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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Controlled Substances (Poppy Cultivation) Amendment
Bill 2015
A BILL FOR
An Act to amend the
Controlled
Substances Act 1984
.
Contents
Part 2—Amendment of Controlled
Substances Act 1984
Part 4A—Licences to cultivate alkaloid
poppies and process poppy straw
30CMatters to be
considered—fit and proper person
Division 2—Poppy cultivation
licence
30DApplication for poppy
cultivation licence
30EChief Executive must investigate
application
30GTerms and
conditions of a poppy cultivation licence
30HPoppy
cultivation licence is not transferable
30IEmployee of
licensed grower authorised to undertake activities under licence
30JEmployee identification
certificate issued by licensed grower
30KApplication for renewal of
licence
30LChief Executive must investigate
renewal application
30MDetermining a
renewal application
Division 3—Poppy processing
licence
30NApplication for poppy processing
licence
30OChief Executive must investigate
application
30QTerms and
conditions of a poppy processing licence
30RPoppy processing
licence is not transferable
30SEmployee of
licensed processor authorised to undertake activities under
licence
30TEmployee identification
certificate issued by licensed processor
30UApplication for renewal of
licence
30VChief Executive must investigate
renewal application
30WDetermining a
renewal application
Division 4—General provisions
applying to a poppy cultivation licence or poppy processing
licence
30YSuspension or cancellation of
licences
Division 5—Inspection and
enforcement
30ZAIdentification
certificate
30ZBGeneral powers of
inspector
30ZCProcedure on seizing a
document, thing or taking a sample
30ZDPower to use electronic
equipment at premises
30ZEPower to copy information on
electronic storage devices
30ZFInspector must
not damage equipment
30ZGInspector may
possess alkaloid poppies or poppy straw
30ZHInspector has power to detain
or seize alkaloid poppies or poppy straw
30ZIProcedure on detaining or
seizing alkaloid poppies or poppy straw
30ZJChief Executive has power to
dispose or deal with seized alkaloid poppies or poppy straw
30ZKRetention and
return of seized alkaloid poppies or poppy straw
30ZLMagistrates Court may extend 3
month period
30ZMForfeiture, harvest and
destruction of alkaloid poppies or poppy straw
30ZOInspector may
access ratepayer information
30ZPProtection
against self-incrimination
30ZQPower to issue expiation
notices
30ZSOffence to fail
to report the amendment or cancellation of a contract
30ZTOffence to fail
to report amendment or cancellation
30ZVOffence to fail
to surrender licence on suspension or cancellation
30ZWOffence to
contravene a licence
30ZXOffence to fail
to prohibit access to premises
30ZYOffence to fail
to carry and produce identification certificate
30ZZOffence to
employ disqualified persons under licence
30ZZAOffence for
disqualified person to be employed by licensed grower or licensed
processor
30ZZBEmployee must
comply with terms and conditions of licence
30ZZCCriminal
liability of licensed grower or licensed processor—failure to exercise due
diligence
30ZZDOffence to
fail to provide an identification certificate for employees
30ZZEOffence to
hinder or obstruct inspector
30ZZFOffence to
remove detained or seized alkaloid poppies or poppy straw
Division 7—Division
7—Alkaloid Poppy Register
30ZZHRequest to
register a contract
30ZZIAccess to the
alkaloid poppy register restricted
30ZZJPerson with
access to alkaloid poppy register not to disclose personal information from
it
5Amendment of section 31—Application of
Part
7Amendment of section 55—Licences,
authorities and permits
8Amendment of section
63—Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Controlled Substances (Poppy Cultivation)
Amendment Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Controlled Substances
Act 1984
After section 30 insert:
Part 4A—Licences to cultivate alkaloid poppies and
process poppy straw
Division 1—Preliminary
30A—Interpretation
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 30ZZG
;
associate has the same meaning given in
section 30B
;
Chief Executive means the Chief Executive of the Department
that is, under the Minister, responsible for the administration of the
Agricultural
and Veterinary Chemicals (South Australia) Act 1994
;
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;
criminal intelligence means information relating to actual or
suspected criminal activity (whether in this State or elsewhere) the disclosure
of which could reasonably be expected to prejudice criminal investigations, to
enable the discovery of the existence or identity of a confidential source of
information relevant to law enforcement or to endanger a person's life or
physical safety;
detention or seizure receipt means a receipt given in
accordance with
section 30ZC
or
section 30ZI
;
disqualified person means—
(a) a person who is under the age of 17 years unless the person is an
apprentice or trainee within the meaning of the
Training
and Skills Development Act 2008
; 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 South Australia) 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 South Australia) 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 training contract; 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 30J
