Untitled document
Drugs, Poisons and Controlled Substances (Poppy Cultivation and Processing) Amendment Act 2014
No. 13 of 2014
TABLE OF PROVISIONS
Section Page
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 licence69PFEmployee 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
devices69RFInspector must not damage equipment
69RGInspector may possess alkaloid poppies or poppy
straw69RHInspector has power to detain or seize alkaloid
poppies or poppy straw69RIProcedure on detaining or seizing alkaloid poppies
or poppy straw69RJSecretary has power to dispose or deal with seized alkaloid poppies or poppy straw
69RKRetention and return of seized alkaloid poppies or
poppy straw69RLMagistrates' Court may extend 3 month period
69RMForfeiture, harvest and destruction of alkaloid poppies
or poppy straw69RNRecovery 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 contract69SAOffence to fail to report amendment or cancellation
69SBOffence to fail to report on any change of details of
the licensed grower or the licensed processor69SCOffence 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 licence69SJCriminal liability of licensed grower or licensed processor—failure to exercise due diligence
69SKOffence to fail to provide an identification certificate
for employees69SLOffence 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 information69UAReview by VCAT
69UBVCAT to inquire on grounds for refusal
69UCAppointment of special counsel
69UDProcedure for hearing—protected information
69UEDecision of VCAT where protected information
exists69UFGeneral 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
Drugs, Poisons and Controlled Substances (Poppy Cultivation and Processing) Amendment Act 2014
No. 13 of 2014
[Assented to 18 March 2014]
The Parliament of Victoria enacts:
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.
(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
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
After Part IVA of the Principal Act insert—
"PART IVB—LICENCES TO 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)Papaver bracteatum Lindley; or
(b)Papaver somniferum 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 manufacture means 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 has the same meaning as it has in section 70;
detention or seizure receipt means a receipt given in accordance with section 69RC or 69RI;
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
(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 69OF or by a licensed processor under section 69PF;
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 section 69RA;
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
(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
(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
(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 2008 with the applicant or the licence holder; or
(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) and in 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;
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 applicant unless the Secretary is satisfied that—
(a)the applicant or any associate of the applicant has 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 applicant and each associate of the applicant is 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
(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
(iv)the licensed processor meets 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 processor is of good repute, having regard to character, honesty and integrity; and
(b)the applicant, the licensed grower or the licensed processor or any associate of the applicant, the licensed grower or the licensed processor has a history of non-compliance with the Act; and
(c)in the case of an application for a licence, the applicant or any associate of the applicant has 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 3 years 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
(f)in the case of an applicant, a licensed grower or a licensed processor that is not a natural person, the applicant, the licensed grower or the licensed processor has a satisfactory ownership, trust or corporate structure; and
(g)the applicant, the licensed grower or the licensed processor is 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—
(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
(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 non‑therapeutic 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 section 69O the Secretary—
(a)must carry out all investigations and inquiries that the Secretary considers necessary to determine the application; and
(b)may conduct an inspection of the premises that are to be specified in the relevant licence; and
(c)may require that an applicant or any associate of the applicant submit to the Secretary a recent police record check of the applicant or any associate of the applicant.
(2)The Secretary must provide a copy of an application made under section 69O and any accompanying documents to the Chief Commissioner of Police.
(3)The Chief Commissioner of Police must—
(a)inquire into and report to the Secretary on any matters concerning the application that he or she believes are appropriate or reasonably necessary; and
(b)inquire into and report to the Secretary on any matters concerning the application that the Secretary requests; and
(c)within 28 days of receiving the application from the Secretary, notify the Secretary in writing of the Chief Commissioner of Police's decision to support or oppose the issuing of a licence and provide the reasons for the decision.
(4)If the Secretary is notified under subsection (3)(c) that the Chief Commissioner of Police opposes the issuing of a poppy cultivation licence, the Secretary must not issue the licence.
69OBDetermining an application
(1)After considering an application and any investigation under section 69OA, the Secretary must determine the application within 60 days of receiving the application.
(2)The Secretary may issue a poppy cultivation licence to an applicant under section 69O(1) or (2).
(3)The Secretary may refuse to issue a poppy cultivation licence to an applicant under section 69O(1) or (2).
(4)The Secretary must—
(a)notify the applicant in writing of the decision under subsection (2); and
(b)if the Secretary refuses an application under subsection (3), provide reasons for the decision.
69OCTerms and conditions of a poppy cultivation licence
(1)A poppy cultivation licence is issued for the term, not exceeding 3 years, specified in the licence unless it is sooner suspended or cancelled.
(2)A poppy cultivation licence relates only to the specified premises described in it.
(3)A poppy cultivation licence is subject to the condition that the licensed grower must only employ persons that are suitable to carry out activities under the licence.
(4)A poppy cultivation licence is subject to the condition that a licensed grower must comply with the risk management plan under the licence.
(5)A poppy cultivation licence is subject to the prescribed terms, conditions, limitations and restrictions (if any).
(6)A poppy cultivation licence is subject to the terms, conditions, limitations and restrictions specified in it including, but not limited to, terms, conditions, limitations and restrictions relating to the following—
(a)the species, subspecies or varieties of alkaloid poppy to be cultivated; or
(b)the specified premises at which activities authorised under the licence may be carried out; or
(c)the implementation and maintenance of satisfactory security and surveillance measures to restrict access of unauthorised persons to crops and harvested material; or
(d)the keeping of records and other documents; or
(e)the provision of information, records or other documents to the Secretary relating to—
(i)the activities carried out under the licence; or
(ii)a change in the position of director, manager, secretary or other executive position, however designated, or the structure of the business to which the licence relates; or
(iii)any other matter that the Secretary reasonably requires in relation to the licence or the licensed activity; or
(f)the disposal of harvested material and crop residue; or
(g)the inspection, sampling, supervision and surveillance of seed of alkaloid poppies, alkaloid poppies and poppy straw by an inspector; or
(h)the destruction of alkaloid poppies, poppy straw and any material derived from alkaloid poppies.
(7)A poppy cultivation licence issued under section 69O(1) is subject to the condition that unless otherwise with the approval of the Secretary, the licensed grower whilst carrying out an activity under the licence must have a contract with a licensed processor for the processing of alkaloid poppies cultivated under the licence that is registered in the alkaloid poppy register.
69ODPoppy cultivation licence is not transferable
A poppy cultivation licence is not transferable to another person.
69OEEmployee of licensed grower authorised to undertake activities under licence
(1)For the purposes of this Act, an employee of a licensed grower who holds a poppy cultivation licence for commercial purposes relating to therapeutic use, is authorised to carry out any activity under the licence involving the cultivation or possession of alkaloid poppies or the sale or supply of poppy straw to a licensed processor required of the employee in the course of his or her employment.
(2)For the purposes of this Act, an employee of a licensed grower who holds a poppy cultivation licence for research purposes relating to non-therapeutic use, is authorised to carry out any activity under the licence, including the following, that is required of the employee in the course of his or her employment—
(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 employee must only undertake an activity authorised under subsection (1) or (2) in relation to his or her employment.
