Poppy Industry Act 2016

This Act is the Poppy Industry Act 2016.

This Act commences on a day or days to be appointed by proclamation.

The object of this Act is to facilitate and regulate the cultivation of alkaloid poppies and the receipt and supply of material derived from alkaloid poppies for use in manufacturing or producing therapeutic goods and in scientific research, analysis, education and training.

That object is to be achieved by—

establishing a scheme of licences and permits to authorise activities relating to alkaloid poppies or material derived from alkaloid poppies, and

ensuring that the authorised activities are limited to activities supporting the manufacture or production of therapeutic goods, whether in or outside Australia, or scientific research, analysis, education or training, and

regulating the authorised activities in a manner designed—

to keep alkaloid poppies and certain material derived from alkaloid poppies secure and ensure that they are not diverted for unlawful purposes, and

to minimise the risk of environmental harm or harm to humans arising from the activities.

In this Act—

alkaloid poppy means a plant of—

a class specified in the regulations, or

if the regulations do not specify a class—the species Papaver bracteatum or Papaver somniferum.

alkaloid poppy material means—

poppy straw, however prepared or treated, or

any other thing derived from alkaloid poppies declared by the regulations to be alkaloid poppy material.

amend a poppy licence or poppy permit includes—

vary or revoke a condition of the licence or permit, and

impose a further condition on the licence or permit.

authorised officer means—

a person appointed as an authorised officer under Part 3, or

a police officer.

corporation includes any body corporate.

criminal intelligence means—

information classified by the Commissioner of Police as criminal intelligence within the meaning of the Crimes (Criminal Organisations Control) Act 2012, or

information declared by the Supreme Court under that Act to be criminal intelligence, or

other information of a kind specified in the regulations.

cultivate alkaloid poppies means—

sow seeds of alkaloid poppies, or

plant, grow, tend or nurture alkaloid poppies, or

graft, divide or transplant alkaloid poppies, or

any other activity declared by the regulations to comprise cultivating alkaloid poppies.

cultivation licence—see section 7 (1) (a).

designated person for a poppy licence or poppy permit means—

the holder of the licence or permit, or

a person employed or engaged by the holder of the licence or permit for the activities authorised by the licence or permit, or

a person who is a designated person for a related licence or permit.

director of a corporation includes a person occupying or acting in the position of director or member of the governing body of the corporation, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position.

fit and proper person—see section 5.

government sector agency has the same meaning as in the Government Sector Employment Act 2013.

government sector employee means an employee of a government sector agency.

harvest alkaloid poppies includes any activity declared by the regulations to comprise harvesting of alkaloid poppies.

interstate poppy licence means a licence or other form of authority under a law of another State or Territory declared by the regulations to correspond to a poppy licence.

interstate processing licence means a licence or other form of authority under a law of another State or Territory declared by the regulations to correspond to a processing licence.

manufacturing, export or research licence means—

a licence under the Narcotic Drugs Act 1967 of the Commonwealth, or the Therapeutic Goods Act 1989 of the Commonwealth, that authorises the manufacture of a drug or therapeutic goods from alkaloid poppy material, or

a licence under the Customs Act 1901 of the Commonwealth that authorises the export of alkaloid poppy material, or

a licence or authority under the Poisons and Therapeutic Goods Act 1966, or under a corresponding law of another State or Territory, that authorises the manufacture of a drug or therapeutic goods from alkaloid poppy material, or

a licence or authority under the law of the Commonwealth or a State or Territory that authorises the use of alkaloid poppies or alkaloid poppy material in scientific research, analysis, education or training, or

any other licence or form of authority declared by the regulations to be a manufacturing, export or research licence.

poppy licence means a cultivation licence or processing licence.

poppy permit—see section 7 (1) (c).

poppy straw means the upper parts of alkaloid poppies (including the stems and capsules) that are harvested.

processing licence—see section 7 (1) (b).

prohibited drug has the same meaning as in the Drug Misuse and Trafficking Act 1985.

prohibited plant has the same meaning as in the Drug Misuse and Trafficking Act 1985.

related licence or permit—a poppy licence or poppy permit is related to another poppy licence or poppy permit if an authorisation attaches or will attach to the same alkaloid poppies or alkaloid poppy material under both of the licences, both of the permits or both the licence and the permit.

