POPPRY REGULATION BILL 2014 Explanatory Statement

2014

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR PRIMARY INDUSTRY AND FISHERIES

POPPY REGULATION BILL 2014

SERIAL NO. 78

EXPLANATORY STATEMENT

This Poppy Regulation Bill 2014 (“the Bill”) provides for the regulation of opium poppy activities to capture the cultivation, processing, transportation and storage of poppy material and any related activities. The Bill also seeks to reduce the risk to the safety and security of persons from such activities by providing a strict licensing framework.

Key provisions in the prepared Bill include the need for the applicant and any associates to demonstrate that they are fit and proper persons to be issued with a licence. Further, the applicant also needs to submit for assessment a detailed plan for the management of any risks associated with the activity to be carried out under the poppy licence (e.g. ensuring appropriate site security, the management of bio-security risks and other conditions of licensing).

Under the prepared Bill, it is a requirement of the appointed Licensing Authority to seek the views of the Commissioner for Police on whether or not a licence should be granted, and also allows the Commissioner to use protected information to assist with his/her decision-making. Should the Commissioner form a view that a licence should not be issued to a particular person, then the Licensing Authority is obliged to take this advice and not issue the licence.

For activities carried out under a Northern Territory issued poppy processing licence, the licensee must also hold any Commonwealth licence required as the manufacturing of poppy materials and products are licenced under the Commonwealth’s Narcotic Drugs Act 1967.

The Bill also provides powers for appointed Poppy Control Officers to undertake a range of activities to ensure that licensees and other persons are meeting their obligations under the Act.

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Poppy Regulation Act 2014.

Clause 2(1) provides that the Act commences on the day fixed by the Administrator by Gazette notice, except for clauses 13 and 14 which will commence of 1 July 2014 to coincide with the commencement of the new Northern Territory Civil and Administrative Tribunal.

Clause 3 provides that there are two main objects under the Act. Firstly, it is to provide for the regulation of poppy activities which will capture the cultivation, processing, transportation and storage of poppy material and any related activities. Secondly, the Bill seeks to reduce the risk to the safety and security of persons resulting from such activities by providing a strict licensing framework.

These objects are incorporated into the key clauses of the Bill so it is clear how they must be taken into account by the Court when making orders under a future Act.

Clause 4 provides for the various definitions used throughout the Bill and/or for cross-references to clauses in which terms are defined.

acting in an official capacity means the Authority or an appointed poppy control officer is exercising powers or performing functions under this Act.

associate as defined under the Bill is a very broad term. The intent is to ensure that those who may have an influence over an applicant or an appointed licensee, are themselves fit and proper persons. Some examples of associates captured under the definition include those persons who are a lineal or adoptive ancestor or similar, trustees of an estate, a company, a person if the person is a corporate etc.

licensee, in relation to a particular time, means a person who holds a poppy licence at that time.

poppy means the whole or any part of a plant, whether fresh or dried, of any of the following species or varieties: (a) Papaver somniferum L.; or (b) a species or variety of poppy prescribed by regulation.

poppy control officer, in relation to a particular time, means either a person who holds an appointment under section 18 as a poppy control officer at that time; or a person who is a police officer at that time.

poppy product means a product that is wholly or partly derived from a poppy.

poppy-related material means a poppy product; or the packaging of a poppy or a poppy product; or any other thing that is or has been in such close proximity to a poppy or poppy product that a chemical compound in or derived from the poppy or product is present in the thing.

process, in relation to a poppy, means doing anything intended to transform a poppy into a poppy product.

This clause provides that the proposed Act binds the Crown in all its capacities.

This clause provides that Part IIAA of the Criminal Code applies to an offence against this proposed Act. Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

Clause 7(1) gives the power to the Authority to issue a poppy licence in accordance with this part of the Bill.

Sub-clause 7(2) sets out the four types of activities for which a poppy licence can be issued and these are for the cultivation, possession, transportation and processing of poppy material.

Sub-clause 7(3) gives authority to the poppy licensee and any other contractor or employee of the licensee to undertake activities authorised under the issued poppy licence.

Sub-clause (4) ensures that a poppy licence issued is not transferable and sub-clause (5) that such a licence cannot be granted for a period exceeding three years.

Sub-clause 8(1) allows for a person to apply for a poppy licence covering one or more of the activities detailed under sub-clause 7(2), and for one or more species or varieties of prescribed poppies, and for these activities to be conducted at an (appropriate) place to be specified in the application.

Sub-clause 8(2) requires the applicant to use an approved form (e.g. an application form provided) and sets out the information that needs to accompany the lodged application.