69OFEmployee identification certificate issued by licensed grower
(1)The licensed grower must issue an employee identification certificate to each employee that is employed to carry out activities in the business conducted by a licensed grower under a poppy cultivation licence.
(2)The employee identification certificate must contain the following information—
(a)the employee's name;
(b)a clear photograph of the employee;
(c)the employee's date of birth;
(d)the expiry date of the employee identification certificate;
(e)the poppy cultivation licence under which the employee is authorised to carry out activities required of the employee in the course of his or her employment;
(f)the prescribed information (if any).
69OGApplication for renewal of licence
(1)A licensed grower may apply to the Secretary for the renewal of a poppy cultivation licence.
(2)A renewal application must be made to the Secretary at least 2 months before the poppy cultivation licence is due to expire.
(3)A renewal application must—
(a)be in writing; and
(b)be accompanied by any information relevant to whether or not the licensed grower is a fit and proper person; and
(c)be accompanied by the current risk management plan under the poppy cultivation licence; and
(d)be accompanied by the relevant prescribed renewal fee (if any); and
(e)be accompanied by any other information the Secretary reasonably requires to assess the application; and
(f)contain any prescribed particulars.
(4)A poppy cultivation licence may be renewed more than once.
69OHSecretary must investigate renewal application
(1)On receipt of a renewal application under section 69OG the Secretary—
(a)must carry out any investigation or inquiry necessary to determine the renewal application; and
(b)may conduct an inspection of the specified premises of the poppy cultivation licence; and
(c)may require that an applicant or any associate of the applicant submit to the Secretary a recent police record check of the applicant or any associate of the applicant.
(2)The Secretary must provide a copy of a renewal application made under section 69OG and any accompanying documents to the Chief Commissioner of Police.
(3)The Chief Commissioner of Police must—
(a)inquire into and report to the Secretary on any matters concerning the application that the Chief Commissioner of Police believes are appropriate or reasonably necessary; and
(b)inquire into and report to the Secretary on any matters concerning the renewal application that the Secretary requests; and
(c)within 28 days of receiving the application from the Secretary notify the Secretary in writing of the Chief Commissioner of Police's decision to support or oppose the renewal of a licence and provide the reasons for the decision.
(4)If the Secretary is notified under subsection (3)(c) that the Chief Commissioner of Police opposes the renewal of a poppy cultivation licence the Secretary must not renew the relevant licence.
69OIDetermining a renewal application
(1)After considering a renewal application and any investigation under section 69OH, the Secretary must determine the renewal application within 60 days of receiving it.
(2)The Secretary may renew a poppy cultivation licence for a period not exceeding 3 years.
(3)The Secretary may refuse to renew a poppy cultivation licence of a licensed grower.
(4)A renewed poppy cultivation licence expires on the date specified by the Secretary, unless the licence is cancelled or suspended prior to the expiry.
(5)The Secretary must—
(a)notify the applicant in writing of the decision under subsection (2); and
(b)if the Secretary refuses to renew the poppy cultivation licence under subsection (3), provide reasons for the decision.
Division 3—Poppy processing licence
69PApplication for poppy processing licence
(1)A person may apply to the Secretary for a poppy processing licence which authorises a person for commercial purposes relating to therapeutic use—
(a)to receive poppy straw from a licensed grower or from a licensed processor or a person authorised to possess and supply alkaloid poppies in another jurisdiction; and
(b)to process and possess poppy straw at premises specified in the licence; and
(c)to transport, sell or supply poppy straw to a person who possesses a Commonwealth licence to manufacture; and
(d)to transport, sell or supply poppy straw if the applicant possesses a Commonwealth licence to export; and
(e)to transport, sell or supply poppy straw to a person who possesses a Commonwealth licence to export.
(2)A person may apply to the Secretary for a poppy processing licence which authorises a person for research purposes relating to non-therapeutic use—
(a)to receive or process poppy straw at premises specified in the licence; and
(b)to possess, transport, sell or supply 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; and
(e)in the case of an application under subsection (1), be accompanied by a copy of a Commonwealth licence to manufacture or a Commonwealth licence to export, as the case requires.
(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 issued a licence; and
(b)in the case of an application under subsection (1), intends to undertake a bona fide commercial activity relating to the therapeutic use of poppy straw including evidence of the commercial activity to be carried out; and
(c)in the case of an application under subsection (2), intends to undertake a research activity relating to the non-therapeutic use of poppy straw under the licence including evidence that the research activity would be conducted by a person with appropriate scientific training using 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.
69PASecretary must investigate application
(1)On receiving an application under section 69P, the Secretary—
(a)must carry out all investigations and inquiries that the Secretary considers necessary to determine the application; and
(b)may conduct an inspection of the premises that are to be specified in the relevant licence; and
(c)may require that an applicant or any associate of the applicant submit to the Secretary a recent police record check of the applicant or any associate of the applicant.
(2)The Secretary must provide a copy of an application made under section 69P and any accompanying documents to the Chief Commissioner of Police.
(3)The Chief Commissioner of Police must—
(a)inquire into and report to the Secretary on any matters concerning the application that the Chief Commissioner of Police believes are appropriate or reasonably necessary; and
(b)inquire into and report to the Secretary on any matters concerning the application that the Secretary requests; and
(c)within 28 days of receiving the application from the Secretary, notify the Secretary in writing of the Chief Commissioner of Police's decision to support or oppose the issuing of a licence and provide the reasons for the decision.
(4)If the Secretary is notified under subsection (3)(c) that the Chief Commissioner of Police opposes the issuing of a poppy processing licence, the Secretary must not issue the licence.
69PBDetermining an application
(1)After considering an application and any investigation under section 69PA, the Secretary must determine the application within 60 days of receiving the application.
(2)The Secretary may issue a poppy processing licence to an applicant under section 69P(1) or (2).
(3)The Secretary may refuse to issue a poppy processing licence to an applicant under section 69P(1) or (2).
(4)The Secretary must—
(a)notify the applicant in writing of the decision under subsection (2); and
(b)if the Secretary refuses an application under subsection (3), provide reasons for the decision.
69PCTerms and conditions of a poppy processing licence
(1)A poppy processing licence is issued for the term, not exceeding 12 months, specified in the licence unless it is sooner suspended or cancelled.
(2)A poppy processing licence relates only to the premises specified in it.
(3)A poppy processing licence must specify the maximum quantity of alkaloid poppies that may be processed by a licensed processor.
(4)A poppy processing licence is subject to the condition that a licensed processor must comply with the risk management plan under the licence.
(5)A poppy processing licence is subject to the condition that the licensed processor must only employ persons that are suitable to carry out activities under the licence.
(6)A poppy processing licence is subject to the prescribed terms, conditions, limitations and restrictions (if any).
