Untitled document

Drugs, Poisons and Controlled Substances

(Amendment) Act 1997

Act No. 54/1997

TABLE OF PROVISIONS

Section Page

1.	Purposes	1
2.	Commencement	2
3.	Principal Act	2
4.	New section 4A—exempt products	2

4A. Act does not apply to certain processed products 2

5.	New Part IVA inserted	3
PART IVA—AUTHORITIES FOR LOW-THC CANNABIS	3
Division 1—Authorities for low-THC cannabis	3

61.	Definitions	3
62.	Application for authority to cultivate and process low-
THC cannabis	6
63.	Secretary must investigate application	7
64.	Matters to be considered in determining applications	7
65.	Determination of applications	9
66.	Terms and conditions of authorities	9
67.	Renewal of authorities	10
68.	Authority not transferable	11
69.	Amendment of authorities	11
69A.	Suspension or cancellation	11
69B.	Review by AAT	12
69C.	Offence to fail to comply with authority	12
69D.	Catchment and Land Protection Act does not apply	12

Division 2—Inspection and enforcement 13

69E.	Inspectors under this Part	13
69F.	General powers of inspectors	14
69G.	Inspector may order harvest or treatment	15
69H.	Inspector has power to detain or seize	15
69I.	What happens if an inspector detains or seizes plants,
crops or products?	15
69J.	Appeal to Secretary if disposal or destruction ordered	17
69K.	Offences relating to inspector's exercise of power	18
69L.	Inspector may possess cannabis for purposes of this Part	18

i

Section Page

Division 3—Regulations under this Part	18
69M. Regulations	18

6. Consequential amendments to Principal Act 20

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NOTES 22

ii

Victoria

No. 54 of 1997

Drugs, Poisons and Controlled

Substances (Amendment) Act 1997†

[Assented to 21 October 1997]

The Parliament of Victoria enacts as follows:

1. Purposes

The main purposes of this Act are—

(a)	to make provision for the issuing of authorities to grow and process low-THC cannabis for commercial and research purposes relating to non-therapeutic use;
(b)	to exempt certain processed products made from cannabis from the operation of the

Drugs, Poisons and Controlled Substances (Amendment) Act
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Act No. 54/1997 s. 2

Drugs, Poisons and Controlled Substances

Act 1981.

2. Commencement

(1) Subject to sub-section (2), this Act comes into
operation on the day it receives the Royal Assent.
(2) Subject to sub-section (3), sections 5 and 6 come

into operation on a day or days to be proclaimed.

(3) If a provision referred to in sub-section (2) does

not come into operation before 30 November

1998, it comes into operation on that day.

3. Principal Act

In this Act, the Drugs, Poisons and Controlled	No. 9719. Reprinted to
Substances Act 1981 is called the Principal Act.	No. 52/1994 and subsequently amended by Nos 66/1995, 56/1996 and 68/1996.

4. New section 4A—exempt products

After section 4 of the Principal Act insert— '4A. Act does not apply to certain processed

products

(1) This Act does not apply to—

(a) a processed fibre product made from cannabis if the product—

(i)  does not contain more than 0·1 per cent of tetrahydrocannabinol; and

(ii)  does not contain whole cannabis seeds; and

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(iii)

is in a form not suitable for purposes; or

(b) a processed product made from cannabis seeds if the product—

(i)  does not contain more than 0·001 per cent of tetrahydrocannabinol; and

(ii)  does not contain whole cannabis seeds.

(2) In this section—

"cannabis" means a plant or any part of a

plant of the genus Cannabis L, whether
fresh or dried;

"processed" means treated by mechanical, chemical or other artificial means but does not include—

(a) harvesting; or

(b) the natural process of decay.'.

