2008
2008
2016-06-07
act
government
publicgeneral
act.reprint
act-2013-095
allinforce
2008-05-07
2008-05-07
0
2008
none
act-2008-058
3be858f9-3f16-4516-b94b-8f314952a938
83c23862-2479-4a2e-82f2-266fc4f6df63
Does not include amendments
by:
Statute Law
(Miscellaneous Provisions) Act 2016 No 27 (not commenced
— to commence on 8.7.2016)
An Act to authorise and regulate the cultivation
and supply of low-THC hemp for commercial production and other legitimate
uses; to amend the Drug Misuse and Trafficking Act
1985; and for other purposes
Part 1Preliminary
1Name of
Act
This Act is the Hemp Industry Act
2008.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation, except as provided by subsection
(2).
(2)
Section 3 and Schedules 1 and 2.1 [1] and [3]
commence on the date of assent to this Act.
3Definitions
(1)
In this Act:
close
associate—see section 4.
corresponding authority means an
authority issued under a corresponding law that, in the opinion of the
Director-General, is similar to a licence under this Act.
corresponding law means a law of
another Australian jurisdiction that is declared by the regulations to be a
corresponding law for the purposes of this Act.
cultivate includes grow, harvest or
produce.
Department means the Department of
Industry and Investment.
Director-General means the
Director-General of the Department.
drug
related offence means an indictable offence under the
Drug Misuse and Trafficking Act 1985 or
under a corresponding law.
exercise a function includes perform
a duty.
function includes a power, authority
or duty.
inspector means a person appointed
by the Director-General under section 18.
licence means a licence under this
Act.
low-THC
hemp means any plant of the genus Cannabis, by whatever name
that plant may be called, that has a concentration of THC in its leaves and
flowering heads of no more than 1%, and includes the seed of any such plant
and any product (such as oil or fibre) derived from any such
plant.
premises includes:
(a)
a building or structure, or
(b)
land or a place (whether built on or not),
or
(c)
a vehicle, vessel or
aircraft.
records includes plans,
specifications, maps, reports, books and other documents (whether in writing,
in electronic form or otherwise).
sell includes sell whether by
wholesale or retail or dispose of by barter or exchange, and also includes
dealing in, agreeing to sell, or offering or exposing for sale, or keeping or
having in possession for sale, or sending, forwarding, delivering or receiving
for sale or on sale, or authorising, directing, causing, suffering, permitting
or attempting any of those acts or things.
supply includes sell and distribute,
and also includes agreeing to supply, or offering to supply, or keeping or
having in possession for supply, or sending, forwarding, delivering or
receiving for supply, or authorising, directing, causing, suffering,
permitting or attempting any of those acts or things.
THC means
tetrahydrocannabinol.
(2)
Notes included in this Act do not form part of
this Act.
s 3: Am 2010 No 59,
Sch 2.43.
4Meaning of “close
associate”
(1)
For the purposes of this Act, a person is a
close
associate of an applicant for, or the holder of, a licence
if the person:
(a)
holds or will hold any relevant financial
interest, or is or will be entitled to exercise any relevant power (whether in
his or her own right or on behalf of any other person), in the business of the
licence applicant or holder, and by virtue of that interest or power is or
will be able (in the opinion of the Director-General) to exercise a
significant influence over or with respect to the conduct of that business,
or
(b)
holds or will hold any relevant position, whether
in his or her own right or on behalf of any other person, in the business of
the licence applicant or holder.
(2)
In this section:
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, whether the entitlement arises at law or in equity or
otherwise.
relevant
position means the position of director, manager or
secretary or any executive position, however designated, if it is an executive
position.
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.
Part 2Licensing
scheme
5Licence to cultivate or supply
low-THC hemp
The Director-General may grant a licence
authorising a person to cultivate or supply low-THC hemp for any one or more
of the following purposes:
(a)
for commercial production,
(b)
for use in any manufacturing
process,
(c)
for scientific research, instruction, analysis or
study,
(d)
for any other purpose prescribed by the
regulations.