or by a licensed processor under
section 30T
;
harvest and destruction order means an order made under
section 30ZM(3)
;
inspector means—
(a) a person authorised under
section 30Z
; and
(b) an inspector under Part IVB of the Drugs, Poisons and
Controlled Substances Act 1981 of Victoria; and
(c) a police officer;
inspector identification certificate means a certificate
issued to an inspector under
section 30ZA
;
licence holder means—
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 30F(2)
;
poppy processing licence means a licence issued under
section 30P(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;
risk management plan means a plan that forms part of a poppy
cultivation licence or a poppy processing licence;
seized material means any alkaloid poppies, poppy straw or
material derived from alkaloid poppies or poppy straw seized by an inspector
under
section 30ZH
;
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;
Tribunal means the South Australian Civil and Administrative
Tribunal established under the
South
Australian Civil and Administrative Tribunal Act 2013
.
30B—Meaning 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 (being the business to
which the application or 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; 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 (being the business to which the application or licence relates);
or
(c) is a relative of the applicant or the licence holder; or
(d) is in a position to exercise control or significant influence over the
conduct of the applicant or the licence holder.
(2) In subsection (1)—
domestic partner means a person who is a domestic partner
within the meaning of the
Family
Relationships Act 1975
, whether declared as such under that Act or not;
relative means a person who is—
(a) a spouse or domestic partner; or
(b) a parent; or
(c) a step-parent; or
(d) a sibling or step-sibling; or
(e) a child, step-child 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
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 Chief Executive 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;
spouse—a person is the spouse of another if they are
legally married.
30C—Matters to be considered—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 Chief Executive must not issue a licence under
this Part to an applicant unless the Chief Executive is satisfied
that—
(a) neither the applicant nor any associate of the applicant has been
found guilty in respect of a serious offence (whether in or outside South
Australia) 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 Chief Executive must not—
(a) renew a poppy cultivation licence of a licensed grower unless the
Chief Executive is satisfied that—
(i) neither the licensed grower nor any associate of the licensed grower
has been found guilty in respect of a serious offence (whether in or outside
South Australia) 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
Chief Executive is satisfied that—
(i) neither the licensed processor nor any associate of the licensed
processor has been found guilty in respect of a serious offence (whether in or
outside South Australia) 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 Chief Executive 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 South
Australia) 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 South Australia) 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 South Australia) 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
30D—Application 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
Chief Executive that the applicant is a fit and proper person to be given a
licence and—
(a) 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
(b) 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 Chief Executive reasonably requires to assist in assessing the
application.
30E—Chief Executive must investigate
application
(1) On receiving an application under
section 30D
the Chief Executive—
(a) must carry out all investigations and inquiries that the Chief
Executive 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 Chief Executive a recent police record check of the applicant or any
associate of the applicant.
(2) The Chief Executive must provide a copy of an application made under
section 30D
and any accompanying documents to the Commissioner of Police.
(3) The Commissioner of
Police must—
(a) inquire into and report to the Chief Executive on any matters
concerning the application that he or she believes are appropriate or reasonably
necessary; and
(b) inquire into and report to the Chief Executive on any matters
concerning the application that the Chief Executive requests; and
(c) within 28 days
of receiving the application from the Chief Executive, notify the Chief
Executive in writing of the Commissioner of Police's decision to support or
oppose the issuing of a licence and provide the reasons for the
decision.
(4) If the Chief Executive is notified under
subsection (3)(c)
that the Commissioner of Police opposes the issuing of a poppy cultivation
licence, the Chief Executive must not issue the licence.