Secretary means the Secretary of the Department that is responsible under the Minister for the administration of this Act.

supply includes—

sale and any other form of supply, and

offer to sell or supply,

but does not include export from Australia.

therapeutic goods has the same meaning as in the Therapeutic Goods Act 1989 of the Commonwealth.

transport means transport by road, rail, air or sea (other than only on or above private land).

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Notes included in this Act do not form part of this Act.

A corporation is not a fit and proper person to hold a poppy licence or poppy permit if—

the corporation has, in the previous 10 years, been convicted of a serious offence, whether committed under the law of New South Wales or the law of another jurisdiction, or

the corporation is being wound up or is under official management or in receivership, or

a director of the corporation would not, if the director were the applicant, be a fit and proper person to hold the poppy licence or poppy permit.

An individual is not a fit and proper person to hold a poppy licence or poppy permit if the person—

has, in the previous 10 years, been convicted of a serious offence, whether committed under the law of New South Wales or the law of another jurisdiction, or

is, or has been within the last 5 years, an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth, or

has, within the last 5 years, been a director of a corporation that has been wound up for the benefit of creditors—

when the corporation was being wound up, or

within 6 months before the commencement of the winding up, or

is, or has been within the last 5 years, disqualified from managing corporations under Part 2D.6 of Chapter 2D of the Corporations Act 2001 of the Commonwealth.

In assessing whether a person is a fit and proper person to hold a poppy licence or poppy permit, the Secretary may have regard to—

the character, reputation and financial background of the person and the person’s close associates, and

for a corporation—its corporate structure.

For the purposes of this section, 2 persons are close associates if—

one is a spouse, de facto partner, parent, child, brother or sister of the other, or

they live in the same household, or

they are in partnership, or

they are related bodies corporate (within the meaning of the Corporations Act 2001 of the Commonwealth), or

one is a corporation and the other is a director, manager, secretary or public officer of the corporation, or

one is a corporation (other than a public company whose shares are listed on a stock exchange) and the other is a shareholder in the corporation, or

one is a trustee of a trust and the other is a beneficiary of the trust or, in the case of a discretionary trust, an object of the trust, or

one has a right to participate, or participates, (otherwise than as a shareholder in a corporation) in income or profits derived from a business conducted by the other, or

one is in a position to exercise, or exercises, control or significant influence over the conduct of the other.

Without limiting the matters that may be considered under subsection (3), the following matters are relevant to a person’s character, reputation and financial background—

whether the person has been found guilty of a serious offence, whether committed under the law of New South Wales or the law of another jurisdiction,

whether the person has been found guilty of an offence against—

the Narcotic Drugs Act 1967 of the Commonwealth or regulations under that Act, or

the Drug Misuse and Trafficking Act 1985 or regulations under that Act or a corresponding law of another jurisdiction, or

any other law specified in the regulations,

whether the Secretary is satisfied that the person has contravened (whether or not the person has been prosecuted for or convicted of an offence arising out of the contravention)—

this Act or the regulations or a corresponding law of another jurisdiction, or

the Poisons and Therapeutic Goods Act 1966 or regulations under that Act or a corresponding law of another jurisdiction, or

the Therapeutic Goods Act 1989 of the Commonwealth or regulations under that Act, or

any other law specified in the regulations,

whether the person is or has been suspended or disqualified from practising or carrying on a relevant occupation, trade or business under a law of the Commonwealth or a State or Territory,

any other matters specified in the regulations.

For the purposes of this section, the following offences, whether committed under the law of New South Wales or the law of another jurisdiction, are serious offences—

an offence involving theft, dishonesty, fraud or violence that would, if committed in New South Wales, be an indictable offence,

an offence involving alkaloid poppies, alkaloid poppy material, prohibited plants, prohibited drugs, medicines, poisons or therapeutic goods that would, if committed in New South Wales, be an indictable offence,

an offence that would, if committed in New South Wales, be punishable under a law of New South Wales by imprisonment for life or for a term of 5 years or more or by a fine of $500,000 or more,

an offence committed under a law of the Commonwealth that is punishable by imprisonment for life or for a term of 5 years or more or by a fine of $500,000 or more.

A person must not undertake, or take part in, any of the following activities except as authorised by a poppy licence or poppy permit—

cultivating or harvesting alkaloid poppies,

conducting scientific research, analysis, education or training using alkaloid poppies or alkaloid poppy material,

receiving alkaloid poppies or alkaloid poppy material,

preparing or treating alkaloid poppy material,

storing alkaloid poppies or alkaloid poppy material,

supplying alkaloid poppies or alkaloid poppy material,

transporting alkaloid poppies or alkaloid poppy material.