Note—
The possession of low-THC hemp is not an offence
under the Drug Misuse and Trafficking Act
1985 if it is cultivated or supplied under the authority
of this Act.
6Offence not to comply with
licence
A person who is the holder of a licence:
(a)
must not cultivate or supply low-THC hemp
otherwise than for the purpose for which the licence is granted,
and
(b)
must comply with the conditions to which the
licence is subject.
Maximum penalty: 100 penalty units or
imprisonment for 2 years, or both.
7Application for
licence
(1)
A person may apply to the Director-General for a
licence.
(2)
An application for a licence must:
(a)
be in the form approved by the Director-General,
and
(b)
be accompanied by such fee (if any) as may be
approved by the Director-General to cover the costs associated with the
assessment and determination of the application, and
(c)
contain such information and particulars as are
prescribed by the regulations, and
(d)
contain such other information, and be
accompanied by such other documents, as the Director-General may require to
determine the application.
8Investigation of
application
(1)
On receiving an application for a licence, the
Director-General is authorised to carry out such investigations and inquiries
as the Director-General considers necessary to determine the
application.
(2)
In particular, the Director-General must conduct
a criminal record check in relation to the applicant and may conduct a
criminal record check in relation to any person who, in the opinion of the
Director-General, is a close associate of the applicant. It is the duty of the
Commissioner of Police to assist in any such criminal record
check.
(3)
The Director-General may, by notice in writing,
require a person who is an applicant for a licence or who, in the opinion of
the Director-General, is a close associate of the applicant to do any one or
more of the following things:
(a)
to provide, in accordance with directions in the
notice, such information as is relevant to the investigation of the
application and specified in the notice,
(b)
to produce, in accordance with directions in the
notice, such records as are relevant to the investigation of the application
and specified in the notice,
(c)
to furnish to the Director-General such
authorities and consents as the Director-General directs for the purpose of
enabling the Director-General to obtain information (including financial and
other confidential information) from other persons concerning the applicant or
close associate.
(4)
If a requirement made under this section is not
complied with, the Director-General may refuse to determine the application
concerned.
(5)
Any costs incurred by the Director-General in
conducting a criminal record check under this section are to be paid by the
applicant for the licence concerned.
9Suitability of applicant and
close associates of applicant
(1)
This section applies in relation to a close
associate of an applicant for a licence only if the Director-General is
satisfied that the close associate is likely to be concerned in, or associated
with, the cultivation or supply of low-THC hemp under the
licence.
(2)
The Director-General must not grant a licence to
a person unless satisfied that the person, and each close associate of the
person, is a suitable person to be concerned in or associated with the
cultivation or supply of low-THC hemp under a licence.
(3)
In particular, the Director-General is to
consider whether the person, and each close associate of the person, is of
good repute, having regard to the person’s or close associate’s
(as the case requires) character, honesty and integrity.
(4)
The Director-General must not grant a licence to
a person if the person, or a close associate of the person, has been found
guilty of a drug related offence.
(5)
The Director-General may refuse to grant a
licence to a person:
(a)
if the person, or a close associate of the
person, has been found guilty of an offence that, in the opinion of the
Director-General, makes the person or close associate unsuitable to be
concerned in or associated with the cultivation or supply of low-THC hemp
under a licence, or
(b)
on such other grounds the Director-General
considers appropriate.
(6)
The regulations may make further provision for
the circumstances in which the Director-General may refuse, or is required to
refuse, to grant a licence to a person.
10Determination of licence
application
(1)
The Director-General is to determine an
application for a licence:
(a)
by granting the application and issuing a licence
to the applicant, or
(b)
by refusing the
application.
(2)
The Director-General is to give the applicant
written notice of the determination of the application. However, the
Director-General is not required to give any reasons for his or her
decision.
(3)
The Director-General’s decision in relation
to a licence application is final and is not subject to
review.
11Duration of
licence
Unless it is sooner revoked or suspended under
this Act, a licence continues in force for a period of 5 years from the date
on which it was granted, renewed or transferred (or such shorter period as may
be specified in the licence).
