Industrial Hemp Act 2017

This

Act may be cited as the Industrial

Hemp Act 2017.

This

Act will come into operation on a day to be fixed by proclamation.

In this Act—

ACC means the Australian Crime Commission established under the

Australian

Crime Commission Act 2002 of the Commonwealth;

certified hemp seed means seed certified, in accordance with the regulations, as seed that will typically produce hemp plants with a concentration of THC in the leaves and flowering heads of not more than 0.5%;

Chief

Executive means the Chief Executive of the Department that is, under a

Minister, responsible for the administration of the Agricultural and Veterinary Chemicals (South Australia) Act 1994;

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;

cultivate means—

plant a seed, seedling or cutting of the plant or transplant the plant; or

nurture, tend or grow the plant; or

harvest the plant (including pick any part of the plant or separate any resin or other substance from the plant); or

dry the harvested plant or part of the plant; or

take

part in the process of cultivation of the plant;

drug of dependence means a poison within the meaning of the Controlled

Substances Act 1984 declared by the regulations under that Act to be a drug of dependence;

drug related offence means—

an indictable offence involving possession, or cultivation of, or trafficking in, a drug of dependence; or

an indictable offence under the Controlled

Substances Act 1984;

or

an indictable offence under the law of another jurisdiction involving possession, or cultivation of, or trafficking in, a drug of dependence; or

an offence of a kind prescribed by the regulations;

hemp means a plant, or any part (including the seed) of a plant, of the genus cannabis;

industrial hemp means hemp that—

has been grown from certified hemp seed; and

has a concentration of THC in the leaves and flowering heads of not more than 1%, and includes the seed of such a plant and any product derived from any such plant;

industrial hemp licence—see section 8(1);

industrial hemp register means the register established under section 26;

inspector means—

a person appointed as an inspector under section 18;

or

a police officer;

licence means a licence under this Act;

licence holder means—

the holder of an industrial hemp licence; or

the holder of a special licence;

premises means any land, building, structure, vehicle, vessel or aircraft;

sell means sell by wholesale or retail and includes the following:

agree to sell;

offer or expose for sale;

keep, or possess, for sale;

deal in, barter or exchange;

send, forward, deliver or receive for sale;

authorise, direct, cause or permit the doing of any matter in paragraphs

to (e);

special licence—see section 8(2);

supply includes the following:

deliver, sell, trade, give or distribute, whether for valuable consideration or not;

offer or agree to supply;

cause or permit to supply;

hold in possession for the purpose of supply;

produce or pack for the purpose of supply;

THC means tetrahydrocannabinol;

Tribunal means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013.

For the purposes of this Act, a person who is of or above the age of

18 years is an associate of an applicant for a licence or a licence holder if the person—

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

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).

In subsection (1)—

relevant financial interest in relation to a business means—

any share in the capital of the business; or

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—

the position of director, partner, trustee, manager, secretary or other executive position, however designated; and

any other position 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—

to participate in any directorial, managerial or executive decision; or

to elect or appoint any person to any relevant position.

Information that is classified by the Commissioner of Police as criminal intelligence for the purposes of this Act 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.

If the Commissioner of Police—

opposes the issuing or renewal of a licence; or

requests the suspension or cancellation of a 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 Act) 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.

In any proceedings under this Act, the Tribunal or a court—

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

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.

The

Commissioner of Police may not delegate the function of classifying information as criminal intelligence for the purposes of this Act except to a Deputy Commissioner or Assistant Commissioner of Police.

Nothing in any other Act or law affects the provisions of this Act or renders unlawful anything done in accordance with this Act.

A provision of this Act has no effect to the extent of any inconsistency with the Commonwealth Act (and this Act is not to be taken to authorise the performance of a function or the exercise of a power under this Act that would result in operational inconsistency of this Act with the Commonwealth Act).

In this section—

Commonwealth

Act means the Narcotic

Drugs Act 1967 of the Commonwealth.

Note—

See section 7A of the Commonwealth Act in relation to its interaction with State and Territory laws.

A person may apply to the Chief Executive for an industrial hemp licence which authorises a person to possess, cultivate, process or supply industrial hemp for 1 or more of the following purposes specified in the licence:

commercial production;

use in a manufacturing process;

food production;

scientific research, instruction, analysis or study;

any other purpose approved by the Chief Executive.

A person may apply to the Chief Executive for a special licence which authorises a person to possess, cultivate, process or supply hemp, that is not industrial hemp, for the purpose of scientific research, instruction, analysis or study.