5. New Part IVA inserted

After Part IV of the Principal Act insert—

'PART IVA—AUTHORITIES FOR LOW-THC

CANNABIS

Division 1—Authorities for low-THC cannabis
61. Definitions
(1) In this Part—

"authority" means an authority issued under section 65;

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"cannabis" means a plant or any part of a

plant of the genus Cannabis L, whether
fresh or dried;

"inspector" means—

(a) a person authorised as an inspector under section 69E; or

(b) a member of the police force;

"low-THC cannabis" means cannabis, the

leaves and flowering heads of which do
not contain more than 0·35 per cent of
tetrahydrocannabinol;

"Secretary" means the body corporate

established under Part 2 of the
Conservation, Forests and Lands Act
1987;

"serious offence" means an indictable

offence involving dishonesty, fraud or
cultivation or trafficking in drugs of
dependence where the maximum
penalty exceeds 3 months
imprisonment.

(2) For the purposes of section 64, a person is an

associate of an applicant for an authority if
the person—

(a) holds or will hold any relevant financial interest, or is or will be 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 to which the authority relates, and by virtue of that interest or power, is able or will be able to exercise a significant influence over or with respect to the management or operation

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of the business to which the authority relates; or

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

(c) is a relative of the applicant.

(3) In sub-section (2)—

"relative" means spouse (including de facto

spouse), parent, child or sibling
(whether of the full or half blood);

"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 business;

"relevant position", in relation to a business, means the position of director, manager or other executive

position or secretary, however that
position is designated;

"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, or

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

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62.  Application for authority to cultivate and process low-THC cannabis

(1) A person may apply to the Secretary for an

authority authorising that person, for
commercial or research purposes relating to
non-therapeutic use—

(a)	to possess, process, sell or supply cannabis seed which has been harvested from low-THC cannabis; or
(b)	to cultivate and possess cannabis from seed which has been harvested from low-THC cannabis; or
(c)	to possess, process, sell or supply cannabis which—

(i)  is substantially free of leaves and flowering heads; and

(ii) does not contain
tetrahydrocannabinol in excess of
0·1 per cent.

(2) An application under sub-section (1) must—

(a) be in writing; and

(b) be accompanied by the prescribed application fee.

(3) An application under sub-section (1) must contain or be accompanied by evidence to the satisfaction of the Secretary that—

(a)	the applicant is a fit and proper person to be given an authority;
(b)	fide research or commercial activity relating to the non-therapeutic use of

the applicant intends to undertake bona including—

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(i) that the research would be
conducted by a person with

in the case of research, evidence using appropriate methodology; or

(ii)

in the case of commercial activity, activity to be carried out.

(4) An applicant must provide any other

information about the applicant or the
application which the Secretary reasonably

requires.

63. Secretary must investigate application
(1) On receiving an application under section

62, the Secretary must cause to be carried out all investigations and inquiries that the Secretary considers necessary to properly determine the application.

(2) The Secretary may refer a copy of an

application and any supporting
documentation to the Chief Commissioner of

Police.

(3) The Chief Commissioner of Police must

inquire into and report to the Secretary on
any matters concerning the application that
the Secretary requests.

64.  Matters to be considered in determining applications

(1) In order to prevent criminal activity in the

cultivation and processing of low-THC
cannabis, the Secretary must not issue an
authority to an applicant unless the Secretary
is satisfied that—

(a) the applicant or any associate of the applicant has within the 10 years

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preceding the application not been found guilty of a serious offence; and

(b)	the applicant and each associate of the applicant is a suitable person to be concerned in or associated with the cultivation, processing, sale or supply of low-THC cannabis; and
(c)	be suitable for the cultivation, processing, sale or supply of low-THC cannabis in relation to location,

the applicant's property or premises will arrangements.

(2) In particular, the Secretary may consider

whether—

(a)	the applicant and each associate of the applicant is of good repute, having regard to character, honesty and integrity;
(b)	in the case of an applicant that is not a natural person, the applicant has a satisfactory ownership, trust or corporate structure;
(c)	the applicant is of sound and stable financial background;
(d)	the applicant has any business association with any person or body who or which, in the opinion of the Secretary, is not of good repute, having regard to character, honesty and integrity;
(e)

each director, partner, trustee, executive person determined by the Secretary to be associated or connected with the

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ownership, administration or management of the operations or business of the applicant is a suitable person to act in that capacity.