Maximum penalty—

in the case of a corporation—500 penalty units, or

in the case of an individual—100 penalty units or imprisonment for 1 year, or both.

Note.

An offence against this section is an executive liability offence—see section 31.

Nothing in this section renders unlawful the storage of alkaloid poppies or alkaloid poppy material cultivated, harvested or received by a licensee under a poppy licence, or the preparation or treatment of such alkaloid poppy material, to the extent that the storage, preparation or treatment is reasonably necessary for the purposes of an interstate poppy licence or manufacturing, export or research licence held by the licensee.

The following classes of licence or permit may be granted under this Act—

cultivation licence—a licence that authorises the licensee, as specified in the licence—

to cultivate and harvest alkaloid poppies, and

to prepare and treat alkaloid poppy material harvested under the licence, and

to conduct scientific research, analysis, education or training using alkaloid poppies cultivated or alkaloid poppy material harvested under the licence, and

to supply alkaloid poppies cultivated, or alkaloid poppy material harvested, under the licence to a person who holds a processing licence or an interstate processing licence, and

to store and transport alkaloid poppies and alkaloid poppy material as reasonably necessary for a purpose authorised by the licence,

processing licence—a licence that authorises the licensee, as specified in the licence—

to receive alkaloid poppies or alkaloid poppy material, and

to prepare and treat alkaloid poppy material received under the licence, and

to conduct scientific research, analysis, education or training using alkaloid poppies or alkaloid poppy material received under the licence, and

to supply alkaloid poppies or alkaloid poppy material received under the licence to a person who holds a poppy licence, interstate poppy licence or manufacturing, export or research licence, and

to store and transport alkaloid poppies and alkaloid poppy material as reasonably necessary for a purpose authorised by the licence,

poppy permit—a permit that authorises the holder—

to transport alkaloid poppies or alkaloid poppy material in New South Wales, or

to carry out activities of a kind specified in the regulations involving alkaloid poppies or alkaloid poppy material.

A poppy licence—

authorises the receipt and supply of alkaloid poppies or alkaloid poppy material, and the manufacture or production of a prohibited drug, in the course of—

laboratory or other testing reasonably necessary for an activity authorised by the licence, including chemical analysis of the levels of alkaloids in alkaloid poppies cultivated, or alkaloid poppy material harvested or received, under the licence, or investigation of a problem incurred in undertaking the activity, or

scientific research, analysis, education or training authorised by the licence, and

does not otherwise authorise the manufacture, production or possession of a prohibited drug, and

Note.

This means that a poppy licence does not authorise alkaloid poppy material to be subjected to a process of refinement, concentration, extraction or reaction in order to extract or produce a prohibited drug from the alkaloid poppy material or from an extract from the alkaloid poppy material.

does not authorise the supply of a prohibited drug.

A poppy permit does not authorise the manufacture, production, supply or possession of a prohibited drug.

Authorisation under a poppy licence or poppy permit extends to all persons employed or engaged by the holder of the licence or permit to carry on the activities authorised by the licence or permit while acting within the scope of their employment or engagement.

A cultivation licence is subject to the following conditions—

only alkaloid poppies of a class specified in the licence may be cultivated,

alkaloid poppies may only be cultivated on land, or at premises, specified in the licence,

alkaloid poppy material may only be stored, prepared or treated on land, or at premises, specified in the licence,

the area of land on which alkaloid poppies are planted at any one time must not exceed the area specified in the licence,

before cultivation of alkaloid poppies is commenced in any season, arrangements must be in place for the use of all the plants cultivated and all the alkaloid poppy material harvested from the plants so cultivated for one or more of the following purposes—

for the purposes of scientific research, analysis, education or training under the licence,

for supply to a person who holds a processing licence or an interstate processing licence,

for use under an interstate poppy licence, or manufacturing, export or research licence, held by the licensee,

if an arrangement referred to in paragraph (e) is altered or ceases to be in effect, the licensee must, within 3 days after becoming aware of that fact, give the Secretary notice of the alteration or cessation in the form required by the Secretary,

a risk management plan for the activities authorised by the licence that complies with requirements specified by the Secretary and has been approved by the Secretary must be implemented,

reasonable steps must be taken to prevent a person from entering or remaining in an area where there are alkaloid poppies or alkaloid poppy material unless the person is an authorised officer or a designated person or a person accompanied by a designated person,

reasonable steps must be taken to remove or treat any residue of material derived from alkaloid poppies after harvesting, after moving alkaloid poppy material, and as otherwise reasonably required, to avoid unintended seeding or cultivation of alkaloid poppies,

if the licence authorises the conduct of scientific research, analysis, education or training—a person with appropriate scientific qualifications and experience must be responsible for the conduct of the research, analysis, education or training.