30F—Determining an application
(1) After considering an application and any investigation under
section 30E
, the Chief Executive must determine the application within 60 days of
receiving the application.
(2) The Chief Executive
may issue a poppy cultivation licence to an applicant under
section 30D(1)
or
(2)
.
(3) The Chief Executive
may refuse to issue a poppy cultivation licence to an applicant under
section 30D(1)
or
(2)
.
(4) The Chief Executive must—
(a) notify the applicant in writing of the decision under
subsection (2)
; and
(b) if the Chief Executive refuses an application under
subsection (3)
, provide reasons for the decision.
30G—Terms 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;
(b) the specified premises at which activities authorised under the
licence may be carried out;
(c) the implementation and maintenance of satisfactory security and
surveillance measures to restrict access of unauthorised persons to crops and
harvested material;
(d) the keeping of records and other documents;
(e) the provision of information, records or other documents to the Chief
Executive 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 Chief Executive reasonably requires in
relation to the licence or the licensed activity;
(f) the disposal of harvested material and crop residue;
(g) the inspection, sampling, supervision and surveillance of seed of
alkaloid poppies, alkaloid poppies and poppy straw by an inspector;
(h) the destruction of alkaloid poppies, poppy straw and any material
derived from alkaloid poppies.
(7) A poppy cultivation licence issued under
section 30D(1)
is subject to the condition that unless otherwise with the approval of the
Chief Executive, 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.
30H—Poppy cultivation licence is not
transferable
A poppy cultivation licence is not transferable to another
person.
30I—Employee 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;
(b) to conduct measurements, analyses and extractions including extraction
of alkaloids from alkaloid poppies for chemical analyses at specified
premises;
(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.
30J—Employee identification certificate issued by
licensed grower
(1) The licensed grower must issue an employee identification certificate
to each employee 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).
30K—Application for renewal of
licence
(1) A licensed grower may apply to the Chief Executive for the renewal of
a poppy cultivation licence.
(2) A renewal application must be made to the Chief Executive 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 Chief Executive reasonably
requires to assess the application; and
(f) contain any prescribed particulars.
(4) A poppy cultivation licence may be renewed more than once.
30L—Chief Executive must investigate renewal
application
(1) On receipt of a renewal application under
section 30K
the Chief Executive—
(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 Chief Executive a recent police record check of the applicant or any
associate of the applicant.
(2) The Chief Executive must provide a copy of a renewal application made
under
section 30K
and any accompanying documents to the Commissioner of Police.
(3) The Commissioner of
Police must—
(a) inquire into and report to the Chief Executive on any matters
concerning the application that the Commissioner of Police believes are
appropriate or reasonably necessary; and
(b) inquire into and report to the Chief Executive on any matters
concerning the renewal application that the Chief Executive requests;
and
(c) within 28 days
of receiving the application from the Chief Executive notify the Chief Executive
in writing of the Commissioner of Police's decision to support or oppose the
renewal of a licence and provide the reasons for the decision.
(4) If the Chief Executive is notified under
subsection (3)(c)
that the Commissioner of Police opposes the renewal of a poppy cultivation
licence, the Chief Executive must not renew the relevant licence.
30M—Determining a renewal
application
(1) After considering a renewal application and any investigation under
section 30L
, the Chief Executive must determine the renewal application within
60 days of receiving it.
(2) The Chief Executive
may renew a poppy cultivation licence for a period not exceeding
3 years.
(3) The Chief Executive
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 Chief Executive, unless the licence is cancelled or suspended prior to the
expiry.
(5) The Chief Executive must—
(a) notify the applicant in writing of the decision under
subsection (2)
; and
(b) if the Chief Executive refuses to renew the poppy cultivation licence
under
subsection (3)
, provide reasons for the decision.
Division 3—Poppy processing
licence
30N—Application for poppy processing
licence
(1) A person may apply
to the Chief Executive 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 Chief Executive 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
Chief Executive that the applicant is a fit and proper person to be issued a
licence and—
(a) 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; or
(b) 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 Chief Executive reasonably requires to assist in assessing the
application.