65. Determination of applications

(1) After considering an application and any

investigation under section 63, the Secretary
must determine an application by—
(a) issuing an authority; or
(b) refusing to issue an authority.

(2) The Secretary must notify the applicant in writing of the decision under sub-section (1).

66. Terms and conditions of authorities

(1) An authority is issued for the term, not

exceeding 3 years, specified in the authority
unless it is sooner suspended or cancelled.

(2) An authority relates only to the premises or site described in it.

(3) An authority is subject to the terms,

conditions, limitations and restrictions
specified in it including, but not limited to,
terms, conditions, limitations and restrictions

relating to—

(a)	the premises or site at which the activities authorised by the authority may be carried out;
(b)	the authentication of the varietal identity and tetrahydrocannabinol

the source of seed for sowing, including was harvested;

(c) the implementation and maintenance of satisfactory security and surveillance

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measures to restrict access of unauthorised persons to crops and harvested material;

(d)	the keeping of records and other documents;
(e)

the provision of information, records or relating to—

(i)  the activities carried out under the authority; or

(ii) director, manager, secretary or
other executive position, however
designated or the structure of the

a change in the position of relates; or

(iii)  any other matter that the Secretary reasonably requires;

(f)	the disposal of harvested material and crop residue;
(g)	inspection, supervision and surveillance of seed, plants, crops, harvested material and products by inspectors.

67. Renewal of authorities

(1) An application for renewal of an authority—

(a)	may be made up to one month before the expiry of the current authority; and
(b)	must be in writing and accompanied by the prescribed fee.

(2) On receiving an application under sub-

section (1), the Secretary, in the Secretary's
discretion, may renew the authority.

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(3) A renewed authority lasts for the same

period as the previous authority.

68.

Authority not transferable person.

69. Amendment of authorities

(1) The Secretary may, in the Secretary's

discretion—

(a)

amend any terms, conditions, authority is subject; or

(b) impose new terms, conditions, limitations or restrictions on an authority.

(2) An amendment under sub-section (1) must

be notified in writing to the holder of the
authority.

69A. Suspension or cancellation

(1) The Secretary may, by notice in writing to

the holder of an authority, suspend or cancel
an authority if—

(a)	the holder requests suspension or cancellation; or
(b)

the holder has not complied with the restrictions of the authority; or

(c)	the holder has failed to comply with this Act or regulations; or
(d)	the Secretary is satisfied that the holder is no longer a fit and proper person to hold the authority; or

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(e) obtained the authority by fraud,

the Secretary is satisfied that the holder facts; or

(f) the holder ceases to carry on the research or commercial activity to which the authority relates.

(2) If an authority is suspended or cancelled

under sub-section (1), it ceases to be of
effect and any document issued to the former
holder must be surrendered to the Secretary
on demand.

69B. Review by AAT

A person may apply to the Administrative of the Secretary—

(a)	to refuse to issue an authority to that person; or
(b)	to refuse to renew an authority held by that person; or
(c)	to suspend, cancel or amend an authority held by that person.

69C. Offence to fail to comply with authority

A person who is the holder of an authority
under this Part must comply with the terms,
conditions, limitations or restrictions to
which that authority is subject.

Penalty: 100 penalty units.

69D. Catchment and Land Protection Act does

not apply

Despite anything to the contrary in the
Catchment and Land Protection Act 1994,
Part 8 of that Act does not apply to the

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processing, cultivation, possession, sale or supply of low-THC cannabis in accordance with an authority under this Part.

Division 2—Inspection and enforcement

69E. Inspectors under this Part

(1) The Secretary, by instrument, may authorise the following persons to be inspectors for the purposes of all or any of the provisions of

this Part—

(a)	any person holding a position under the Public Sector Management Act 1992; or
(b)	any other appropriately qualified person.