12Conditions of
licence
(1)
A licence is subject to:
(a)
such conditions as are imposed by this Act or
prescribed by the regulations, and
(b)
such conditions as may be imposed by the
Director-General, at the time the licence is granted, renewed or transferred
or at any later time, and specified in the licence.
(2)
A condition imposed by the Director-General after
the licence is granted, renewed or transferred takes effect when written
notice of the condition is given to the licensee, or at such later date as may
be specified in the notice.
(3)
The Director-General may at any time, by notice
in writing to the holder of a licence, vary or revoke a condition of the
licence imposed by the Director-General.
13Renewal of
licence
(1)
An application for the renewal of a licence may
be made to the Director-General by the holder of the
licence.
(2)
If an application for the renewal of a licence is
received by the Director-General no later than 28 days before the date on
which the licence is due to expire, the licence is taken to continue in force
until the application is determined by the
Director-General.
(3)
Subject to the regulations, an application for
the renewal of a licence is to be dealt with as if it were an initial
application for a licence. Accordingly, sections 7–9 apply in relation
to an application under this section.
(4)
The Director-General is to determine an
application for the renewal of a licence:
(a)
by granting the application and issuing a licence
to the applicant, or
(b)
by refusing the
application.
(5)
The Director-General is to give the applicant in
writing of the determination of the application.
14Transfer of
licence
(1)
An application for the transfer of a licence may
be made jointly by the holder of the licence and the person named in the
application as the transferee.
(2)
Subject to the regulations, an application for
the transfer of a licence is to be dealt with as if it were an initial
application by the transferee for a licence. Accordingly, sections 7–9
apply in relation to an application under this section.
(3)
The Director-General is to determine an
application for the transfer of a licence:
(a)
by granting the application and transferring the
licence to the transferee, or
(b)
by refusing the
application.
(4)
The Director-General is to give the joint
applicants written notice of the determination of the application. However,
the Director-General is not required to give any reasons for his or her
decision.
(5)
The Director-General’s decision in relation
to an application for the transfer of a licence is final and is not subject to
review.
15Suspension of
licence
(1)
The Director-General may, if the Director-General
is satisfied there may be grounds for revoking a licence, suspend the licence
by giving the licensee a written notice stating that the licence is suspended.
The regulations may specify other grounds on which a licence may be suspended
by the Director-General.
(2)
The suspension of a licence continues until
either:
(a)
the licence is revoked under section 16,
or
(b)
the Director-General gives the licensee a written
notice stating that the suspension is lifted.
(3)
The authority conferred by a licence ceases to
have effect during the period that the licence is
suspended.
(4)
However, the Director-General may authorise a
person, during the period that a licence is suspended, to cultivate or supply,
in accordance with the conditions of the licence, any low-THC hemp that was in
the possession of the licence holder immediately before the suspension took
effect.
16Revocation of
licence
(1)
A licence may be revoked by the
Director-General:
(a)
if the licensee contravenes any provision of this
Act or the regulations, whether or not the licensee has been convicted of an
offence for the contravention, or
(b)
on such other grounds as may be prescribed by the
regulations.
Note—
Failing to comply with the conditions of a
licence is a contravention of the Act.
(2)
The Director-General must revoke a licence if the
Director-General is satisfied that, if the licensee were applying for a new
licence, the application would be required by this Act to be
refused.
(3)
A licence is revoked by the Director-General by
serving on the licensee a written notice stating that the licence is revoked.
The revocation takes effect when the notice is served or on a later date
specified in the notice.
(4)
The Director-General may, by serving a further
written notice on the holder of a licence, cancel a notice revoking a licence
before the notice takes effect.
Part 3Investigation and enforcement
powers
Division 1Preliminary
17Purposes for which powers
under Part may be exercised
(1)
Powers may be exercised under this Part for the
following purposes:
(a)
for determining whether there has been compliance
with, or a contravention of, this Act or the regulations,
(b)
for determining whether the holder of a licence
is cultivating or supplying any cannabis that is not low-THC
hemp,
(c)
in connection with exercising the functions of an
inspector under this Act,
(d)
for obtaining information or records for purposes
connected with the administration of this Act,
(e)
generally for administering this
Act.