30O—Chief Executive must investigate
application
(1) On receiving an application under
section 30N
, the Chief Executive—
(a) must carry out all investigations and inquiries that the Chief
Executive 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 Chief Executive a recent police record check of the applicant or any
associate of the applicant.
(2) The Chief Executive must provide a copy of an application made under
section 30N
and any accompanying documents to the Commissioner of Police.
(3) The Commissioner of
Police must—
(a) inquire into and report to the Chief Executive on any matters
concerning the application that the Commissioner of Police believes are
appropriate or reasonably necessary; and
(b) inquire into and report to the Chief Executive on any matters
concerning the application that the Chief Executive requests; and
(c) within 28 days
of receiving the application from the Chief Executive, notify the Chief
Executive in writing of the Commissioner of Police's decision to support or
oppose the issuing of a licence and provide the reasons for the
decision.
(4) If the Chief Executive is notified under
subsection (3)(c)
that the Commissioner of Police opposes the issuing of a poppy processing
licence, the Chief Executive must not issue the licence.
30P—Determining an application
(1) After considering an application and any investigation under
section 30O
, the Chief Executive must determine the application within 60 days of
receiving the application.
(2) The Chief Executive
may issue a poppy processing licence to an applicant under
section 30N(1)
or
(2)
.
(3) The Chief Executive
may refuse to issue a poppy processing licence to an applicant under
section 30N(1)
or
(2)
.
(4) The Chief Executive must—
(a) notify the applicant in writing of the decision under
subsection (2)
; and
(b) if the Chief Executive refuses an application under
subsection (3)
, provide reasons for the decision.
30Q—Terms 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;
(b) the implementation and maintenance of satisfactory security and
surveillance measures to restrict access of unauthorised persons to poppy
straw;
(c) the keeping of records and other documents;
(d) the provision of information, records or other documents to the Chief
Executive 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 Chief Executive reasonably requires in
relation to the licence or the licensed activity;
(e) the disposal of poppy straw;
(f) the inspection, supervision and surveillance of poppy straw by an
inspector.
(8) A poppy processing licence referred to in
section 30N(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.
30R—Poppy processing licence is not
transferable
A poppy processing licence is not transferable to another person.
30S—Employee 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;
(b) to process and possess poppy straw at specified premises;
(c) to transport, sell or supply poppy straw to a person who possesses a
Commonwealth licence to manufacture;
(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.
30T—Employee identification certificate issued by
licensed processor
(1) The licensed processor must issue an employee identification
certificate to each employee 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).
30U—Application for renewal of
licence
(1) A licensed processor may apply to the Chief Executive for the renewal
of a poppy processing licence.
(2) A renewal application must be made to the Chief Executive 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 Chief Executive reasonably
requires to assess the application; and
(g) contain any prescribed particulars.
(4) A poppy processing licence may be renewed more than once.
30V—Chief Executive must investigate renewal
application
(1) On receipt of a renewal application under
section 30U
, the Chief Executive—
(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 Chief Executive a recent police record check of the applicant or any
associate of the applicant.
(2) The Chief Executive must provide a copy of a renewal application made
under
section 30U
and any accompanying documents to the Commissioner of Police.
(3) The Commissioner of
Police must—
(a) inquire into and report to the Chief Executive on any matters
concerning the application that the Commissioner of Police believes are
appropriate or reasonably necessary; and
(b) inquire into and report to the Chief Executive on any matters
concerning the renewal application that the Chief Executive requests;
and
(c) within 28 days
of receiving the application from the Chief Executive, notify the Chief
Executive in writing of the Commissioner of Police's decision to support or
oppose the renewal of a licence and provide the reasons for the
decision.
(4) If the Chief Executive is notified under
subsection (3)(c)
that the Commissioner of Police opposes the renewal of a poppy processing
licence, the Chief Executive must not renew the licence.
30W—Determining a renewal
application
(1) After considering a renewal application and any investigation under
section 30V
, the Chief Executive must determine the renewal application within
60 days of receiving it.
(2) The Chief Executive
may renew a poppy processing licence for a period not exceeding
12 months.
(3) The Chief Executive
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 Chief Executive unless the licence is cancelled or suspended prior to the
expiry.