(2) The Secretary may determine the terms and
conditions of authorisation of inspectors.
(3) The Secretary may, in writing, revoke the
authorisation of an inspector at any time.

(4) The terms and conditions of authorisation

may contain general directions as to how the
inspector's powers may be exercised.

(5) The Secretary must issue an identification certificate to each inspector (other than an inspector who is a member of the police

(6) An inspector, in the course of performing his	force) which sets out the provisions of this be an inspector.
or her functions under this Part, must produce his or her identification certificate to any person who requests its production.

(7) In this Division, a reference to an

identification certificate in relation to an

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inspector who is a member of the police
force is a reference to written evidence of the
fact that he or she is a member of the police

force.

69F. General powers of inspectors

(1) For the purposes of determining compliance

with this Part or an authority, an inspector
may, with such assistance as he or she thinks
necessary, at any reasonable time—

(a) enter and inspect any place, other than premises used as a residence, occupied by any person who is the holder of an

authority;

(b)	inspect, count, examine or mark for identification any product, plant or crop in the place;
(c)	document that the inspector reasonably

require a person to produce any Part or an authority is being complied with and—

(i) examine the document; and

(ii)  make copies of it or take extracts from it; and

(iii)  remove the document for as long as is reasonably necessary to make copies or take extracts;

(d) take or remove for examination samples of or from, or specimens of, any plant of a crop or product to determine—

(i)  the tetrahydrocannabinol content of that plant, crop or product; and

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(ii) been cultivated or processed in
accordance with the authority or

that the plant, crop or product has accordance with the authority;

(e)

submit any sample or specimen taken in laboratory or place approved by the Secretary for examination and testing.

(2) An inspector may not exercise any powers

under this Part if the inspector fails, on
request, to produce his or her identification
certificate for inspection by the occupier of
the place or the person in charge or apparent
control of the place.

69G. Inspector may order harvest or treatment

(1) If an inspector is satisfied on reasonable

grounds that any plant or crop contravenes this Part or an authority, the inspector may order the harvest of the plant or crop and the

treatment of that harvested material.

(2) An order under sub-section (1) must—

(a) be in writing; and

(b) include a statement of the reasons for ordering the harvest and treatment; and

(c) be given to the holder of the authority.

69H. Inspector has power to detain or seize

If an inspector believes that any plant, crop or product contravenes this Part or an authority, the inspector may detain or seize the plant, crop or product and deal with it in accordance with section 69I.

69I. What happens if an inspector detains or seizes plants, crops or products?

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(1) If an inspector detains or seizes any plant,

crop or product, the inspector must
immediately—

(a)	give notice in writing of the detention or seizure including a statement of the reasons for detaining or seizing the
plant, crop or product to the holder of the authority; and
(b)	take or send to a laboratory or place approved by the Secretary for examination and testing, the plant, crop or product or a sample of the plant, crop or product.

(2) A person must not remove the whole or any part of a plant, crop or product detained or seized while the detention or seizure notice remains in force, except on the written

authority or written direction of an inspector
or the Secretary.

Penalty: 50 penalty units.

(3) If the results of the examination or test of the

sub-section (1)(b) show that the plant, crop
or product was not in contravention of this

samples taken or sent in accordance with immediately release or return the plant, crop or product to the holder of the authority.

(4) If the results of the examination or test of the

samples taken or sent in accordance with
sub-section (1)(b) show that the plant, crop
or product was in contravention of this Part
or the authority, the inspector must—

(a) inform the holder of the authority or the person in whose possession the plant,

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crop or product was found (as the case may be) in writing of the results; and

(b) arrange for or order the harvest, disposal or destruction of the plant, crop or product.

(5) If an arrangement or order is made for the disposal or destruction of a plant, crop or product under sub-section (4)(b), the

inspector must give notice of that
arrangement or order before that disposal or

destruction takes place.

