any information, document or thing the production or inspection of which—

(a)is likely to reveal the identity of a person or a member of the police force who provided any information that formed the basis of a decision of the Chief Commissioner of Police to oppose the issuing or renewal of a poppy cultivation licence or a poppy processing licence; or

(b)is likely to reveal the identity of a person whose name appears in any evidence given or information provided to a member of the police force in the course of any investigation; or

(c)is likely to reveal the identity of a person who is or has been the subject of an investigation conducted by a member of the police force; or

(d)is likely to reveal an investigation method used by members of the police force; or

(e)is likely to jeopardise the safety of a person or member of the police force referred to in paragraph (a), (b) or (c); or

s. 4

(f)is likely to put at risk an ongoing investigation by a member of the police force; or

(g)is otherwise not in the public interest;

risk management plan means a plan that forms part of a poppy cultivation licence or a poppy processing licence;

Secretary means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Environment and Primary Industries;

seized material means any alkaloid poppies, poppy straw or material derived from alkaloid poppies or poppy straw seized by an inspector under section 69RH;

serious offence means—

(a)an indictable offence involving dishonesty, fraud or assault; or

(b)an indictable offence involving possession, or cultivation of, or trafficking in, a drug of dependence; or

(c)any other indictable offence under this Act; or

(d)an indictable offence under the law of another jurisdiction involving—

(i) dishonesty, fraud or assault; or

(ii)possession, or cultivation of, or trafficking in, a drug of dependence;

specified premises means premises to which a licence under this Part applies.

69NAMeaning of associate

s. 4

(1)For the purposes of this Part, a person who is of or above the age of 18 years is an associate of an applicant for a poppy cultivation licence or a poppy processing licence or a licence holder if the person—

(a)holds any relevant financial interest, or is entitled to exercise any relevant power (whether in right of the person or on behalf of any other person) in the business of the applicant or the licence holder to which the licence relates, and by virtue of that interest or power, is able to exercise a significant influence over or with respect to the management or operation of the business to which the licence relates; or

(b)holds any relevant position, whether in right of the person or on behalf of any other person in the business of the applicant or the licence holder to which the licence relates; or

(c)is a relative of the applicant or the licence holder.

(2)In subsection (1)—

relative means a person who is—

(a)a spouse of the applicant or the licence holder by marriage;

(b)a domestic partner—

(i) in a registered relationship within the meaning of the Relationships Act 2008with the applicant or the licence holder; or

s. 4

(ii)of the applicant or the licence holder to whom he or she is not married but with whom the applicant or the licence holder is living as a couple on a genuine domestic basis (irrespective of gender) andin determining whether the persons are domestic partners of each other, all of the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case;

(c)a parent;

(d)a step parent;

(e) a sibling or step-sibling;

(f) a child, stepchild or adopted child;

relevant financial interest in relation to a business means—

(a)any share in the capital of the business; or

(b)any entitlement to receive any income derived from the business;

s. 4

relevant position in relation to the business of an applicant for a poppy cultivation licence or a poppy processing licence or a licence holder means—

(a)the position of director, partner, trustee, manager or other executive position or secretary, however that position is designated; and

(b)any other person determined by the Secretary to be associated or connected with the ownership, administration or management of the operations or business of the applicant;

relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others—

(a)to participate in any directorial, managerial or executive decision; or

(b)to elect or appoint any person to any relevant position.

69NBMatters to be considered in determining a fit and proper person

(1)For the purpose of preventing criminal activity in the cultivation of alkaloid poppies and the processing of poppy straw, the Secretary must not issue a licence under this Part to an applicantunless the Secretary is satisfied that—

s. 4

(a)the applicantor any associate of the applicanthas not been found guilty in respect of a serious offence (whether in or outside Victoria) during the 10 years preceding the date of making the application under this Part; and

(b) the applicantand each associate of the applicantis a suitable person to be concerned in or associated with the cultivation of alkaloid poppies or the processing of poppy straw, as the case requires; and

(c) the applicant's property or premises will be suitable for the cultivation of alkaloid poppies or the processing of poppy straw, as the case requires, in relation to location, facilities and proposed security arrangements; and

(d)the applicant meets the prescribed requirements (if any).