(5) The Chief Executive must—
(a) notify the applicant in writing of the decision under
subsection (2)
; and
(b) if the Chief Executive 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
30X—Amendment of licences
(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 Chief Executive
may exercise a power under
subsection (1)
—
(a) on the application
of the licensed grower or the licensed processor; or
(b) in the Chief Executive's discretion.
(3) The Chief Executive must determine an application made under
subsection (2)(a)
within 28 days of receiving the application.
(4) The Chief Executive 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.
30Y—Suspension or cancellation of
licences
(1) The Chief
Executive, 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 Chief Executive 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 Chief Executive 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 Chief Executive is satisfied that the licensed grower or the
licensed processor obtained the relevant licence by fraud, misrepresentation or
concealment of facts; or
(g) the Commissioner of Police requests suspension or cancellation on the
basis of criminal intelligence 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 Chief Executive must—
(a) notify the 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
30Z—Inspectors under this Part
(1) The Chief Executive, by instrument in writing, may authorise persons
to be inspectors for the purposes of all or any specified provisions of this
Part.
(2) The Chief Executive 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 Chief Executive, in writing, may vary or revoke the authorisation
of an inspector at any time.
30ZA—Identification
certificate
(1) The Chief Executive must issue an identification certificate to each
inspector (other than an inspector who is a police officer) 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 police officer is a reference to written evidence of
the fact that he or she is a police officer.
30ZB—General 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;
(b) inspect, count, examine or mark for identification any alkaloid poppy
or poppy straw in the place;
(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;
(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;
(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;
(f) submit any sample or specimen taken in accordance with this Part to a
laboratory or place approved by the Chief Executive 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.
30ZC—Procedure on seizing a document, thing or
taking a sample
(1) Subject to
section 30ZI
, 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 30ZB(1)(e)
the inspector must—
(a) divide the sample into 3 parts; and
(b) give 1 part to the licensed grower or the licensed processor, as
the case requires, and retain 1 part for examination and 1 part
untouched for future comparison.
30ZD—Power to use electronic equipment at
premises
(1) This section applies if—
(a) while acting under
section 30ZB
, 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.
(3) An inspector may require the licensed grower or the licensed processor
or an employee of the licensed grower or the licensed processor to provide the
inspector with any password, encryption key or other information required to
operate the equipment to access the information.
30ZE—Power 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.
30ZF—Inspector must not damage
equipment
An inspector must not operate equipment for a purpose set out in
section 30ZD
or
section 30ZE
unless the inspector believes, on reasonable grounds, that the operation
can be carried out without damage to the equipment.
30ZG—Inspector 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.
30ZH—Inspector 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 30ZI
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.
30ZI—Procedure on detaining or seizing alkaloid
poppies or poppy straw
(1) If an inspector detains or seizes any seized material under
section 30ZH
, 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 police officer, send a copy
of the detention or seizure receipt to the Chief Executive; and
(d) in the case of an inspector who is a police officer, send a copy of
the detention or seizure receipt to the Commissioner of Police and the Chief
Executive.
(2) If an inspector detains or seizes any seized material under
section 30ZH
, the inspector, with any assistance necessary, may take or send the seized
material to a place approved by the Chief Executive for it to be examined,
tested or stored.
(3) This section does not limit or prevent the exercise of any power by a
police officer to commence a proceeding in respect of compliance with this Part
in relation to any seized material
30ZJ—Chief Executive has power to dispose or deal
with seized alkaloid poppies or poppy straw
(1) This section applies if—
(a) the Chief Executive 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 Chief Executive and agreed that the Chief Executive may
deal with the seized material.
(2) In dealing with seized material to which this section applies, the
Chief Executive 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.
30ZK—Retention and return of seized alkaloid
poppies or poppy straw
(1) If an inspector seizes any seized material under
section 30ZH
, subject to
section 30ZJ
, the Chief Executive 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 Chief Executive.
(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 Chief Executive 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 30ZL
extending the period during which the seized material may be
retained.
30ZL—Magistrates Court may extend 3 month
period
(1) The Chief Executive
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 30ZH
; 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 Chief Executive 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.