(7)A poppy processing licence is subject to the terms, conditions, limitations and restrictions that are specified in it including, but not limited to, terms, conditions, limitations and restrictions relating to the following—
(a)the specified premises at which the activities authorised by the licence may be carried out; or
(b)the implementation and maintenance of satisfactory security and surveillance measures to restrict access of unauthorised persons to poppy straw; or
(c)the keeping of records and other documents; or
(d)the provision of information, records or other documents to the Secretary relating to—
(i)the activities carried out under the licence; or
(ii)a change in the position of director, manager, secretary or other executive position, however designated, or the structure of the business to which the licence relates; or
(iii)any other matter that the Secretary reasonably requires in relation to the licence or the licensed activity; or
(e)the disposal of poppy straw; or
(f)the inspection, supervision and surveillance of poppy straw by an inspector.
(8)A poppy processing licence referred to in section 69P(1) is subject to the condition that the licensed processor must hold a current Commonwealth licence to manufacture or a current Commonwealth licence to export whilst undertaking an activity authorised by the licence.
69PDPoppy processing licence is not transferable
A poppy processing licence is not transferable to another person.
69PEEmployee of licensed processor authorised to undertake activities under licence
(1)For the purposes of this Act, an employee of a licensed processor who holds a poppy processing licence for commercial purposes relating to therapeutic use, is authorised to carry out any of the following activities under the licence that is required of the employee in the course of his or her employment—
(a)to receive poppy straw from a licensed grower or a person authorised to possess alkaloid poppies in another jurisdiction; and
(b)to process and possess poppy straw at specified premises; and
(c)to transport, sell or supply poppy straw to a person who possesses a Commonwealth licence to manufacture; and
(d)to export poppy straw if the applicant possesses a Commonwealth licence to export.
(2)For the purposes of this Act, an employee of a licensed processor who holds a poppy processing licence for research purposes relating to non-therapeutic use, is authorised to carry out any activity under the licence involving the processing, possession, transportation of poppy straw or the sale or supply of poppy straw to a licensed processor that is required of the employee in the course of his or her employment.
(3)An employee must only undertake an activity authorised under subsection (1) or (2) in relation to his or her employment.
69PFEmployee identification certificate issued by licensed processor
(1)The licensed processor must issue an employee identification certificate to each employee that is employed to carry out activities in the business conducted by a licensed processor under a poppy processing licence.
(2)The employee identification certificate must contain the following information—
(a)the employee's name;
(b)a clear photograph of the employee;
(c)the employee's date of birth;
(d)the expiry date of the employee identification certificate;
(e)the poppy processing licence under which the employee is authorised to carry out activities required of the employee in the course of his or her employment;
(f)the prescribed information (if any).
69PGApplication for renewal of licence
(1)A licensed processor may apply to the Secretary for the renewal of a poppy processing licence.
(2)A renewal application must be made to the Secretary at least 2 months before the poppy processing licence is due to expire.
(3)A renewal application must—
(a)be in writing; and
(b)be accompanied by any information relevant to whether or not the licensed processor is a fit and proper person; and
(c)be accompanied by the current risk management plan under the poppy processing licence; and
(d)be accompanied by a copy of the licensed processor's current Commonwealth licence to manufacture or current Commonwealth licence to export; and
(e)be accompanied by the relevant prescribed renewal fee (if any); and
(f)be accompanied by any other information the Secretary reasonably requires to assess the application; and
(g)contain any prescribed particulars.
(4)A poppy processing licence may be renewed more than once.
69PHSecretary must investigate renewal application
(1)On receipt of a renewal application under section 69PG, the Secretary—
(a)must carry out any investigation or inquiry necessary to determine the renewal application; and
(b)may conduct an inspection of the specified premises of the poppy processing licence; and
(c)may require that an applicant or any associate of the applicant submit to the Secretary a recent police record check of the applicant or any associate of the applicant.
(2)The Secretary must provide a copy of a renewal application made under section 69PG and any accompanying documents to the Chief Commissioner of Police.
(3)The Chief Commissioner of Police must—
(a)inquire into and report to the Secretary on any matters concerning the application that the Chief Commissioner of Police believes are appropriate or reasonably necessary; and
(b)inquire into and report to the Secretary on any matters concerning the renewal application that the Secretary requests; and
(c)within 28 days of receiving the application from the Secretary, notify the Secretary in writing of the Chief Commissioner of Police's decision to support or oppose the renewal of a licence and provide the reasons for the decision.
(4)If the Secretary is notified under subsection (3)(c) that the Chief Commissioner of Police opposes the renewal of a poppy processing licence the Secretary must not renew the licence.
69PIDetermining a renewal application
(1)After considering a renewal application and any investigation under section 69PH, the Secretary must determine the renewal application within 60 days of receiving it.
(2)The Secretary may renew a poppy processing licence for a period not exceeding 12 months.
(3)The Secretary may refuse to renew a poppy processing licence of a licensed processor.
(4)A renewed poppy processing licence expires on the date specified by the Secretary unless the licence is cancelled or suspended prior to the expiry.
(5)The Secretary must—
(a)notify the applicant in writing of the decision under subsection (2); and
(b)if the Secretary refuses to renew the poppy processing licence under subsection (3), provide reasons for the decision.
Division 4—General provisions applying to a poppy cultivation licence or poppy processing licence
69QAmendment of licences
(1)The Secretary may—
(a)amend an existing term, condition, limitation or restriction to which a poppy cultivation licence or poppy processing licence is subject; or
(b)impose a new term, condition, limitation or restriction on the poppy cultivation licence or the poppy processing licence.
(2)The Secretary may exercise a power under subsection (1)—
(a)on the application of the licensed grower or the licensed processor; or
(b)in the Secretary's discretion.
(3)The Secretary must determine an application made under subsection (2)(a) within 28 days of receiving the application.
(4)The Secretary must notify the licensed grower or the licensed processor, in writing within 7 business days, if an amendment to a licence is made under subsection (1)(a) or (b).
(5)An application by a licensed grower or a licensed processor made under subsection (2)(a) must—
(a)be in writing; and
(b)be accompanied by the relevant prescribed fee (if any); and
(c)be accompanied by any prescribed particulars.
69QASuspension or cancellation of licences
(1)The Secretary, by notice in writing to the licensed grower or the licensed processor, may suspend or cancel the relevant licence if—
(a)the licensed grower or the licensed processor requests suspension or cancellation; or
(b)the licensed grower or the licensed processor has not complied with the terms, conditions, limitations or restrictions of the licence; or
(c)the licensed grower or the licensed processor has failed to comply with this Part or the regulations applying under this Part; or
(d)the Secretary is satisfied that the licensed grower or the licensed processor or any associate of the licensed grower or the licensed processor is no longer a fit and proper person to be concerned with or associated with, as the case requires—
(i)the cultivation of alkaloid poppies; or
(ii)the processing of poppy straw; or
(e)the Secretary is satisfied that the specified premises—
(i)of the licensed grower are no longer suitable for the cultivation of alkaloid poppies; or
(ii)of the licensed processor are no longer suitable for the processing of poppy straw; or
(f)the Secretary is satisfied that the licensed grower or the licensed processor obtained the relevant licence by fraud, misrepresentation or concealment of facts; or
(g)the Chief Commissioner of Police requests suspension or cancellation on the basis of protected information concerning the licensed grower or the licensed processor; or
(h)the licensed grower or the licensed processor ceases to carry on the research or commercial activity to which the relevant licence relates.
