Poisons Amendment Regulation (No. 7) 1995 (Qld)

Queensland Subordinate Legislation 1995 No. 370 Health Act 1937 POISONS AMENDMENT REGULATION (No. 7) 1995 TABLE OF PROVISIONS Section Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 Insertion of new div heading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Division 1—Authorities given to certain persons 4 Insertion of new pt D2, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Division 2—Application to chief health officer for authority D2.21 Application for authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 D2.22 How chief health officer may deal with application . . . . . . . . . . . . . 3 D2.23 Authorised person must comply with authority conditions . . . . . . . . 4 5 Replacement of pt D3 (Suspension) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 PART D3—SUSPENSION OR CANCELLATION OF AUTHORITY D3.01 Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 D3.02 Grounds for suspension or cancellation . . . . . . . . . . . . . . . . . . . . . . . 4 D3.03 Procedure for suspension or cancellation . . . . . . . . . . . . . . . . . . . . . . 5 D3.04 Procedure for urgent suspension or cancellation of authority . . . . . . 7 PART D4—OTHER PROVISIONS ABOUT AUTHORITIES D4.01 Return of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 D4.02 Amendment of authority by chief health officer . . . . . . . . . . . . . . . . 8 D4.03 Notice to return authority for alteration . . . . . . . . . . . . . . . . . . . . . . . 9

2 Poisons Amendment (No. 7) No. 370, 1995 PART 5—APPEALS D5.01 Decisions open to appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 D5.02 How to start an appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 D5.03 Stay of operation of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 D5.04 Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 D5.05 Powers of court on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 D5.06 Appeal to District Court on question of law only . . . . . . . . . . . . . . . 12

s1 3 s4 Poisons Amendment (No. 7) No. 370, 1995 ˙ Short title 1. This regulation may be cited as the Poisons Amendment Regulation (No. 7) 1995 . ˙ Regulation amended 2. This regulation amends the Poisons Regulation 1973 . ˙ Insertion of new div heading 3. Part D2, immediately before section D2.01— insert— ‘ Division 1—Authorities given to certain persons ’. ˙ Insertion of new pt D2, div 2 4. After section D2.20— insert— ‘ Division 2—Application to chief health officer for authority ˙ ‘ Application for authority ‘ D2.21. An application for an authority under this part must be made in the approved form (if any) and be accompanied by the appropriate fee. ˙ ‘ How chief health officer may deal with application ‘ D2.22.(1) The chief health officer must consider an application for an authority and either grant or refuse it. ‘ (2) If the chief health officer decides to grant the application, the chief health officer— (a) may issue an authority on reasonable conditions; and (b) must promptly issue and give the applicant an authority; and (c) if a condition is stated on the authority—must give the applicant a

s5 4 s5 Poisons Amendment (No. 7) No. 370, 1995 written notice stating— (i) the reasons for the condition; and (ii) that the applicant may appeal against the imposition of the condition within 28 days to a Magistrates Court. ‘ (3) If the chief health officer decides not to grant the application, the chief health officer must promptly give the applicant a written notice stating— (a) the decision; and (b) the reasons for the decision; and (c) that the applicant may appeal against the decision within 28 days to a Magistrates Court. ˙ ‘ Authorised person must comply with authority conditions ‘ D2.23. An authorised person must not contravene a condition of the authority. Maximum penalty—80 penalty units.’. ˙ Replacement of pt D3 (Suspension) 5. Part D3— omit, insert— ‘ PART D3—SUSPENSION OR CANCELLATION OF AUTHORITY ˙ ‘ Definition ‘ D3.01. In this part— “authorised person” means a person who has an authority under part D2. ˙ ‘ Grounds for suspension or cancellation ‘ D3.02.(1) Each of the following is a ground for the suspension or cancellation of an authority issued by the chief health officer—

s5 5 s5 Poisons Amendment (No. 7) No. 370, 1995 (a) the authority has been obtained on the basis of incorrect or misleading information; (b) the authorised person— (i) has been found guilty of an offence against the Act; or (ii) is unfit to hold the authority; or (iii) has contravened this regulation; (c) premises stated in the authority are unfit for use under the authority. ‘ (2) Each of the following is a ground for the suspension or cancellation of an authority given by part D2— (a) the authority has been obtained on the basis of incorrect or misleading information; (b) the authorised person— (i) has been found guilty of an offence against the Act; or (ii) is unfit to hold the authority; or (iii) has contravened this regulation. ˙ ‘ Procedure for suspension or cancellation ‘ D3.03.(1) If the chief health officer considers there is a ground to suspend or cancel an authority (the “proposed action” ), the chief health officer may give the authorised person a written notice that— (a) states the proposed action; and (b) states the grounds for the proposed action; and (c) outlines the facts and circumstances forming the basis for the grounds; and (d) if the proposed action is suspension of the authority—states the proposed suspension period; and (e) invites the authorised person to show within a stated time (at least 28 days) why the proposed action should not be taken. ‘ (2) If subsection (1) applies to an authority given by part D2, the notice