30ZM—Forfeiture, harvest and destruction of
alkaloid poppies or poppy straw
(1) The Chief Executive may apply to the Magistrates Court for a harvest
and destruction order if the Chief Executive—
(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 Chief Executive to carry
out the harvest and destruction order; and
(b) authorise the Chief Executive to give any appropriate direction to
harvest or destroy the seized material (as the case requires) to which the order
relates.
30ZN—Recovery of costs
If the Chief Executive incurs any costs in carrying out a harvest and
destruction order the Chief Executive may recover those costs in any court of
competent jurisdiction as a debt due to the Crown.
30ZO—Inspector 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 1999
) 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 the
Local
Government Act 1999
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.
30ZP—Protection 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.
30ZQ—Power to issue expiation
notices
An inspector may give an expiation notice (under the
Expiation
of Offences Act 1996
) to a person who the inspector has reason to believe has committed a
prescribed offence.
30ZR—Expiation fee
The regulations may prescribe the expiation fees for prescribed offences
referred to in
section 30ZQ
.
Division 6—Offences
30ZS—Offence to fail to report the amendment or
cancellation of a contract
A licensed grower who holds a poppy cultivation licence under
section 30D(1)
must report to the Chief Executive within 3 business days any
amendment to a contract registered in the alkaloid poppy register that does
1 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.
Maximum penalty: $15 000.
30ZT—Offence to fail to report amendment or
cancellation
A licensed processor must inform the Chief Executive 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.
Maximum penalty: $15 000.
30ZU—Offence 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 Chief Executive within 7 business days.
Maximum penalty: $15 000.
(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 Chief Executive 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 South Australia 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 Chief Executive; 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 South Australia 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 Chief
Executive; or
(f) any information that the name of an associate of a licensed grower or
a licensed processor provided to the Chief Executive 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.
30ZV—Offence 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 30Y
, a person must surrender to the Chief Executive—
(a) the relevant licence; and
(b) any related document issued to the person.
Maximum penalty: $5 000.
30ZW—Offence 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.
Maximum penalty: $5 000.
(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.
Maximum penalty: $15 000 or imprisonment for 12 months, 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.
Maximum penalty: $5 000.
(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.
Maximum penalty: $15 000 or imprisonment for 12 months, or
both.
30ZX—Offence 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.
Maximum penalty: $15 000.
(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.
Maximum penalty: $15 000.
(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.
Maximum penalty: $15 000.
(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.
Maximum penalty: $15 000.
30ZY—Offence 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.
Maximum penalty: $10 000.
(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.
Maximum penalty: $10 000.
30ZZ—Offence 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.
Maximum penalty: $10 000.
(2) A licensed processor must not employ a disqualified person in the
business conducted under the poppy processing licence.
Maximum penalty: $10 000.
30ZZA—Offence 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.
Maximum penalty: $10 000.
(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.
Maximum penalty: $10 000.
30ZZB—Employee 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.
Maximum penalty: $10 000.
(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.
Maximum penalty: $10 000.
(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.
Maximum penalty: $10 000.
(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.
Maximum penalty: $10 000.
(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)
.
Maximum penalty: $10 000.
(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)
.
Maximum penalty: $10 000.
30ZZC—Criminal 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.
30ZZD—Offence 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 30J(2)
.
Maximum penalty: $10 000.
(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 30T(2)
.
Maximum penalty: $10 000.
30ZZE—Offence 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.
Maximum penalty: $15 000.
(2) A person must not, without reasonable excuse, fail to comply with any
direction, requirement or order of an inspector under this Part.
Maximum penalty: $15 000.
30ZZF—Offence 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 Chief Executive or an inspector.
Maximum penalty: $15 000.
Division 7—Division 7—Alkaloid Poppy
Register
30ZZG—Alkaloid poppy register
(1) The Chief Executive 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 Chief Executive;
(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.
30ZZH—Request to register a
contract
(1) The Chief
Executive, 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 Chief Executive must, within 7 days—
(a) register the contract; or
(b) refuse to register
the contract.
(3) On making a decision under
subsection (2)
the Chief Executive 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)
.
30ZZI—Access to the alkaloid poppy register
restricted
(1) The Chief Executive 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 Chief
Executive.