An application under subsection (1) or (2) must—

be in a form approved by the Chief Executive; and

be accompanied by the prescribed fee; and

contain information and be accompanied by such other records as the Chief

Executive may require to determine the application.

On receiving an application under section 8, the Chief Executive may carry out such investigations and inquiries as the Chief Executive considers necessary to determine the application.

The

Chief Executive may, by notice in writing, require an applicant to—

provide information, and produce such documents, as are relevant to the investigation of the application as specified in the notice; and

provide the Chief Executive with such authorities and consents as the Chief

Executive directs to enable the Chief Executive to obtain financial or other confidential information concerning the applicant from other persons; and

submit to the Chief Executive a criminal history report (such as a National

Police Certificate) relating to the applicant provided by South

Australia Police or the ACC or an ACC accredited agency or broker, and, if a requirement made under this section is not complied with, the

Chief Executive may refuse to determine the application.

The

Chief Executive must provide a copy of each application under section 8 and any accompanying information and documents to the Commissioner of Police.

The

Commissioner of Police must—

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

inquire into and report to the Chief Executive on any matters concerning the application that the Chief Executive requests; and

within

60 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 the licence and provide the reasons for the decision.

If the Chief Executive is notified under subsection (4)(c) that the Commissioner of Police opposes the issuing of a licence, the Chief Executive must not issue the licence.

Before determining an application for a special licence under section 8(2), the Chief Executive must consult with the Minister responsible for the administration of the Controlled

Substances Act 1984.

The

Executive is satisfied that—

neither the applicant nor any associate of the applicant has been found guilty of a drug related offence; and

the applicant and each associate of the applicant are fit and proper persons to be concerned in or associated with the cultivation of hemp or industrial hemp (as the case requires); and

the applicant meets the prescribed requirements (if any).

For the purpose of determining whether an applicant or a licence holder is a fit and proper person under this Act, the Chief Executive may consider any of the following:

the character, honesty and integrity of—

the applicant or licence holder; and

the associates of the applicant or licence holder; and

the relatives of the applicant or licence holder; and

any person in a position to exercise control or significant influence over the conduct of the applicant or licence holder;

whether the applicant or licence holder or any associate or relative of the applicant or licence holder has been found guilty by a court (whether in or outside South Australia) of any offence;

whether the applicant or licence holder or any associate of the applicant or licence holder has a history of non‑compliance with the Act;

in the case of an applicant or licence holder that is not a natural person—whether the applicant or licence holder has a satisfactory ownership, trust or corporate structure;

the financial circumstances of the applicant or licence holder, including any matter that may significantly limit the applicant or licence holder's capacity to meet obligations in conducting activities under the licence in compliance with the terms and conditions applying to the licence.

In this section—

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 spouse or domestic partner; or

a parent; or

a step‑parent; or

a sibling or step‑sibling; or

a child, step‑child or adopted child;

spouse—a person is the spouse of another if they are legally married.

After considering an application and carrying out an investigation under section 9, the Chief Executive must determine the application by—

granting the application and issuing an industrial hemp licence or a special licence to the applicant; or

refusing the application.

The

Chief Executive must—

notify the applicant in writing of the decision under subsection (1);

and

if the Chief Executive refuses an application under subsection (1)(b), provide reasons for the decision.

A licence has effect for a period of 5 years from the day on which it is granted, or such shorter period as specified in the licence, unless it is sooner suspended or cancelled.

A licence is subject to the prescribed terms and conditions (if any).

The

Chief Executive may, at any time by notice in writing to the holder of a licence—

impose a term or condition on a licence; and

vary, suspend or revoke a term or condition of a licence, and such a term, condition, variation, suspension or revocation takes effect when notice is given to the holder of a licence or on such later date as specified in the notice.

The

Chief Executive may exercise a power under subsection (3)—

on the application of the holder of a licence; or

in the Chief Executive's discretion.

An application by the holder of a licence under subsection (4)(a) must—

be in writing; and

be accompanied by the relevant prescribed fee (if any); and

be accompanied by any prescribed particulars.

Without limiting subsection (3), the conditions of a licence may require—

the keeping of records and other documents; and

the provision of information, records or other documents to the Chief

Executive relating to—

the activities carried out under the licence; or

the source of seeds from which hemp or industrial hemp is cultivated; or

a change in the position of director, trustee, partner, manager, secretary or other executive position, however designated, or the structure of the business to which the licence relates; or

any other matter that the Chief Executive reasonably requires in relation to the licence or the licensed activity.

A licence is not transferrable.