(2)
For the purposes of subsection (1) (b), cannabis means cannabis leaf,
cannabis oil, cannabis plant and cannabis resin as defined in the Drug Misuse and Trafficking Act
1985.
18Appointment of
inspectors
(1)
The Director-General may appoint any person, or
persons included in a class of persons, to be an inspector or inspectors for
the purposes of this Act.
(2)
The Director-General may, in and by the
instrument of an inspector’s appointment, limit the functions that the
inspector may exercise under this Act.
(3)
An inspector is, to the extent to which the
inspector is exercising functions as an inspector under this Act, subject to
the control and direction of the Director-General.
19Identification of
inspectors
(1)
The Director-General is to cause each inspector
to be issued with a means of identification in the form approved by the
Director-General.
(2)
In the course of exercising the functions of an
inspector under this Act, the inspector must, if requested to do so by any
person affected by the exercise of any such function, produce the
inspector’s identification for inspection by the person unless to do so
would defeat the purpose for which the functions are to be
exercised.
20Police officers to be
inspectors
(1)
A police officer may exercise the functions of an
inspector under this Act.
(2)
A reference in this Act (other than in section 18
or 19) to an inspector includes a reference to a police officer in the course
of exercising, as referred to in this section, the functions of an
inspector.
Division 2Powers to require information
or records and give directions
21Requirement to provide
information and records
(1)
The Director-General or an inspector may, by
notice in writing given to a person, require the person to furnish to the
Director-General or inspector such information or records (or both) as the
Director-General or inspector requires by the notice in connection with any
matter arising under or in connection with this Act or the
regulations.
(2)
Any such notice must specify the manner in which
information or records are required to be furnished and a reasonable time by
which the information or records are required to be
furnished.
22Provisions relating to
records
(1)
A notice under this Division may only require a
person to furnish records that are in the person’s possession or that
are within the person’s power to obtain lawfully.
(2)
The person to whom any record is furnished under
this Division may take copies of it.
(3)
If any record required to be furnished under this
Division is in electronic, mechanical or other form, the notice requires the
record to be furnished in written form, unless the notice otherwise
provides.
23Power to give directions to
rectify breach of licence
(1)
The Director-General or an inspector may direct
the holder of a licence, by notice in writing, to carry out such work or other
actions as the Director-General or inspector considers necessary to rectify
any breach of the licence.
(2)
If the requirements of the notice are not
complied with within the period specified in it, the Director-General or
inspector:
(a)
may cause the work or actions specified in the
notice to be carried out, and
(b)
may, by proceedings brought in any court of
competent jurisdiction, recover as a debt from the licensee to whom the notice
was given the reasonable cost of complying with those
requirements.
24Application of
Division
This Division applies whether or not a power of
entry under Division 3 is being or has been exercised.
Division 3Powers of entry and search of
premises
25Power to enter
premises
(1)
An inspector may enter any premises at any time
for the purposes referred to in section 17.
(2)
Entry may be effected under this Act by an
inspector with such assistance as the inspector considers necessary and with
the use of reasonable force.
26Entry into residential
premises only with permission or warrant
This Division does not empower an inspector to
enter any part of premises used only for residential purposes without the
permission of the occupier or the authority of a search warrant under section
28.
27Powers to inspect and seize
things
(1)
An inspector may, on any premises lawfully
entered, do anything that in the opinion of the inspector is necessary to be
done for the purposes of this Part, including (but not limited to) the things
specified in subsection (2).
(2)
An inspector may do any or all of the
following:
(a)
carry out surveillance
activities,
(b)
examine and inspect any part of the premises or
any article or thing on the premises,
(c)
make such examinations and inquiries as the
inspector considers necessary,
(d)
require records to be produced for
inspection,
(e)
examine and inspect any
records,
(f)
take copies of any records,
(g)
take and remove samples of any plant or thing for
analysis,
(h)
seize anything that the inspector has reasonable
grounds for believing is connected with an offence under this Act, the
regulations or the Drug Misuse and Trafficking Act
1985,
(i)
do any other thing the inspector is empowered to
do under this Part.