Note.

See section 11 for other conditions of licence.

A processing licence is subject to the following conditions—

the quantity of alkaloid poppy material received must not exceed the quantity specified in the licence,

alkaloid poppy material may only be stored, prepared or treated on land, or at premises, specified in the licence,

before the receipt, preparation or treatment of alkaloid poppies or alkaloid poppy material, arrangements must be in place for the use of all the alkaloid poppies and alkaloid poppy material for one or more of the following purposes—

for use in scientific research, analysis, education or training to be conducted under the licence,

for use under an interstate poppy licence, or manufacturing, export or research licence, held by the licensee,

for supply to another person who holds a poppy licence, interstate poppy licence or manufacturing, export or research licence,

if an arrangement referred to in paragraph (c) is altered or ceases to be in effect, the licensee must, within 3 days after becoming aware of that fact, give the Secretary notice of the alteration or cessation in the form required by the Secretary,

a risk management plan for the activities authorised by the licence that complies with requirements specified by the Secretary and has been approved by the Secretary must be implemented,

reasonable steps must be taken to prevent a person from entering or remaining in an area where there are alkaloid poppies or alkaloid poppy material unless the person is an authorised officer or a designated person or a person accompanied by a designated person,

reasonable steps must be taken to remove or treat any residue of material derived from alkaloid poppies after moving alkaloid poppy material, and as otherwise reasonably required, to avoid unintended seeding or cultivation of alkaloid poppies,

if the licence authorises the conduct of scientific research, analysis, education or training—a person with appropriate scientific qualifications and experience must be responsible for the conduct of the research, analysis, education or training.

Note.

See section 11 for other conditions of licence.

A poppy permit that authorises the holder to transport alkaloid poppies or alkaloid poppy material is subject to the following conditions—

the transport may only take place on the occasion or occasions specified in the permit,

the transport must only be from and to the places specified in the permit,

reasonable steps must be taken to prevent a person from accessing alkaloid poppies or alkaloid poppy material during transit unless the person is an authorised officer or a designated person or a person accompanied by a designated person.

Note.

See section 11 for other conditions of permit.

A poppy licence or poppy permit is also subject to the following conditions—

a person must not be employed or engaged in activities under the licence or permit unless the person has been subjected to the checks required by the regulations and meets criteria specified in the regulations,

subject to the regulations, each person employed or engaged in activities under the licence or permit—

must be issued with an identification card that identifies the licence or permit and displays the person’s name and date of birth and a recent photograph of the person and complies with any other requirements of the regulations, and

must, while employed or engaged in activities under the licence or permit, carry on his or her person the identification card,

the theft, loss or apparent unauthorised interference with alkaloid poppies or alkaloid poppy material to which the licence or permit relates must be reported immediately to a police officer and the Secretary,

the holder of the licence or permit must immediately inform the Secretary by written notice if a licence or other authority held by the person under Commonwealth, State or Territory law that regulates activities involving alkaloid poppies, alkaloid poppy material, prohibited plants, prohibited drugs, medicines, poisons or therapeutic goods is suspended, cancelled or amended or proceedings are commenced in which the licence or authority may be suspended, cancelled or amended,

the holder of the licence or permit must inform the Secretary by written notice within 7 days after any of the following occurs—

the holder changes the holder’s name, address or contact details as previously notified to the Secretary,

for a corporation—

a person ceases to be or commences to be a director of the corporation, or

a director changes the director’s name, address or contact details as previously notified to the Secretary,

the holder becomes aware of any other factor that may affect whether the person is a fit and proper person to hold the licence or permit,

other conditions specified by the Secretary, which may, without limitation, include conditions specifying—

surveillance and security measures that must be complied with, and

matters relating to the preparation or treatment of alkaloid poppy material, and

records that must be kept, and

returns that must be provided to the Secretary,

any other conditions set out in the regulations.

If a condition of a poppy licence or poppy permit is contravened, the holder of the licence or permit is guilty of an offence.

Maximum penalty—

in the case of a corporation—500 penalty units, or

in the case of an individual—100 penalty units or imprisonment for 1 year, or both.