s5 6 s5 Poisons Amendment (No. 7) No. 370, 1995 may state that the proposed action only relates to a stated dangerous or restricted drug or a stated activity the authorised person may perform under this regulation. ‘ (3) If, after considering all written representations made within the stated time, the chief health officer still considers there is a ground to take the proposed action, the chief health officer may— (a) if the proposed action was to suspend the authority— (i) for a stated period—suspend the authority for not longer than the proposed suspension period; or (ii) for a stated dangerous or restricted drug—suspend the authority for the drug; or (iii) for a stated activity—suspend the authority for the stated activity; or (b) if the proposed action was to cancel the authority—either cancel the authority or suspend it for a period. ‘ (4) Within 10 days after the chief health officer makes a decision, the chief health officer must inform the authorised person of the decision by written notice. ‘ (5) If the chief health officer decides to suspend or cancel the authority, the notice must state— (a) the reasons for the decision; and (b) that the authorised person may appeal against the decision within 28 days to a Magistrates Court. ‘ (6) The decision takes effect on the later of— (a) the day the notice is given to the authorised person; or (b) the day of effect stated in the notice. ‘ (7) However, if the authority is suspended or cancelled because of the conviction of an authorised person for an offence— (a) the suspension or cancellation does not take effect until— (i) the end of the time to appeal against the conviction; and (ii) if an appeal is made against the conviction—the appeal is finally decided; and

s5 7 s5 Poisons Amendment (No. 7) No. 370, 1995 (b) the suspension or cancellation has no effect if the conviction is quashed. ˙ ‘ Procedure for urgent suspension or cancellation of authority ‘ D3.04.(1) This section applies if the chief health officer is satisfied— (a) urgent action is necessary in the particular circumstances; and (b) undue delay in suspending or cancelling a particular authority may cause harm to the public. ‘ (2) The chief health officer may suspend or cancel an authority without notice to the authorised person for a reason mentioned in subsection (1). ‘ (3) However, the chief health officer must immediately inform the person of the decision by written notice. ‘ (4) The notice must state— (a) the reasons for the decision; and (b) that the authorised person may appeal against the decision within 28 days to a Magistrates Court. ‘ (5) If subsection (1) applies to an authority given by part D2, the notice may state that the proposed action only relates to a stated dangerous or restricted drug or a stated activity the person may perform under part D2. ‘ (6) The decision takes effect on the later of— (a) the day the notice is given to the authorised person; or (b) the day of effect stated in the notice. ‘ PART D4—OTHER PROVISIONS ABOUT AUTHORITIES ˙ ‘ Return of authority ‘ D4.01.(1) This section applies if— (a) an authorised person has been issued an authority by the chief

s5 8 s5 Poisons Amendment (No. 7) No. 370, 1995 health officer; and (b) the authority is subsequently suspended or cancelled. ‘ (2) The authorised person must return the authority to the chief health officer within 14 days after the suspension or cancellation takes effect, unless the person has a reasonable excuse for not returning it within that time. Maximum penalty—20 penalty units. ‘ (3) It is a reasonable excuse for subsection (2) that the suspension or cancellation was for a particular dangerous or restricted drug and the authority remains in effect for other dangerous or restricted drugs. ‘ (4) If a suspended authority is returned to the chief health officer, the chief health officer must return it to the authorised person at the end of the suspension period. ˙ ‘ Amendment of authority by chief health officer ‘ D4.02.(1) If the chief health officer considers the conditions of an authority should be amended, the chief health officer must give the authorised person a written notice (the “show cause notice” ) that— (a) states the reasons for the amendment; and (b) outlines the facts and circumstances forming the basis for the reasons; and (c) invites the authorised person to show within a stated time (at least 28 days) why the conditions should not be amended or imposed. ‘ (2) If, after considering all representations made within the stated time, the chief health officer still believes the conditions should be amended, the chief health officer may amend the conditions— (a) in the way mentioned in the show cause notice; or (b) in another way, having regard to the representations. ‘ (3) If the chief health officer decides to amend the conditions, the chief health officer must give the authorised person a written notice stating— (a) how the conditions have been amended; and (b) that the authorised person may appeal against the decision within