(3)
The power to seize anything connected with an
offence includes a power to seize:
(a)
a thing with respect to which the offence has
been committed, and
(b)
a thing that will afford evidence of the
commission of the offence, and
(c)
a thing that was used for the purpose of
committing the offence.
A reference to any such offence includes a
reference to an offence that there are reasonable grounds for believing has
been committed.
28Search
warrants
(1)
An inspector may apply to an authorised officer
for the issue of a search warrant if the inspector believes on reasonable
grounds that:
(a)
a provision of this Act, the regulations or the
Drug Misuse and Trafficking Act 1985 is
being or has been contravened at any premises, or
(b)
there is in or on any premises any matter or a
thing that is connected with an offence under this Act, the regulations or the
Drug Misuse and Trafficking Act
1985.
(2)
An authorised officer to whom such an application
is made may, if satisfied that there are reasonable grounds for doing so,
issue a search warrant authorising an inspector named in the warrant:
(a)
to enter the premises, and
(b)
to exercise any function of an inspector under
this Division.
(3)
Division 4 of Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 applies
to a search warrant issued under this section.
(4)
In this section:
authorised officer has the same
meaning as in the Law Enforcement (Powers and
Responsibilities) Act 2002.
matter or
a thing connected with an offence means:
(a)
matter or a thing with respect to which the
offence has been committed, or
(b)
matter or a thing that will afford evidence of
the commission of an offence, or
(c)
matter or a thing that was used, or is intended
to be used, for the purpose of committing the
offence.
offence includes an offence that
there are reasonable grounds for believing has been, or is to be,
committed.
29Assistance to be given to
inspectors
(1)
This section applies for the purpose of enabling
an inspector to exercise any of the powers of an inspector under this Division
in connection with any premises.
(2)
The Director-General may, by notice in writing
given to the owner or occupier of the premises, require the owner or occupier
to provide such reasonable assistance and facilities as are specified in the
notice within a specified time and in a specified
manner.
(3)
Assistance and facilities can be required under
this section, whether they are of the same kind as, or a different kind from,
any prescribed by the regulations.
30Dealing with seized
things
(1)
If an inspector seizes anything under section 27
on any premises, the inspector must issue the person apparently in charge of
the premises with a written receipt for the thing
seized.
(2)
An inspector may retain anything seized under
section 27 until the completion of any proceedings (including proceedings on
appeal) in which it may be evidence.
(3)
A record may only be retained under subsection
(2) if the person from whom the record was seized is provided, within a
reasonable time after the seizure, with a copy of the record certified by the
inspector as a true copy. The copy is, as evidence, of equal validity to the
document of which it is certified to be a copy.
(4)
Subsection (2) ceases to have effect in relation
to anything seized if, on the application of a person aggrieved by the
seizure, the court in which proceedings referred to in that subsection are
commenced so orders.
(5)
For the removal of any doubt, anything seized
under section 27 may be used as evidence in proceedings for an offence under
this or any other Act.
Division 4Power to question
persons
31Power to require
answers
(1)
An inspector may require a person whom the
inspector suspects on reasonable grounds to have knowledge of matters in
respect of which information is reasonably required for the purposes of this
Act to answer questions in relation to those matters.
(2)
The Director-General may, by notice in writing,
require a corporation to nominate, in writing within the time specified in the
notice, a director or officer of the corporation to be the corporation’s
representative for the purpose of answering questions under this
section.
(3)
Answers given by a person nominated under
subsection (2) bind the corporation.
32Power to demand name and
address
An inspector may require a person whom the
inspector suspects on reasonable grounds to have offended or to be offending
against this Act or the regulations to state his or her full name and
residential address.
Division 5General
33Offences under this
Part
(1)
A person must not, without lawful excuse, refuse
or fail to comply with a requirement made of the person under this
Part.
(2)
A person must not furnish any information or do
any other thing in purported compliance with a requirement made under this
Part, knowing that it is false or misleading in a material
respect.