(2)If a poppy cultivation licence or a poppy processing licence is suspended or cancelled under subsection (1) the Secretary must—
(a)notify the Chief Commissioner of Police regarding the suspension or cancellation; and
(b)in the case of a poppy cultivation licence, notify a licensed processor who has a registered contract with the licensed grower within 7 business days of the suspension or cancellation taking effect; or
(c)in the case of a poppy processing licence, notify the licensed grower who has a contract registered in the alkaloid poppy register with the licensed processor within 7 business days of the suspension or cancellation taking effect.
(3)A poppy cultivation licence or a poppy processing licence ceases to have effect on the suspension or cancellation of the licence under this section.
Division 5—Inspection and enforcement
69RInspectors under this Part
(1)The Secretary, by instrument, may authorise the following persons to be inspectors for the purposes of all or any specified provisions of this Part—
(a)any person employed under Part 3 of the Public Administration Act 2004; or
(b)any other appropriately qualified person.
(2)The Secretary may determine the terms and conditions of authorisation of any inspector.
(3)The terms and conditions of authorisation of an inspector may contain general directions as to how the inspector's powers may be exercised.
(4)The Secretary, in writing, may vary or revoke the authorisation of an inspector at any time.
69RAInspectors identification certificate
(1)The Secretary must issue an identification certificate to each inspector (other than an inspector who is a member of the police force) which sets out the provisions of this Part for which the inspector is authorised to be an inspector.
(2)In the course of performing his or her functions under this Part, an inspector must produce his or her identification certificate to any person who requests its production.
(3)In this Part, a reference to an identification certificate in relation to an 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.
69RBGeneral powers of inspector
(1)For the purposes of determining compliance with this Part or a licence issued under this Part, an inspector, with any assistance he or she thinks necessary, at any reasonable time may do all or any of the following—
(a)enter and inspect any place, other than premises used as a residence, occupied by any person who is the licensed grower or the licensed processor; and
(b)inspect, count, examine or mark for identification any alkaloid poppy or poppy straw in the place; and
(c)intercept, inspect and examine any vehicle or machine which an inspector reasonably believes is being used for the harvest of alkaloid poppies and transport of poppy straw; and
(d)require a person to produce any document that the inspector reasonably requires for ascertaining whether this Part or a poppy cultivation licence or a poppy processing licence is being complied with—
(i)to examine the document; and
(ii)to make copies of it or take extracts from it; and
(iii)to remove the document for as long as is reasonably necessary to make copies or take extracts; and
(e)take or remove for examination samples of or from, or specimens of, soil, any alkaloid poppy or poppy straw or any other plant or crop to determine—
(i)whether the alkaloid poppy or poppy straw has been cultivated or processed in accordance with the relevant licence; or
(ii)that its possession is in accordance with the relevant licence; and
(f)submit any sample or specimen taken in accordance with this Part to a laboratory or place approved by the Secretary for examination and testing.
(2)An inspector must not exercise any powers under this Part if the inspector fails to produce his or her identification certificate for inspection on request by the occupier of the place or the person in charge or apparent control of the place.
69RCProcedure on seizing a document, thing or taking a sample
(1)Subject to section 69RI, if an inspector seizes a document or thing or takes a sample of, or from, a thing at the premises occupied by the licensed grower or the licensed processor, the inspector must give a detention or seizure receipt for the document or thing or sample to the licensed grower or the licensed processor from whom it was taken.
(2)If an inspector is unable to give a detention or seizure receipt to the relevant licensed grower or licensed processor in respect of a document or thing or sample seized, the inspector must—
(a)leave the detention or seizure receipt with, or post it to, the licensed grower or the licensed processor that occupies the premises from which the document or thing or sample was seized; and
(b)if a document is seized, leave a copy of the document, if practicable, with, or post it to, the licensed grower or the licensed processor that occupies the premises from which the document was seized.
(3)A detention or seizure receipt must—
(a)identify the seized document, thing or sample taken; and
(b)state the name of the inspector who seized the document, thing or took the sample; and
(c)state the reason why the document or thing was seized or the sample was taken.
(4)If an inspector proposes to take a sample under section 69RB(1)(e) the inspector must—
(a)divide the sample into 3 parts; and
(b)give one part to the licensed grower or the licensed processor, as the case requires, and retain one part for examination and one part untouched for future comparison.
69RDPower to use electronic equipment at premises
(1)This section applies if—
(a)while acting under section 69RB, an inspector finds a thing at the premises that is or includes a disk, tape or other device for the storage of information; and
(b)there is at the premises equipment that may be used with the disk, tape or other storage device; and
(c)the inspector believes, on reasonable grounds, that information stored in the disk, tape or other storage device may be relevant to determine whether this Part has been contravened.
(2)An inspector may operate or may require the licensed grower or the licensed processor or an employee of the licensed grower or the licensed processor to operate the equipment to access the information.
69REPower to copy information on electronic storage devices
If an inspector finds that a disk, tape or other storage device at the premises contains information that the inspector believes, on reasonable grounds, stores information that is relevant to determine whether this Part has been complied with, the inspector may—
(a)put the information in a documentary form and seize the documents so produced; or
(b)copy the information to another disk, tape or other storage device and remove that disk, tape or storage device from the premises.
69RFInspector must not damage equipment
An inspector must not operate equipment for a purpose set out in section 69RD or 69RE unless the inspector believes, on reasonable grounds, that the operation can be carried out without damage to the equipment.
69RGInspector may possess alkaloid poppies or poppy straw
For the purposes of this Act, an inspector is authorised to have alkaloid poppies or poppy straw 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.
69RHInspector has power to detain or seize alkaloid poppies or poppy straw
An inspector may detain or seize any alkaloid poppies, poppy straw or material derived from alkaloid poppies or poppy straw and deal with it in accordance with section 69RI if the inspector believes on reasonable grounds that—
(a)in the case of a poppy cultivation licence, the licensed grower has contravened this Part or the poppy cultivation licence; or
(b)in the case of a poppy processing licence, the licensed processor has contravened this Part or the poppy processing licence; or
(c)the relevant licence has been suspended or cancelled under this Part.
69RIProcedure on detaining or seizing alkaloid poppies or poppy straw
(1)If an inspector detains or seizes any seized material under section 69RH, the inspector must immediately—
(a)make a written record of the detention or seizure; and
(b)give a detention or seizure receipt to the licensed grower or the licensed processor, as the case requires, that—
(i)identifies the seized material taken; and
(ii)states the name of the inspector who detained or seized the seized material; and
(iii)states the reasons for the detention or seizure; and
(c)in the case of an inspector who is not a member of the police force, send a copy of the detention or seizure receipt to the Secretary; and
(d)in the case of an inspector who is a member of the police force, send a copy of the detention or seizure receipt to the Chief Commissioner of Police and the Secretary.