· an applicant’s proposed plan to manage any risks associated with activities conducted under a poppy licence (e.g. ensuring there is an appropriate level of site security to prevent unauthorised access to poppy material, the management of bio-security risks and other conditions or terms of licensing);

· evidence that the applicant and any associates are fit and proper persons to hold and/or be associated with the holder of a poppy licence;

· evidence that an employee or contractor (or an employee of a contractor) are appropriate persons to carry out activities authorised under an issued poppy licence; and

· that the application needs to be accompanied by the prescribed fee (if any) and any other documents prescribed by regulation.

Sub-clause 9(1) requires the Authority, once an application for a poppy licence has been received, to undertake the following activities:

· providing a copy of the application to the Commissioner of Police and seeking from the Commissioner his/her opinion as to whether there is a good reason as to why a poppy licence should not be issued to the applicant; and

· for the Authority to complete any investigation in relation to the application that he/she considers to be appropriate.

Sub-clause 9(2) requires the Commissioner of Police to undertake any investigation the Commissioner considers is appropriate in relation to the application, and within 28 days, provide a certificate back to the Authority stating his/her opinion on whether there is a good reason not to issue a poppy licence to the applicant.

Under sub-clause 9(3), once the Authority has completed its consideration and investigation into the received application, it can decide to issue a poppy licence, or seek more information from the applicant, or choose not to issue a licence. If a licence is to be issued, sub-clause 9(3)(a) sets out the terms and conditions to be applied to the licence, in addition to any others prescribed by regulation.

If a licence is not to be issued, then a notice of decision is to be provided to the applicant.

Sub-clause 9(4) provides guidance around the Authority serving a notice on the applicant seeking more information in relation to its lodged application. Should the requested information not be forth-coming in an appropriate timeframe, then the application is taken to have been abandoned.

Sub-clause 9(5) places the onus on the Authority not to issue a licence unless he/she is: (a) satisfied that the applicant or any associates are fit and proper persons; (b) satisfied that the applicant’s plan to manage any risks associated with the activities conducted under a poppy licence is appropriate; and (c) that the applicant’s intended site for these activities with respect to location, facilities and proposed security arrangements are also appropriate.

Importantly under 9(5)(d), the Authority must not issue a licence to an applicant if the Commissioner of Police has formally conveyed an opinion that a licence should not be issued to that applicant.

Clause 10 sets out the process for seeking the renewal of an existing poppy licence. Requirements with respect to the lodgement, consideration and investigation of a licence renewal are the same as if was for an original (i.e. first-time) application.

Clause 11 allows the Authority to amend a poppy licence by either amending a term or condition, or by imposing a term or condition on a licence after it has been issued. A licensee may apply for such an amendment to its own licence, or the Authority can seek an amendment to a licence on its own initiative.

Sub-clause 12(1) provides the power to the Authority to allow for the suspension or cancellation of a poppy licence. In the Bill sub-sections 12(1)(a) to 12(1)(g) list the grounds upon which the Authority may arrive at either decision (suspension or cancellation).

In sub-clause 12(1)(d), the Commission of Police is able to request the Authority to suspend or cancel a poppy licence on the basis of protected information concerning a licensee (or an applicant). A definition of protected information is provided under sub-clause 12(4) and relates to sensitive information held by the police, which if released, is likely to identify police officers and/or other persons and may comprise their safety or ongoing police investigations.

Under sub-clause 12(2), if a licence is suspended or cancelled, the Authority needs to serve a notice of the decision on the licensee, and also notify the Commissioner of Police of the decision.

Clause 13 sets out the process for a person, who has been served a notice under the Act (e.g. for the non-granting, suspension or cancellation of a licence), to apply to the Northern Territory Civil and Administrative Tribunal for a review of that decision. Applications have to be lodged within 28 days of a decision being made, unless the Tribunal is satisfied that the applicant has a reasonable excuse for not having applied during that period.

Clause 14 simply states that the Northern Territory Civil and Administrative Tribunal will have the jurisdiction to deal with matters under this Act once it has commenced operation.

Clause 15 states that the Chief Executive (of the agency responsible for administering the Act), or another person appointed in writing by the responsible Minister, is to be the Poppy Licensing Authority.

Clause 16 ensures that the Authority has the functions conferred on the Authority under this Act, or any other Act.

Clause 17 allows the Authority to delegate any of its powers and functions to a public sector employee.