(3)
A person must not wilfully:
(a)
obstruct, delay, hinder, assault, threaten,
insult or intimidate an inspector in the exercise of the inspector’s
powers under this Part, or
(b)
refuse to allow an inspector to enter any
premises the inspector may lawfully enter under this
Part.
(4)
A person must not impersonate an
inspector.
Maximum penalty: 100 penalty
units.
34Provisions relating to
requirements to furnish records, information or answer
questions
(1)Warning to be given on each
occasion
A person is not guilty of an offence of failing
to comply with a requirement under this Part to furnish records or information
or to answer a question unless the person was warned on that occasion that a
failure to comply is an offence.
(2)Self-incrimination not an
excuse
A person is not excused from a requirement under
this Part to furnish any records or information or to answer a question on the
ground that the record, information or answer might incriminate the person or
make the person liable to a penalty.
(3)Information or answer not
admissible if objection made
However, any information furnished or answer
given by a natural person in compliance with a requirement under this Part is
not admissible in evidence against the person in criminal proceedings (except
proceedings for an offence under this Part) if:
(a)
the person objected at the time to doing so on
the ground that it might incriminate the person, or
(b)
the person was not warned on that occasion that
the person may object to furnishing the information or giving the answer on
the ground that it might incriminate the person.
(4)Records
admissible
Any record furnished by a person in compliance
with a requirement under this Part is not inadmissible in evidence against the
person in criminal proceedings on the ground that the record might incriminate
the person.
(5)Further
information
Further information obtained as a result of a
record or information furnished or of an answer given in compliance with a
requirement under this Part is not inadmissible on the ground:
(a)
that the record or information had to be
furnished or the answer had to be given, or
(b)
that the record or information furnished or
answer given might incriminate the person.
(6)Requirement to state name and
address
This section extends to a requirement under this
Part to state a person’s name and address.
Part 4Miscellaneous
35False or misleading
statements
(1)
A person must not, in any official document, make
a statement that the person knows, or could reasonably be expected to
know:
(a)
is false or misleading in a material respect,
or
(b)
omits material matter.
Maximum penalty: 100 penalty units or
imprisonment for 2 years, or both.
(2)
In this section:
official
document means any application under this Act or any other
document that is required to be provided to the Director-General under this
Act or the regulations.
36Forfeiture and destruction of
low-THC hemp
(1)
If a person is found guilty by a court of an
offence under this Act or the regulations, the court may order the forfeiture
to the Crown of any low-THC hemp that was, at the time of the commission of
the offence, in the person’s possession or apparently under the
person’s control.
(2)
If a licence is revoked, any low-THC hemp in the
possession of the former licensee or apparently under the former
licensee’s control is forfeited to the Crown.
(3)
Any low-THC hemp that is forfeited to the Crown
under this section is to be destroyed in accordance with the directions of the
Director-General.
(4)
However, the Director-General may, instead of
directing the destruction of the low-THC hemp, authorise a person to take
possession of the low-THC hemp, on behalf of the Crown, so that it can be
cultivated or supplied for a purpose specified by the
Director-General.
(5)
If any low-THC hemp is destroyed under this
section, the person referred to in subsection (1) or the former licensee, as
the case requires, must pay to the Crown the reasonable costs of the
destruction.
37Arrangements for supply of
information
(1)
For the purposes of assisting in the
administration of this Act, the Director-General may enter into arrangements
with a relevant agency for the supply to the Director-General of any
information held by the agency.
(2)
Any such arrangement is sufficient authority for
the supply of the information concerned.
(3)
In this section:
relevant
agency means:
(a)
the NSW Police Force or the police force of
another State or Territory or of an overseas jurisdiction,
or
(b)
the Australian Federal Police,
or
(c)
the New South Wales Crime Commission,
or
(d)
the Australian Crime Commission,
or
(e)
any other authority or person responsible for the
investigation or prosecution of offences against the laws of the State or of
the Commonwealth, another State or Territory or an overseas jurisdiction,
or
(f)
any person or agency exercising functions under a
corresponding law, or
(g)
any other person or body prescribed by the
regulations for the purposes of this section.