(2)If an inspector detains or seizes any seized material under section 69RH, the inspector, with any assistance necessary, may take or send the seized material to a place approved by the Secretary for it to be examined, tested or stored.
(3)This section does not limit or prevent the exercise of any power by a member of the police force to commence a proceeding in respect of compliance with this Part in relation to any seized material.
69RJSecretary has power to dispose or deal with seized alkaloid poppies or poppy straw
(1)This section applies if—
(a)the Secretary is satisfied on reasonable grounds that this Part has been contravened; and
(b)the relevant licensed grower or licensed processor has surrendered the seized material to the Secretary and agreed that the Secretary may deal with the seized material.
(2)In dealing with seized material to which this section applies, the Secretary may do any of the following—
(a)dispose of the seized material;
(b)direct the licensed grower or the licensed processor (as the case requires) to dispose of the seized material;
(c)harvest and deal with the seized material as appropriate;
(d)harvest and destroy the seized material;
(e)enter into an agreement with the licensed grower or the licensed processor (as the case requires), or any other person, to deal with the seized material as required in all of the circumstances;
(f)anything reasonably necessary to ensure the security of the seized material.
69RKRetention and return of seized alkaloid poppies or poppy straw
(1)If an inspector seizes any seized material under section 69RH, subject to section 69RJ, the Secretary with any assistance necessary must—
(a)take reasonable steps to release or return the seized material to the licensed grower or the licensed processor from whom it was seized or its lawful owner if the reason for its detention or seizure no longer exists; or
(b)retain any seized material that is required for evidence in a legal proceeding in a place approved by the Secretary.
(2)If the seized material has not been returned to the licensed grower or the licensed processor from whom it was seized or its lawful owner within 3 months after it was seized, the Secretary must take reasonable steps to return it to that licensed grower or licensed processor or lawful owner (as the case requires) unless—
(a)proceedings for the purpose for which the seized material was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or
(b)the Magistrates' Court makes an order under section 69RL extending the period during which the seized material may be retained.
69RLMagistrates' Court may extend 3 month period
(1)The Secretary may apply to the Magistrates' Court for an extension (not exceeding 3 months) of the period during which the seized material may be retained—
(a)within 3 months after the seized material is seized under section 69RH; or
(b)if an extension has been granted under this section, before the end of the period of the extension.
(2)The Magistrates' Court may make an order extending the period that the seized material is to be retained if satisfied that—
(a)the making of the order is in the interests of justice; and
(b)the total period of retention does not exceed 12 months; and
(c)retention of the seized material is necessary for the purposes of an investigation into whether a contravention of this Part has occurred.
(3)At least 7 days prior to the hearing of an application under subsection (1), the Secretary must give notice of the application to the licensed grower or the licensed processor, as the case requires, from whom the alkaloid poppies, poppy straw or material derived from alkaloid poppies or poppy straw were seized or its lawful owner described in the application.
69RMForfeiture, harvest and destruction of alkaloid poppies or poppy straw
(1)The Secretary may apply to the Magistrates' Court for a harvest and destruction order if the Secretary—
(a)is satisfied on reasonable grounds that a licensed grower or a licensed processor has contravened this Part; and
(b)has cancelled the relevant licence.
(2)The Magistrates' Court may make an order that the seized material of the licensed grower or the licensed processor, as the case requires, be forfeited to the Crown and be dealt with in accordance with a harvest and destruction order made under subsection (3) if satisfied that—
(a)the relevant seized material poses a risk to public health and safety; and
(b)in all the circumstances it is appropriate to make a harvest and destruction order in regards to the relevant seized material.
(3)The Magistrates' Court may make any of the following harvest and destruction orders (as the case requires)—
(a)an order that the relevant seized material be harvested;
(b)an order that the relevant seized material be destroyed;
(c)an order that the relevant seized material be harvested and destroyed.
(4)The Magistrates' Court may—
(a)give any direction necessary to enable the Secretary to carry out the harvest and destruction order; and
(b)authorise the Secretary to give any appropriate direction to harvest or destroy the seized material (as the case requires) to which the order relates.
69RNRecovery of costs
If the Secretary incurs any costs in carrying out a harvest and destruction order the Secretary may recover those costs in any court of competent jurisdiction as a debt due to the Crown.
69ROInspector may access ratepayer information
(1)For the purposes of exercising a power under this Part, an inspector may require a person having custody of any records relating to ratepayers (within the meaning of the Local Government Act 1989) to provide the inspector with—
(a)the name and address or other contact details of a ratepayer—
(i)who is a licensed grower or a licensed processor; or
(ii)who is an applicant for a poppy cultivation licence or a poppy processing licence; or
(b)the address or description of any land in respect of which the ratepayer is liable to pay rates and charges under Part 8 of the Local Government Act 1989 if the ratepayer—
(i)is a licensed grower or a licensed processor; or
(ii)is an applicant for a licence under this Part.
(2)An inspector may make a record of any information provided to the inspector under subsection (1).
(3)An inspector must not be charged a fee for anything done, or required to be done, by the inspector under this section.
69RPProtection against self-incrimination
It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that thing would tend to incriminate the person.
69RQPower to issue infringement notices
(1)An inspector may serve an infringement notice on a person who the inspector has reason to believe has committed a prescribed offence.
(2)An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.
69RRInfringement penalty
The infringement penalty for an offence against this Part is the prescribed infringement penalty in respect of that offence.
Division 6—Offences
69SOffence to fail to report the amendment or cancellation of a contract
A licensed grower who holds a poppy cultivation licence under section 69O(1) must report to the Secretary within 3 business days any amendment to a contract registered in the alkaloid poppy register that does one or more of the following—
(a)amends the duration of the contract;
(b)amends the maximum quantity of alkaloid poppies that may be cultivated under the contract;
(c)amends the date the contract expires;
(d)cancels the contract.
Penalty:100 penalty units.
69SAOffence to fail to report amendment or cancellation
A licensed processor must inform the Secretary within 10 business days if a Commonwealth licence to manufacture or a Commonwealth licence to export required for the current poppy processing licence held by the licensed processor is amended or cancelled.
Penalty:100 penalty units.
69SBOffence to fail to report on any change of details of the licensed grower or the licensed processor
(1)A licensed grower or a licensed processor must report any specified information referred to in subsection (2) in respect of a poppy cultivation licence or a poppy processing licence to the Secretary within 7 business days.
Penalty:100 penalty units.
(2)For the purposes of subsection (1), specified information is—
(a)any change to the details of the licensed grower or the licensed processor that appears on the poppy cultivation licence or the poppy processing licence; or
(b)any associate other than those provided to the Secretary in the application for a poppy cultivation licence or a poppy processing licence; or
(c)the signing of a personal insolvency agreement or any declaration of bankruptcy that applies to the licence grower or the licence processor; or
(d)any offence that the licensed grower or the licensed processor has been found guilty of by a court in Victoria or elsewhere, after the date of the application for the poppy cultivation licence or the poppy processing licence (as the case requires) was sent to the Secretary; or
(e)any serious offence that an associate of the licensed grower or the licensed processor has been found guilty of by a court in Victoria or elsewhere, after the date of the application for the poppy cultivation licence or the poppy processing licence (as the case requires) was sent to the Secretary; or
(f)any information that the name of an associate of a licensed grower or a licensed processor provided to the Secretary by the licensed grower or the licensed processor, in a successful application under this Part, has been changed; or
(g)the entering by a licensed grower or a licensed processor that is not a natural person into voluntary administration, liquidation or receivership.