(2) The Chief Executive must ensure that personal information in the
alkaloid poppy register is only disclosed in accordance with this Act.
30ZZJ—Person 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.
Maximum penalty: $15 000 or imprisonment for 12 months, or
both.
(2) The Chief Executive 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 Chief Executive 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.
30ZZK—Delegation
(1) The Chief Executive may, by instrument in writing, delegate a power or
function under this Part—
(a) to a particular person; or
(b) to the person for the time being performing particular duties or
holding or acting in a specified position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act personally in
a matter; and
(c) is revocable at will.
Division 8—Review
30ZZL—Review by Tribunal
(1) A person may apply
to the Tribunal under section 34 of the
South
Australian Civil and Administrative Tribunal Act 2013
for review of a decision of the Chief Executive—
(a) to refuse to issue a poppy cultivation licence or a poppy processing
licence to that person; or
(b) to refuse to renew a poppy cultivation licence or a poppy processing
licence held by that person; or
(c) to refuse to register a contract between a licensed grower and a
licensed processor in the alkaloid poppy register; or
(d) to suspend, cancel or amend a poppy cultivation licence or a poppy
processing licence held by that person.
(2) Subject to
subsection (3)
, an application for review must be made within 1 month of the making
of the relevant decision of the Chief Executive.
(3) If the reasons
of the Chief Executive are not given in writing at the time of making the
decision and the person (within 1 month of the making of the decision)
requires the Chief Executive to state the reasons in writing, the time for
commencing proceedings before the Tribunal runs from the time at which the
person receives the written statement of those reasons.
Division 9—Miscellaneous
30ZZM—Criminal intelligence
(1) Information that is classified by the Commissioner of Police as
criminal intelligence for the purposes of this Part may not be disclosed to any
person other than the Chief Executive, the Minister, the Tribunal, a court or a
person to whom the Commissioner of Police authorises its disclosure.
(2) If the Commissioner of Police—
(a) opposes the issuing or renewal of a poppy cultivation licence or a
poppy processing licence; or
(b) requests the suspension or cancellation of a poppy cultivation licence
or a poppy processing licence,
on the basis of information that is classified by the Commissioner of
Police as criminal intelligence, the Chief Executive is not (despite any other
provision of this Part) required to provide any grounds or reasons for a
decision to refuse to issue or renew the licence or to suspend or cancel the
licence (as the case may be) other than that the decision was made in the public
interest.
(3) In any proceedings under this Part, the Tribunal or a
court—
(a) must, on the application of the Commissioner of Police, take steps to
maintain the confidentiality of information classified by the Commissioner of
Police as criminal intelligence, including steps to receive evidence and hear
argument about the information in private in the absence of the parties to the
proceedings and their representatives; and
(b) may take evidence consisting of or relating to information so
classified by the Commissioner of Police by way of affidavit of a police officer
of or above the rank of superintendent.
(4) The
Commissioner of Police may not delegate the function of classifying information
as criminal intelligence for the purposes of this Part except to a Deputy
Commissioner or Assistant Commissioner of Police.
30ZZN—Regulations
(1) Without limiting section 63, the Governor 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 South Australia;
(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 Chief Executive 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 $15 000 for any
contravention of or failure to comply with the regulations made under this
Part.
(2) Regulations made for the purposes of 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 Chief Executive
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 Chief Executive.
5—Amendment
of section 31—Application of Part
Section 31(1)(ag)—delete paragraph (ag) and substitute:
(ag) the cultivation or sale of a plant, the manufacture, sale, supply,
administration or possession of a substance or the sale, supply or possession of
equipment by a person who is acting in accordance with a licence or permit
issued under this Act; or
Before section 50 insert:
49—Application of Part
This Part does not apply in relation to Part 4A.
Note—
See Part 4A Division 5
7—Amendment
of section 55—Licences, authorities and permits
Section 55—after subsection (8) insert:
(9) This section does not apply in relation to a licence under
Part 4A.
8—Amendment
of section 63—Regulations
Section 63(2)—delete "section 33LA" and substitute:
Part 4A or section 33LA