38Administrative review by NCAT
of certain licence decisions
A person may apply to the Civil and
Administrative Tribunal for an administrative review under the Administrative Decisions Review Act
1997 of a decision by the Director-General:
(a)
to impose a condition on a licence held by the
person or to vary any such condition imposed by the Director-General,
or
(b)
to refuse to renew a licence granted to the
person, or
(c)
to suspend or revoke a licence held by the
person.
s 38: Am 2013 No 95,
Sch 2.76.
39Approved
fees
(1)
The amount of a fee approved by the
Director-General under this Act must not exceed the amount (if any) prescribed
in respect of any such fee by the regulations.
(2)
The Director-General may waive all or part of any
fee payable under this Act in any circumstances the Director-General considers
appropriate.
40Protection from personal
liability
(1)
Any matter or thing done or omitted to be done by
a person who is:
(a)
the Director-General, or
(b)
acting under the direction of the
Director-General, or
(c)
a member of staff of the Department,
or
(d)
an inspector,
does not, if the matter or thing was done or omitted to
be done in good faith for the purpose of exercising a function under this Act,
make the person personally liable to any action, liability, claim or demand in
respect of that matter or thing.
(2)
However, any such liability attaches instead to
the Crown.
41Delegation
The Director-General may delegate the exercise of
any function of the Director-General under this Act (other than this power of
delegation) to:
(a)
any member of staff of the Department,
or
(b)
any person, or any class of persons, authorised
for the purposes of this section by the
regulations.
42Service of
documents
(1)
A document that is authorised or required by this
Act or the regulations to be served on, or given to, any person may be served
or given by:
(a)
in the case of a natural person:
(i)
delivering it to the person personally,
or
(ii)
sending it by post to the address specified by
the person for the giving or service of documents or, if no such address is
specified, the residential or business address of the person last known to the
person giving or serving the document, or
(iii)
sending it by facsimile transmission to the last
known facsimile number of the person, or
(b)
in the case of a body corporate:
(i)
leaving it with a person apparently of or above
the age of 16 years at, or by sending it by post to, the head office, a
registered office or a principal office of the body corporate or to an address
specified by the body corporate for the giving or service of documents,
or
(ii)
sending it by facsimile transmission to the last
known facsimile number of the body corporate.
(2)
Nothing in this section affects the operation of
any provision of a law or of the rules of a court authorising a document to be
served on a person in any other manner.
43Offences by
corporations
(1)
If a corporation contravenes any provision of
this Act, each person who is a director of the corporation or who is concerned
in the management of the corporation is taken to have contravened the same
provision if the person knowingly authorised or permitted the
contravention.
(2)
A person may be proceeded against and convicted
under a provision pursuant to subsection (1) whether or not the corporation
has been proceeded against or convicted under that
provision.
(3)
Nothing in this section affects any liability
imposed on a corporation for an offence committed by the corporation under
this Act.
44Proceedings for
offences
(1)
Proceedings for an offence under this Act or the
regulations may be dealt with summarily before the Local
Court.
(2)
Any such proceedings must be commenced not later
than 12 months from when the offence was alleged to have been
committed.
45Penalty
notices
(1)
An authorised officer may serve a penalty notice
on a person if it appears to the officer that the person has committed an
offence under this Act, being an offence prescribed by the
regulations.
(2)
A penalty notice is a notice to the effect that,
if the person served does not wish to have the matter determined by a court,
the person may pay within a time and to a person specified in the notice the
amount of penalty prescribed by the regulations for the offence if dealt with
under this section.
(3)
A penalty notice may be served personally or by
post.
(4)
If the amount of penalty prescribed for an
alleged offence is paid under this section, no person is liable to any further
proceedings for the alleged offence.
(5)
Payment under this section is not to be regarded
as an admission of liability for the purpose of, and does not in any way
affect or prejudice, any civil proceeding arising out of the same
occurrence.
(6)
The regulations may:
(a)
prescribe an offence for the purposes of this
section by specifying the offence or by referring to the provision creating
the offence, and
(b)
prescribe the amount of penalty payable for the
offence if dealt with under this section, and
(c)
prescribe different amounts of penalties for
different offences or classes of offences.