s5 9 s5 Poisons Amendment (No. 7) No. 370, 1995 28 days to a Magistrates Court. ‘ (4) Subsections (1) to (3) do not apply if the conditions of an authority are to be amended only— (a) by omitting a condition; or (b) to correct an error; or (c) to make a change (other than a change of substance); or (d) in another way that does not adversely affect the authorised person’s interests. ‘ (5) The chief health officer may make an amendment of a type mentioned in subsection (3) by written notice given to the authorised person. ˙ ‘ Notice to return authority for alteration ‘ D4.03.(1) If an authorised person has been issued an authority by the chief health officer, the chief health officer may, by written notice, require the authorised person to return the authority to the chief health officer within a stated time (at least 14 days) to enable the chief health officer to amend the statement of conditions on the authority. ‘ (2) After amending the statement of conditions, the chief health officer must return the authority to the authorised person. ‘ (3) An authorised person must comply with a notice under subsection (1), unless the person has a reasonable excuse. Maximum penalty—20 penalty units. ‘ (4) The amendment of the conditions of the authority does not depend on the statement of conditions being amended under this section.

s 5 10 s 5 Poisons Amendment (No. 7) No. 370, 1995 ‘ PART 5—APPEALS ˙ ‘ Decisions open to appeal ‘ D5.01.(1) An applicant for an authority may appeal against the chief health officer’s decision to refuse to grant the application. ‘ (2) An authorised person may appeal against 1 of the following decisions of the chief health officer— (a) a decision to issue an authority on conditions; or (b) a decision to suspend or cancel an authority; or (c) a decision to amend an authority. ˙ ‘ How to start an appeal ‘ D5.02.(1) An appeal is started by filing a written notice of appeal with the clerk of the court of the Magistrates Court nearest the place where the appellant carries on business, works or lives. ‘ (2) The clerk of the court must give a copy of the notice to the chief health officer. ‘ (3) The notice of appeal must be filed within 28 days after the appellant receives written notice of the decision appealed against. ‘ (4) However, if— (a) the decision did not state the reasons for the decision; and (b) the person asked for a statement of reasons for the decision within the period mentioned in subsection (3); the person may make the application within 28 days after the person is given the statement of reasons. ‘ (5) In addition, the Magistrates Court may extend the period for filing the notice of appeal. ‘ (6) The notice of appeal must state fully the grounds of the appeal and the facts relied on.

s 5 11 s 5 Poisons Amendment (No. 7) No. 370, 1995 ˙ ‘ Stay of operation of decisions ‘ D5.03.(1) The Magistrates Court may grant a stay of a decision appealed against to secure the effectiveness of the appeal. ‘ (2) A stay— (a) may be given on conditions the court considers appropriate; and (b) operates for the period fixed by the court; and (c) may be revoked or amended by the court. ‘ (3) The period of a stay must not extend past the time when the court decides the appeal. ‘ (4) An appeal against a decision affects the decision, or carrying out of the decision, only if the decision is stayed. ˙ ‘ Hearing procedures ‘ D5.04.(1) The procedure for an appeal is to be— (a) under the rules of court applying to the appeal; or (b) if the rules make no provision or insufficient provision—under the directions of the Magistrates Court. ‘ (2) In deciding an appeal, the Magistrates Court— (a) is not bound by the rules of evidence; and (b) must observe natural justice; and (c) may hear the appeal in court or chambers. ‘ (3) An appeal is by way of rehearing, unaffected by the chief health officer’s decision. ˙ ‘ Powers of court on appeal ‘ D5.05.(1) In deciding an appeal, the Magistrates Court may— (a) confirm the decision appealed against; or (b) vary the decision; or (c) set aside the decision and make a decision in substitution for the

s 5 12 s 5 Poisons Amendment (No. 7) No. 370, 1995 decision set aside; or (d) set the decision aside and return the issue to the chief health officer with directions the court considers appropriate. ‘ (2) In varying a decision or substituting another decision, the court has the same powers as the chief health officer. Example— The court may decide that an authority should be suspended on conditions instead of cancelling the authority. ‘ (3) If, on appeal, the court acts under subsection (1)(b) or (c), the decision is taken, for this regulation (other than this division), to be the decision of the chief health officer. ˙ ‘ Appeal to District Court on question of law only ‘ D5.06. A party dissatisfied by the decision of a Magistrates Court on an appeal may appeal to a District Court, but only on a question of law.’. ENDNOTES 1. Made by the Governor in Council on 14 December 1995. 2. Notified in the gazette on 15 December 1995. 3. Laid before the Legislative Assembly on . . . 4. The administering agency is the Department of Health. © State of Queensland 1995