Clause 18 provides the responsible Minister with the power to appoint poppy control officers under the Act. Such appointments are to be in writing and the Minister must be satisfied that the persons appointed have the requisite competencies and/or experience to perform the functions detailed in clauses 20 and 21. Under clause 4 of the Bill, a police officer is also a poppy control officer and does not require appointment by the Minister under this Act.

Sub-clause 19(1) and (2) requires the Authority to issue to persons (appointed under clause 18 with the exception of police officers) an identity card. Particulars to be specified on the card include a recent photograph of the person, date of issue and expiry, and the signature of the holder. Sub-clause 19(4) requires a poppy control officer to produce his/her identity card if requested to do so while performing a function under the Act.

Clause 21 details the functions of a poppy control officer and these are to monitor compliance and enforce the Act.

Sub-clause 21(1) gives the power for poppy control officers to exercise their powers if they reasonably believe they are necessary so these officers can perform their functions under the Act.

Sub-clauses 21(2) and 21(3) detail the specific powers poppy control officers have in relation the Act. Key powers include: entry, inspection and search of premises; operation of electronic equipment to access information; power to give a direction to acquire information or halt activities; ability to take samples and/or seize, detain or destroy poppy material.

Clause 22 specifically relates to the powers of poppy control officers with respect to their entry into a dwelling house, which is defined as a place exclusively occupied for residential purposes. As detailed in sub-clause 22(2), a poppy control officer can only enter a dwelling house if permitted to do so by the owner, or if authorised to enter the house by a warrant issued by a judge. Police officers, who are authorised under the Police Administration Act, are permitted to enter a dwelling house at any time.

Clause 23 provides an opportunity for a person, who has complied with a request made by a poppy control officer under clause 21
(e.g. to seize a quantity of poppy material), to recover - from the owner of the place or item - the expenses incurred by the person who complied with the lawful requirement made to him or her. Further, by complying with the requirement made by the poppy control officer, the person is not liable for any damage to the site or item(s).

Clause 24, which applies if a poppy control officer reasonably suspects a person of committing or attempting to commit an offence under the Act, can require the person to provide information to him/her. Such information may include specified information about the poppy material, a person’s name and addresses, and any other information that may assist the officer to contact the person at a later time.

The intent of clause 25 is to ensure that it is not a reasonable excuse for a person to fail to give information and/or a document (pertaining to clauses 21 or 24) on the grounds that it might incriminate the person. However such information provided cannot be used in any other proceedings except for prosecuting offences under this Act or other NT poisons and dangerous drugs legislation.

Clause 26 sets out the procedure that a poppy control officer must follow when detaining or seizing poppy material under clause 21. A key requirement is the providing of a receipt to the person from whom the poppy material was taken.

Clause 27 sets out how the Authority can deal with surrendered poppy material. It provides the Authority and the surrendering person with an opportunity to enter into an agreement to deal with the poppy material as required in the circumstances (e.g. disposal undertaken by the person rather than by the Authority, but under its supervision).

Clause 28 sets out the process for the release or return of seized poppy material to its lawful owner if the reason for its retention or return no longer exists. It also allows a poppy control officer to retain the poppy material in an approved place (i.e. a secure site) in readiness as evidence in a legal proceeding. If the seized poppy material is not returned to the lawful owner within three-months of its seizure, under sub-clause 28(3) the Authority must take reasonable steps for its return, unless legal proceedings have commenced within the three-months and are yet to be completed.

Clause 29 allows the Authority to apply to the Local Court for an extension – not exceeding three-months – to the period the poppy material retained under clause 28 can be held. Under sub-clause 29(3) the total period that the Local Court may make an order for retention of the poppy material cannot exceed 12 months.

Clause 30 allows the Authority to apply to the Local Court for an order forfeiting the seized poppy material to the Territory, if satisfied that the material poses a risk to public health and safety, and it is appropriate to make that order. If granted, then the Local Court may order the Authority to undertake the harvest or destruction (or both) of the forfeited poppy material. The Local Court may also authorise the Authority to give a direction to a person to harvest and/or destroy the material to which the order relates.

This clause allows the Authority to seek the recovery of costs incurred in carrying out an order made under clause 30 relating to the harvesting and/or destruction of forfeited poppy material.

Clause 32 makes it an offence for a person to cultivate, possess, transport or process poppy material if the person is not a licensee under the Act, or an employee, or a contractor (or the employee of the contractor) working under a poppy licence. If guilty, the maximum penalty for this offence is 250 penalty units or a two-year imprisonment.

Clause 33 makes it an offence for a licensee to contravene a term or condition of the licensee’s poppy licence. If guilty, the maximum penalty for this offence is 250 penalty units or a two-year imprisonment.