(7)
The amount of a penalty prescribed under this
section for an offence must not exceed the maximum amount of penalty that
could be imposed for the offence by a court.
(8)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
(9)
In this section:
authorised officer means a police
officer or an inspector.
46Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
In particular, the regulations may:
(a)
require holders of licences to keep records for
the purposes of this Act and to provide reports to the Director-General on
such matters as may be prescribed by the regulations, and
(b)
make provision for the charging of annual licence
fees and other fees associated with the administration of the licensing scheme
under this Act (including provision for the payment of such fees by
instalments), and
(c)
make further provision for or with respect to the
suspension, renewal and transfer of licences.
(3)
The regulations may create offences punishable by
a penalty not exceeding 50 penalty units.
47Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
48Savings, transitional and
other provisions
Schedule 1 has effect.
49
s 49: Rep 2009 No 56,
Sch 5.
50Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Savings, transitional and
other provisions
(Section 48)
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of the following
Acts:
this Act
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2Provisions consequent on
enactment of this Act
2Existing authorities under
Drug Misuse and Trafficking Act 1985 in
relation to low-THC hemp
(1)
In this clause:
existing
authority means an authority:
(a)
granted by the Director-General of the Department
of Health under section 23 (4) (b) of the Drug Misuse and
Trafficking Act 1985 (whether or not in conjunction with
an authority granted by that Director-General under any other provision of
that Act), and
(b)
that relates to the cultivation, possession or
supply of low-THC hemp for the purpose of scientific research, instruction,
analysis or study, and
(c)
that is in force immediately before the date of
assent to this Act.
(2)
An existing authority ceases to have effect on
the commencement of Part 2 of this Act.
(3)
A person acting in accordance with an existing
authority is, on the commencement of Part 2 of this Act, taken to be the
holder of a licence under this Act authorising the person to cultivate or
supply low-THC hemp for the purpose of scientific research, instruction,
analysis or study:
(a)
for the remainder of the term for which the
existing authority was granted, or
(b)
if the existing authority was not granted for a
specified term—for such period as the Director-General may specify by
written notice given to the holder of the licence.
(4)
The conditions to which any such existing
authority is subject are taken to be conditions imposed by the
Director-General under this Act and may be varied or revoked in accordance
with this Act.
(5)
If, but for this subclause, an existing authority
would expire before the commencement of Part 2 of this Act, the existing
authority continues to have effect under and for the purposes of the Drug Misuse and Trafficking Act 1985
until such time as Part 2 of this Act commences.
Schedule 2
sch 2: Am 2008 No
114, Sch 4. Rep 2009 No 56, Sch 5.
Historical
notes
Table of amending
instruments
Hemp Industry Act
2008 No 58. Assented to 1.7.2008. Date of commencement,
sec 3 and Schs 1 and 2.1 [1] and [3] excepted, 31.10.2008, sec 2 (1) and GG No
138 of 31.10.2008, p 10471; date of commencement of sec 3 and Schs 1 and 2.1
[1] and [3], assent, sec 2 (2). This Act has been amended as follows:
2008
No
114
Statute Law
(Miscellaneous Provisions) Act (No 2) 2008. Assented to
10.12.2008.
Date of commencement of Sch 4, assent, sec 2
(1).
2009
No
56
Statute Law
(Miscellaneous Provisions) Act 2009. Assented to
1.7.2009.
Date of commencement of Sch 5, 17.7.2009, sec 2
(1).
2010
No
59
Statute Law
(Miscellaneous Provisions) Act 2010. Assented to
28.6.2010.
Date of commencement of Sch 2.43, 9.7.2010, sec 2
(2).
2013
No
95
Civil and
Administrative Legislation (Repeal and Amendment) Act
2013. Assented to 20.11.2013.
Date of commencement, 1.1.2014, sec
2.
Table of
amendments
Sec
3
Am 2010 No
59, Sch 2.43.
Sec
38
Am 2013 No
95, Sch 2.76.
Sec
49
Rep 2009 No
56, Sch 5.
Sch
2
Am 2008 No
114, Sch 4. Rep 2009 No 56, Sch 5.