(6) A notice under sub-section (5) must—

(a) be in writing; and

(b)	include a statement of the reasons for arranging or ordering the disposal or destruction; and
(c)	fix a time for the disposal or destruction; and

(d) be given to the holder of the authority.

(7) Nothing in this section limits the power of a

member of the police force to take legal
proceedings in respect of any plant, crop or
product found not to comply with this Part or

an authority.

69J. Appeal to Secretary if disposal or

destruction ordered

(1) Within 48 hours of receiving a notice under

section 69I(5), the holder of an authority
may lodge an appeal in writing against the
disposal or destruction with the Secretary.

(2) Within 3 business days after an appeal is

lodged under sub-section (1), the Secretary
must determine the appeal by—

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(a)	cancelling the arrangement or order made by the inspector under section 69I; or
(b)	confirming the arrangement or order made by the inspector under section 69I.

(3) The Secretary must notify the holder of the

authority in writing of the determination
made under sub-section (2).

69K. Offences relating to inspector's exercise of

power

(1) A person must not, without reasonable

excuse, hinder or obstruct an inspector in the
exercise of a power under this Part.

Penalty: 100 penalty units.

(2) A person must not, without reasonable

excuse, fail to comply with the direction,
requirement or order of an inspector.

Penalty: 100 penalty units.

69L. Inspector may possess cannabis for

purposes of this Part

An inspector is authorised to have cannabis in his or her possession in the exercise or performance of any power, function or duty conferred on him or her by this Part or the regulations made under this Part.

Division 3—Regulations under this Part

69M. Regulations

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Act No. 54/1997

(1) The Governor in Council may make

regulations for or with respect to—

(a)	fees for applications and renewals for the purposes of this Part;
(b)

authorising and requiring inspectors to amounts or rates as are prescribed or determined in the manner prescribed for—

(i)	sampling and testing cannabis plants and crops grown or products produced in accordance with this Part as required under an authority or to determine the tetrahydrocannabinol content of those plants, crops or products;
(ii)	supervising the harvesting, disposal or destruction of cannabis plants, crops or products;
(iii)	carrying out inspections, supervision or surveillance of cannabis plants or crops grown or products produced in accordance with this Part to ensure that the terms, conditions, limitations and restrictions of an authority are being complied with;
(iv)	respect of cannabis plants or crops

providing any other service in accordance with this Part;

(c) generally prescribing any other matter or thing required or permitted by this Part to be prescribed or necessary to be prescribed to give effect to this Part.

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(2) Regulations made under this Part may—

(a) be of general or limited application;

(b)	differ according to differences in time, place or circumstance;
(c)	provide for different fees for different activities or classes of activity or different cases or classes of cases;
(d)

provide for specific, minimum or fees;

(e)	provide for the waiver or reduction of fees;
(g)	in the case of applications for the issue or renewal of authorities, specify fees that reflect the cost of administration of, and the provision of inspection and other services in connection with this Part;
(h)	leave any matter to be approved or determined by the Secretary or an inspector.'.

6. Consequential amendments to Principal Act

In the Principal Act—

(a)

in section 49, after "or permit under this Act" this Act";

(b)	in section 118(1), after "or 56" insert "or authorities under Part IVA";
(c)	in section 119, after paragraph (e), insert— "(ea) a certificate that any person is or is not

or was or was not on a certain date or
for a certain period a holder of an
authority under Part IVA, if purporting

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to be signed by the Secretary of the Department of Natural Resources and Environment, shall be prima facie evidence of the facts therein stated;".

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Act No. 54/1997 Notes

NOTES

†

Minister's second reading speech—

Legislative Assembly: 23 April 1997

Legislative Council: 8 October 1997

The long title for the Bill for this Act was "to amend the Drugs, Poisons
and Controlled Substances Act 1981 to exempt certain processed
products from the operation of that Act, to authorise the cultivation and
processing of low-THC cannabis for certain commercial and research
purposes and for other purposes."