(2)For the purpose of preventing criminal activity in the cultivation of alkaloid poppies and the processing of poppy straw, the Secretary must not—

(a)renew a poppy cultivation licence of a licensed grower unless the Secretary is satisfied that—

(i) the licensed grower or any associate of the licensed grower has not been found guilty in respect of a serious offence (whether in or outside Victoria) during the 3 years preceding the date of making the application for renewal under this Part; and

(ii)the licensed grower and each associate of the licensed grower is a suitable person to be concerned in or associated with the cultivation of alkaloid poppies; and

s. 4

(iii)the licensed grower's property or premises are suitable for the cultivation of alkaloid poppies, in relation to location, facilities and proposed security arrangements; and

(iv)the licensed grower meets the prescribed requirements (if any); or

(b)renew a poppy processing licence of a licensed processor unless the Secretary is satisfied that—

(i) the licensed processor or any associate of the licensed processor has not been found guilty in respect of a serious offence (whether in or outside Victoria) during the 12 months preceding the date of making the application for renewal under this Part; and

(ii)the licensed processor and each associate of the licensed processor is a suitable person to be concerned in or associated with the processing of poppy straw; and

(iii)the licensed processor's property or premises are suitable for the processing of poppy straw in relation to location, facilities and proposed security arrangements; and

s. 4

(iv)the licensed processormeets the prescribed requirements (if any).

(3) Without limiting subsection (1) or (2), the Secretary may consider whether—

(a)the applicant,the licensed grower or the licensed processor and each associate of the applicant,the licensed grower or the licensed processoris of good repute, having regard to character, honesty and integrity; and

(b)the applicant,the licensed grower or thelicensed processor or any associate of the applicant,the licensed grower or the licensed processorhas a history of non-compliance with the Act; and

(c)in the case of an application for a licence, the applicantor any associate of the applicanthas within the 10 years preceding the date of making the application been found guilty by a court (whether in or outside Victoria) of any offence; and

(d)in the case of an application for the renewal of a poppy cultivation licence, the licensed grower or any associate of the licensed grower has within the 3years preceding the date of making the application for renewal been found guilty by a court (whether in or outside Victoria) of any offence; and

(e)in the case of an application for the renewal of a poppy processing licence, the licensed processor or any associate of the licensed processor has within the 12 months preceding the date of making the application for renewal been found guilty by a court (whether in or outside Victoria) of any offence; and

s. 4

(f)in the case of an applicant,a licensed grower or a licensed processorthat is not a natural person, the applicant,the licensed grower or the licensed processorhas a satisfactory ownership, trust or corporate structure; and

(g)the applicant,the licensed grower or the licensed processoris of sound and stable financial background; and

(h)the financial circumstances of the applicant,the licensed grower or the licensed processor may significantly limit the person's capacity to meet the person's obligations in conducting activities under the licence in compliance with the terms and conditions applying to the relevant licence.

Division 2—Poppy cultivation licence

69OApplication for poppy cultivation licence

(1)A person may apply for a poppy cultivation licence which authorises a person for commercial purposes relating to therapeutic use—

s. 4

(a)to cultivate or possess alkaloid poppies; and

(b)to sell or supply poppy straw to a licensed processor at premises specified in the licence.

(2)A person may apply for a poppy cultivation licence for research purposes relating to non-therapeutic use—

(a)to cultivate or possess alkaloid poppies; and

(b)to conduct measurements, analyses and extractions, including extraction of alkaloids from alkaloid poppies for chemical analyses at specified premises; and

(c)to supply alkaloid poppies or poppy straw to a licensed processor.

(3)An application under subsection (1) or (2) must—

(a)be in writing; and

(b)be accompanied by a copy of the proposed risk management plan; and

(c)be accompanied by the relevant prescribed application fee (if any); and

(d)be accompanied by any other prescribed particulars.

(4)An application under subsection (1) or (2) must contain or be accompanied by evidence to the satisfaction of the Secretary that the applicant—

(a)is a fit and proper person to be given a licence; and

s. 4

(b)in the case of an application under subsection (1), intends to undertake a bona fide commercial activity relating to the therapeutic use of alkaloid poppies under the licence and includes evidence of the commercial activity to be carried out; or

(c)in the case of an application under subsection (2), intends to undertake a research activity relating to the nontherapeutic use of alkaloid poppies under the licence and includes evidence that the research activity would be conducted by a person with appropriate scientific training using an appropriate methodology.

(5)An application under subsection (1) or (2) must contain any other information about the applicant or the application which the Secretary reasonably requires to assist in assessing the application.

69OASecretary must investigate application

(1)On receiving an application under section69O the Secretary—