Clause 34 makes it an offence for a person – who at the time is an employee or a contractor (or an employee of a contractor) – who engages in conduct resulting in a contravention of a term or condition of the licensee’s poppy licence. If guilty, the maximum penalty for this offence is 50 penalty units.

Clause 35 makes it an offence for a person to obstruct a poppy control officer if the person knows the poppy control officer is acting in an official capacity. If guilty, the maximum penalty for this offence is 200 penalty units or a two-year imprisonment.

Clause 36 makes it an offence for a person to fail to comply with a requirement made by a poppy control officer, if the person knows the poppy control officer is acting in an official capacity, and the person engages in conduct that results in a contravention of the requirement. If guilty, the maximum penalty for this offence is 100 penalty units or a one-year imprisonment.

Clause 37 makes it an offence for a person to falsely represent to be a poppy control officer if the person knows that the representation is false. If guilty, the maximum penalty for this offence is 100 penalty units or a one-year imprisonment.

Clause 38 makes it an offence for a person to provide misleading information, or a misleading document, to a poppy control officer, if the person knows that the information is misleading, and knows that the person is a poppy control officer and is acting in an official capacity. The term misleading information is defined under sub-clause 38(5). If guilty, the maximum penalty for the above offences is 200 penalty units or a two-year imprisonment.

Clause 39 makes it an offence for a person to cause or threaten to cause harm to another person with intent to discourage that person from cooperating with the Authority, or in retribution for that person having cooperated with the Authority. The terms cooperate with the Authority and harm are both defined under respective sub-clauses.

If guilty, the maximum penalty for the above offence is 400 penalty units or a two-year imprisonment.

Clause 40 makes it an offence for a person, who in the course of performing functions connected with administration of the Act, engages in conduct that results in the disclosure of information. If guilty, the maximum penalty for the offence is 200 penalty units or a two-year imprisonment.

Clause 41 makes it an offence for a person, who ceases to be a poppy control officer, to fail to return his/her identity card back to the Authority within 21 days of ceasing his/her appointment. If guilty, the maximum penalty for the offence is 20 penalty units.

Under clause 42, an executive officer of a body corporate commits an offence if the body corporate itself commits an offence. This applies if the officer was: in a position to influence the conduct of the body corporate in relation to the commissioning of the offence; failed to prevent the commissioning of the offence; or was reckless about whether or not the offence would happen. Under sub-clause 42(5) the term executive officer is defined. If guilty, the maximum penalty is that which may be imposed for the relevance offence.

Under clause 43, a licensee commits an offence if a contractor or an employee commits an offence under the Act, and if the licensee failed to take reasonable steps to prevent the offence from occurring, and if the licensee was reckless about whether the commissioning of the offence would occur. If guilty, the maximum penalty is that which may be imposed for the relevance offence.

Under clause 44, a proceeding for an offence under the Act can only be commenced by, or with the approval of, the Authority, and within three-years of the Authority first becoming aware of the commissioning of the alleged offence.

To assist with proceedings for an offence under the Act, clause 45 provides for a number of averments where a statement is taken to have been proved in the absence of evidence to the contrary. Averments in this clause pertain to places specified under a poppy licence, specified persons holding or working under a licence, the appointment of poppy control officers, the issuing, amending suspension or cancellation of a licence, and the issuing of a requirement notice under the Act.

If a person is found guilty of an offence under the Act, clause 46 allows a Court, in addition to making any other order under this Act or the Sentencing Act, to make an order requiring the person to reimburse the costs and expenses incurred by the Agency in investigating the offence.

Clause 47 ensures that a person is not civilly or criminally liable for an act done or not done under the Act, if the person has acted in good faith in the exercising of any powers or the performing of any functions, in the role of either the Authority or a poppy control officer. However the liability afforded by this clause does not affect the liability of the Territory, apart from that subsection, it would have for the act or omission. The terms exercise of a power and performance of a function are both further clarified under sub-clause 47(3).

Clause 48 provides a power for the Authority to require persons to submit information to it on forms that have been approved by the Authority (e.g. the Authority mandating a standard application form for persons wishing to apply for a poppy licence etc.). Regulations may allow for the prescribing of particular information to be contained in approved forms.

Clause 49 provides that the Administrator may make regulations under the Act. This clause is to be read with the provisions of the Interpretation Act that set out the kinds of matters that can be covered by regulations.

Northern Territory Explanatory Statements

POPPRY REGULATION BILL 2014