69SCOffence to fail to surrender licence on suspension or cancellation
Within 14 days of the suspension or cancellation of a poppy cultivation licence or a poppy processing licence under section 69QA a person must surrender to the Secretary—
(a)the relevant licence; and
(b)any related document issued to the person.
Penalty:20 penalty units.
69SDOffence to contravene a licence
(1)A licensed grower must not contravene a prescribed minor term, condition, limitation or restriction to which the poppy cultivation licence is subject.
Penalty:20 penalty units.
(2)A licensed grower must not contravene the terms, conditions, limitations or restrictions to which the poppy cultivation licence is subject which is not a prescribed minor term, condition, limitation or restriction.
Penalty:100 penalty units or 12 months imprisonment or both.
(3)A licensed processor must not contravene a prescribed minor term, condition, limitation or restriction to which the poppy processing licence is subject.
Penalty:20 penalty units.
(4)A licensed processor must not contravene the terms, conditions, limitations or restrictions to which the poppy processing licence is subject which is not a prescribed minor term, condition, limitation or restriction.
Penalty:100 penalty units or 12 months imprisonment or both.
69SEOffence to fail to prohibit access to premises
(1)A licensed grower must not permit any other person to enter the area of land where alkaloid poppies are being cultivated unless that other person is—
(a)an employee of the licensed grower who is employed to undertake an activity authorised under the poppy cultivation licence; or
(b)a licensed processor; or
(c)a party to a contract registered in the alkaloid poppy register with the relevant licensed grower or an employee of the relevant licensed processor.
Penalty:100 penalty units.
(2)A licensed processor must not permit any other person to enter the specified premises unless that other person is an employee of the licensed processor who is employed—
(a)to carry out an activity in the business conducted by a licensed processor under the poppy processing licence; or
(b)to undertake an activity authorised under the poppy processing licence.
Penalty:100 penalty units.
(3)A licensed grower must not permit any other person to enter the area of land where alkaloid poppies are being cultivated unless that other person is accompanied at all times—
(a)by the licensed grower; or
(b)by an employee of the licensed grower who is employed to undertake an activity authorised under the poppy cultivation licence; or
(c)by an inspector.
Penalty:100 penalty units.
(4)A licensed processor must not permit any other person to enter the specified premises unless the other person is accompanied at all times—
(a)by the licensed processor; or
(b)by an employee of the licensed processor who is employed to undertake an activity authorised under the poppy processing licence; or
(c)by an inspector.
Penalty:100 penalty units.
69SFOffence to fail to carry and produce identification certificate
(1)An employee of a licensed grower or a licensed processor who has been issued with an employee identification certificate must carry the certificate with him or her during the performance of any activity authorised under the relevant licence.
Penalty:60 penalty units.
(2)An employee of a licensed grower or a licensed processor must produce his or her employee identification certificate on the request of an inspector.
Penalty:60 penalty units.
69SGOffence to employ disqualified persons under licence
(1)A licensed grower must not employ a disqualified person in the business conducted under the poppy cultivation licence.
Penalty:60 penalty units.
(2)A licensed processor must not employ a disqualified person in the business conducted under the poppy processing licence.
Penalty:60 penalty units.
69SHOffence for disqualified person to be employed by licensed grower or licensed processor
(1)A disqualified person must not accept employment to carry out activities in the business conducted by a licensed grower under a poppy cultivation licence.
Penalty:60 penalty units.
(2)A disqualified person must not accept employment to carry out activities in the business conducted by a licensed processor under a poppy processing licence.
Penalty:60 penalty units.
69SIEmployee must comply with terms and conditions of licence
(1)A licensed grower must take reasonable steps to prevent an employee of the licensed grower contravening the terms, conditions, limitations or restrictions of the poppy cultivation licence and the applicable requirements of this Part in carrying out an activity authorised by the licence.
Penalty:60 penalty units.
(2)A licensed processor must take reasonable steps to prevent an employee of the licensed processor contravening the terms, conditions, limitations or restrictions of the licence and the applicable requirements of this Part in carrying out an activity authorised by the licence.
Penalty:60 penalty units.
(3)A licensed grower must take reasonable steps to provide each employee of the licensed grower carrying out an activity authorised under the poppy cultivation licence with sufficient and appropriate information, instruction, training and supervision to be able to carry out that activity in accordance with the licence.
Penalty:60 penalty units.
(4)A licensed processor must take reasonable steps to provide each employee of the licensed processor carrying out an activity authorised under the poppy processing licence with sufficient and appropriate information, instruction, training and supervision to be able to carry out that activity in accordance with the licence.
Penalty:60 penalty units.
(5)An employee must cooperate with the licensed grower in relation to any direction given, or action taken, by the licensed grower or by any person authorised by the licensed grower, in order to comply with subsection (1) or (3).
Penalty:60 penalty units.
(6)An employee must cooperate with the licensed processor in relation to any direction given, or action taken, by the licensed processor or by any person authorised by the licensed processor, in order to comply with subsection (2) or (4).
Penalty:60 penalty units.
69SJCriminal liability of licensed grower or licensed processor—failure to exercise due diligence
(1)If an employee of a licensed grower or a licensed processor commits an offence against this Part, the relevant licensed grower or licensed processor also commits an offence against this Part, if the licensed grower or the licensed processor failed to exercise due diligence to prevent the commission of the offence by the employee.
(2)A licensed grower or a licensed processor referred to in subsection (1) is liable to a penalty not exceeding the maximum penalty that applies to the offence against this Part committed by the employee.
(3)In determining whether a licensed grower or a licensed processor failed to exercise due diligence, a court may have regard to—
(a)whether or not the licensed grower or the licensed processor permitted or authorised the act or omission of the employee in the course of his or her employment that constituted the offence against this Part; and
(b)what steps the licensed grower or the licensed processor took, or could reasonably have taken, to prevent the commission of the offence by the employee.
(4)Without limiting any other defence available to a licensed grower or a licensed processor, the relevant licensed grower or licensed processor may rely on a defence that would be available to the employee of the licensed grower or the licensed processor if (as the case requires)—
(a)the employee were charged with the offence with which the licensed grower or the licensed processor is charged; and
(b)in doing so, the licensed grower or the licensed processor bears the same burden of proof that the employee would bear.
(5)A licensed grower or a licensed processor may commit an offence against this Part whether or not the employee of the licensed grower or the licensed processor, as the case requires, has been prosecuted for, or found guilty of, an offence against this Part.
69SKOffence to fail to provide an identification certificate for employees
(1)A licensed grower must issue to each employee authorised in respect of the poppy cultivation licence an employee identification certificate that contains the information required under section 69OF(2).
Penalty:60 penalty units.
(2)A licensed processor must issue to each employee authorised in respect of the poppy processing licence an employee identification certificate that contains the information required under section 69PF(2).
Penalty:60 penalty units.
69SLOffence to hinder or obstruct inspector
(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 any direction, requirement or order of an inspector under this Part.
Penalty:100 penalty units.
69SMOffence to remove detained or seized alkaloid poppies or poppy straw
A person must not, while a detention or seizure notice remains in effect, remove the whole or any part of an alkaloid poppy, poppy straw or material derived from an alkaloid poppy or poppy straw to which the notice relates, without the authorisation of the Secretary or an inspector.
Penalty:100 penalty units.
Division 7—Alkaloid Poppy Register
69TAlkaloid poppy register
(1)The Secretary must establish and maintain the alkaloid poppy register.
(2)The alkaloid poppy register is to contain the following information in respect of each registrable contract—
(a)the name of each party to the contract;
(b)the location of the specified premises;
(c)the date the contract was entered into by the parties;
(d)any other relevant information provided by an applicant or licensed grower or licensed processor to an inspector or the Secretary;
(e)the details of the relevant poppy cultivation licence or poppy processing licence;
(f)any relevant information collected or received by an inspector to determine the compliance of a licensed grower or a licensed processor with this Part;
(g)any other prescribed information.
69TARequest to register a contract
(1)The Secretary, if requested to do so by a licensed grower, may register a contract between the licensed grower and a licensed processor in the alkaloid poppy register if the contract—
(a)is a valid contract; and
(b)includes details of the specified premises and area of land where it is proposed to cultivate alkaloid poppies; and
(c)specifies the period of the contract; and
(d)includes any other prescribed particulars (if any).
(2)If a licensed grower makes a request under subsection (1), the Secretary must, within 7 days—
(a)register the contract; or
(b)refuse to register the contract.
(3)On making a decision under subsection (2) the Secretary must—
(a)notify the licensed grower and the licensed processor who are the parties to the contract of that decision; and
(b)provide reasons for the decision if the decision was a refusal under subsection (2)(b).
69TBAccess to the alkaloid poppy register restricted
(1)The Secretary must ensure that the alkaloid poppy register, or any part of the alkaloid poppy register, is only accessed by a prescribed person, or class of prescribed person, who is authorised to do so by the Secretary.
(2)The Secretary must ensure that personal information in the alkaloid poppy register is only disclosed in accordance with this Act.
69TCPerson with access to alkaloid poppy register not to disclose personal information from it
(1)Unless a disclosure is authorised under this section, a person authorised to have access to the alkaloid poppy register or any part of the alkaloid poppy register must not disclose to any person the following information in the alkaloid poppy register—
(a)any personal information;
(b)the location of specified premises;
(c)commercial in confidence information.
Penalty:100 penalty units or 12 months imprisonment or both.
(2)The Secretary or a person authorised to have access to the alkaloid poppy register or any part of the alkaloid poppy register may disclose personal information in the alkaloid poppy register to a Department or public statutory authority—
(a)for the purpose of law enforcement; or
(b)as required by or under any Act or law; or
(c)if the Secretary or a person authorised to have access to the alkaloid poppy register believes on reasonable grounds that to do so is necessary to enable the proper administration of the Act.
69TDDelegation
The Secretary, by instrument, may delegate any powers or functions of the Secretary under this Part, other than this power of delegation, to a person or class of persons employed under Part 3 of the Public Administration Act 2004.
Division 8—Review by VCAT
69URefusal of licence or renewal of licence on grounds of protected information
(1)If the Chief Commissioner of Police opposes the issuing or renewal of a poppy cultivation licence or a poppy processing licence wholly or partly on the basis of protected information, to the extent that the Chief Commissioner's reasons for that decision relate to protected information—
(a)the Chief Commissioner of Police must inform the Secretary in writing; and
(b)the requirement under section 69OB(4)(b), 69OI(5)(b), 69PB(4)(b) or 69PI(5)(b) to provide reasons for the decision do not apply; and
(c)the Secretary and the applicant are not entitled to be provided with those reasons.
(2)If a person is not entitled under subsection (1) to some or all of the reasons for a decision under section 69OA(3)(c), 69OH(3)(c), 69PA(3)(c) or 69PH(3)(c)—
(a)the Chief Commissioner of Police must create a written record of the reasons for the decision; and
(b)the Secretary must notify the applicant that the application has been denied on the basis of protected information; and
(c)the Secretary must inform the applicant that—
(i)the Chief Commissioner of Police has created a written record of the reasons for the decision that relate to the protected information; and
(ii)the reasons are not able to be disclosed to the applicant; and
(iii)he or she is entitled to seek review of the Secretary's decision by VCAT; and
(d)if the applicant seeks review of the decision by VCAT, the Chief Commissioner of Police must provide the reasons to VCAT.
(3)Section 8 of the Administrative Law Act 1978 does not apply to a decision to which this section applies.
69UAReview by VCAT
(1)A person may apply to VCAT for review of a decision of the Secretary—
(a)to refuse to issue a poppy cultivation licence or a poppy processing licence to that person; or
(b)to refuse to issue to that person or to renew a poppy cultivation licence or a poppy processing licence wholly or partly on the basis of protected information; or
(c)to refuse to renew a poppy cultivation licence or a poppy processing licence held by that person; or
(d)to refuse to register a contract between a licensed grower and a licensed processor in the alkaloid poppy register; or
(e)to suspend, cancel or amend a poppy cultivation licence or a poppy processing licence held by that person.
(2)An application for review under subsection (1) must be made within 28 days after the later of—
(a)the day on which the decision is made; or
(b)if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
69UBVCAT to inquire on grounds for refusal
If VCAT receives an application for review under section 69UA(1)(a), (c) or (e), VCAT must enquire of the Secretary whether the grounds for the refusal, suspension, cancellation or amendment were based on any protected information.
69UCAppointment of special counsel
(1)VCAT must appoint a special counsel to represent the interests of the applicant—
(a)if in response to a request under section 69UB, the Secretary informs VCAT in writing that a decision was based on protected information; or
(b)on receipt of an application for review under section 69UA(1)(b).
(2)A special counsel must be a barrister within the meaning of the Legal Profession Act 2004 who, in the opinion of VCAT, has the appropriate skills and ability to represent the interests of the party at the hearing.
(3)At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the application for the purpose of obtaining information or instructions from the party or representative in relation to the proceeding the special counsel may communicate with—
(a)the party whose interests he or she is representing; or
(b)any representative of that party.
(4)Subject to section 69UE(3), at any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the application, the special counsel—
(a)must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and
(b)must not communicate any other information in relation to the hearing to that party or a representative of that party without leave of VCAT, except to communicate any order made by VCAT at or in relation to the hearing.
(5)A special counsel may be required to sign a confidentiality undertaking to VCAT.
69UDProcedure for hearing—protected information
(1)If, in response to a request under section 69UB, the Secretary informs VCAT in writing that the decision was based on protected information or the application for review was made under section 69UA(1)(b), VCAT must, at the hearing of the application, first determine whether or not the information is protected information.
(2)For the purposes of making a determination under subsection (1), VCAT may hold a hearing or any part of it in private.
(3)If VCAT determines to hold a hearing
or part of a hearing in private under subsection (2)—
(a)only the Chief Commissioner of Police and the special counsel are entitled to be present; and
(b)each party that is entitled to be present has a right to make submissions as to—
(i)whether evidence supporting the grounds for refusal to issue or to renew the relevant licence, the cancellation or the suspension of the relevant licence amounts to protected information; and
(ii)the weight that should be given to that evidence; and
(iii)the character of the applicant, being evidence indicating whether the applicant is a fit and proper person to hold a poppy cultivation licence or a poppy processing licence; and
(iv)whether, in all the circumstances, the poppy cultivation licence or the poppy processing licence should be renewed or issued to the applicant.
(4)After hearing the evidence of the Chief Commissioner of Police and the special counsel under subsection (3), VCAT must decide whether or not any of the evidence adduced amounts to protected information.
(5)If VCAT decides that none of the evidence adduced under subsection (3) amounts to protected information, VCAT must admit the applicant to the proceeding and subsection (3) ceases to apply to the conduct of the hearing.
69UEDecision of VCAT where protected information exists
(1)Without limiting any other power of VCAT conferred by or under this Part or any other Act, if VCAT decides that any of the evidence adduced under section 69UD(3) is protected information, that subsection continues to apply to the hearing of the proceeding to the extent that it relates to that protected information.
(2)In making a determination in a proceeding to which subsection (1) applies, VCAT must decide—
(a)what weight to give the protected information and any other evidence adduced; and
(b)whether, in all the circumstances, the poppy cultivation licence or the poppy processing licence should be issued to the applicant, renewed or reinstated (as the case may be).
(3)If VCAT decides that any of the evidence adduced under section 69UD(3) is protected information—
(a)VCAT must take all steps and precautions to prevent release of that information; and
(b)if the special counsel wishes to seek further instructions from the applicant on one or more occasions in relation to that protected information, the special counsel may do so only by submitting written questions for the approval of VCAT after hearing any submissions from the Chief Commissioner of Police on their content.
(4)Despite section 117 of the Victorian Civil and Administrative Tribunal Act 1998, any order issued by VCAT in relation to a decision under this section must only state—
(a)whether the decision of the Secretary is upheld or overturned; and
(b)if the poppy cultivation licence or the poppy processing licence is not issued, reinstated or renewed (as the case requires), that the applicant or each relevant person in relation to the application has failed to meet the fit and proper person requirements.
(5)For the avoidance of doubt, VCAT may publish reasons for its decision to the extent that those reasons do not relate to protected information.
69UFGeneral provisions for hearing matters involving protected information
(1)For the purposes of a hearing to which section 69UD or 69UE applies, VCAT must be constituted by a presidential member.
(2)At any time before a final determination has been made by VCAT on a matter to which section 69UD or 69UE applies—
(a)the Secretary may change his or her decision and renew or issue or reinstate the poppy cultivation licence or the poppy processing licence; and
(b)if the poppy cultivation licence or the poppy processing licence is renewed or issued or reinstated (as the case requires), the proceeding terminates immediately.
(3)The following provisions do not apply to a proceeding for as long as section 69UD or 69UE applies—
(a)Subdivision 1 of Division 3 of Part 3 and sections 49 and 101 of the Victorian Civil and Administrative Tribunal Act 1998;
(b)section 8 of the Administrative Law Act 1978.
(4)Subsection (3) does not apply to any extent that the proceedings do not involve protected information.
Division 9—Regulations
69VRegulations
(1)The Governor in Council may make regulations for or with respect to the following—
(a)the cultivation of alkaloid poppies;
(b)the processing of poppy straw;
(c)classes of persons that are disqualified persons;
(d)prescribing fees or levies to recover any compliance or administrative costs;
(e)prescribing terms, conditions, limitations and restrictions to which licences issued under this Part will be subject;
(f)particulars to be included in any application for the issue, renewal or amendment of a poppy cultivation licence or a poppy processing licence;
(g)restricting, limiting or prohibiting premises, vehicles or machines used or intended to be used in connection with the cultivation and destruction of alkaloid poppies or the processing or destruction of poppy straw;
(h)limiting or prohibiting transport of poppy straw, including in relation to specific geographical areas or regions in Victoria;
(i)the distance required to separate alkaloid poppies and poppy straw at a specified premises from any other place;
(j)matters to be considered by the Secretary in relation to the suitability of specified premises for the cultivation of alkaloid poppies or processing of poppy straw;
(k)fencing of specified premises and standard of fencing required to separate alkaloid poppies and poppy straw from a public place or any other premises;
(l)requirements of signage at specified premises and information to be displayed at a specified premises, or on equipment or vehicles used for or in connection with the growing or harvesting of alkaloid poppies or the processing of poppy straw;
(m)the manner in which searches, detentions and seizures under this Part are to be carried out;
(n)records to be kept in relation to alkaloid poppy cultivation or poppy straw processing;
(o)prescribing a penalty of not more than 100 penalty units for any contravention of or failure to comply with the regulations made under this Part.
(2)Regulations made under this Part may—
(a)be of general or limited application;
(b)differ according to differences in time, place or circumstances;
(c)apply to different classes of person and licences;
(d)provide for different fees for different activities or classes of activity or different cases or classes of cases;
(e)provide for waiver or reduction of fees;
(f)in the case of applications for the issue or renewal of licences, specify fees that reflect the cost of administration of, and the provision of, inspection services in connection with this Part;
(g)confer powers or discretions or impose duties on the Secretary or an inspector;
(h)exempt specified persons or things or classes of person or classes of thing from complying with all or any of the regulations—
(i)whether unconditionally or on specified conditions; and
(ii)either wholly or to such an extent as is specified; and
(iii)leave any matter to be required to be undertaken in a manner approved by the Secretary.
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PART 3—OTHER AMENDMENTS
5List of licences and permits
In section 118(1) of the Principal Act, for
"34 or 56" substitute "34, 56 or Part IVB".
6Evidentiary
In section 119(ea) of the Principal Act—
(a)after "Part IVA" insert "or a holder of a licence under Part IVB";
(b)after "Department of" insert "Environment and".
7General regulations
After section 132(zcd) of the Principal Act insert—
"(zce)any matter or thing required to be prescribed for the purposes of Part IVB;".
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PART 4—REPEAL OF AMENDING ACT
8Repeal of amending Act
This Act is repealed on 1 December 2015.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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ENDNOTES
Minister's second reading speech—
Legislative Assembly: 11 December 2013
Legislative Council: 20 February 2014
The long title for the Bill for this Act was "A Bill for an Act to amend the Drugs, Poisons and Controlled Substances Act 1981 to provide for a licensing scheme for poppy cultivation and processing and for other purposes."
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