Industrial Hemp Act 2004 (Western Australia)

The Industrial Hemp Act 2004 establishes a statutory licensing and regulatory framework for the cultivation, harvesting and processing of industrial hemp in Western Australia and makes consequential amendments to the Misuse of Drugs Act 1981 and the Poisons Act 1964. The Act’s stated purposes are to provide for licensing of persons and partnerships to cultivate, harvest or process industrial hemp, and to amend the two Acts identified (short title and objects, and the opening paragraphs of the enactment). The Act commenced by proclamation (s 2) and was subsequently amended by the Industrial Hemp Amendment Act 2018 (compilation table).

Mechanically, the Act creates four linked pillars:

A licensing threshold making it an offence to cultivate, harvest or process industrial hemp except under and in accordance with a licence (s 4, penalty $10,000).
Detailed application, grant, renewal, transfer and amendment procedures and eligibility criteria for licences for individuals, partnerships and bodies corporate (Div 2, ss 5-26). Licences may run for up to 3 years (s 15).
Ongoing conditions, registers and inspection and enforcement powers (Part 3 and Part 5). The Registrar must keep a register (s 30); inspectors have statutory powers to enter non-residential licensed premises, sample plants, remove documents for copying and submit samples to approved analysts or botanists (s 39).
Consequential statutory adjustments in the Misuse of Drugs Act 1981 and the Poisons Act 1964 that carve industrial hemp, industrial hemp seed and “processed industrial hemp” out of certain prohibitions and create specific defences for licensed activity (Parts 7 and 8, ss 50-55).

The legislation defines industrial hemp as cannabis the leaves and flowering heads of which do not contain more than 1% tetrahydrocannabinol (THC) (s 3). The Misuse of Drugs Act amendments add a definition of “processed industrial hemp” with a lower maximum THC threshold (0.35%) and additional exclusions (must not contain viable whole cannabis seed and must not be manufactured in a form to be inhaled) (s 50). The Poisons Act is amended to exclude industrial hemp and processed industrial hemp from its operation (s 55).

CrestWestern Australia

Industrial Hemp Act 2004

Western Australia

Industrial Hemp Act 2004

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used in this Act 2

Part 2 — Licensing

Division 1 — Licence required to cultivate, harvest or process industrial hemp

Licensing requirement 4

Division 2 — Application for and grant of a licence or a renewal or transfer of a licence

Applications 4
Investigations and inquiries relating to applications 5
Application for licence by individual 5
Grant of licence to an individual 5
Application for a licence by partnership 6
Grant of licence to a partnership 7
Application for licence by a body corporate 8
Grant of licence to a body corporate 8
Notice of refusal of application 9
Issue of licence 9
Duration of licence 10
Application for renewal of licence 10
Grounds for refusing to renew a licence 10
Conditions 10
Amendment of licence 11
Return of licence no longer in force 12
Transfer of licence 12

Division 3 — Changes in partnership or body corporate

Loss of member etc., notice to be given to Registrar 13
New member in licensed partnership 13
New person in management of corporate member of licensed partnership 14
New person in management of licensed body corporate 15
Licence ceases if changes not approved 15
Offence to make management changes without applying for approval 16

Part 3 — Provisions applicable to licences

False or misleading information 17
Contravention of conditions of a licence 17
Registers 17
Inspection of register 18
Registrar may certify as to matters in the register 18
Surrender of licence 18
Certified copy of licence 19
Production of licence 19

Part 4 — Appeals

Appeals 20

Part 5 — Enforcement

Suspension or cancellation of licence 22
Inspectors 23
General powers 23
Powers of approved analyst or botanist 24
Requirement to notify Commissioner 24
Inspector may possess cannabis for purposes of this Act 25
Inspector’s powers additional to other powers 25

Part 6 — Miscellaneous

Term used in this Part 26
Registrar 26
Delegation by Registrar 26
Delegation by the Commissioner 26
Regulations 27

Part 7 — Consequential amendments to the Misuse of Drugs Act 1981

The Act amended 29
Section 3 amended 29
Section 4 amended 29
Section 6 amended 30
Section 7 amended 30
Section 8A inserted 30

8A. Defences relating to industrial hemp or industrial hemp seed 30

Part 8 — Consequential amendment to the Poisons Act 1964

The Act amended 34

7A. Application: industrial hemp, industrial hemp seed and processed industrial hemp 34

Notes

Compilation table 35

Defined terms

Western Australia

Industrial Hemp Act 2004

An Act to —

• provide for the licensing of persons and partnerships to cultivate, harvest or process industrial hemp;

• amend the Misuse of Drugs Act 1981; and

• amend the Poisons Act 1964,

and for related purposes.

Part 1 — Preliminary

1. Short title

This Act may be cited as the Industrial Hemp Act 2004.

2. Commencement

This Act comes into operation on a day fixed by proclamation.

3. Terms used in this Act

(1) In this Act, unless the contrary intention appears —

application means an application made under section 5;

approved means approved by the Registrar;

approved analyst has the meaning given to that term in section 3(1) of the Misuse of Drugs Act 1981;

approved botanist has the meaning given to that term in section 3(1) of the Misuse of Drugs Act 1981;

authorised activity, in relation to a licence, means an activity authorised by the licence;

authorised premises, in relation to a licence, means the premises described in the licence under section 14;

cannabis means plant of the genus Cannabis (by whatever name designated) or part of that plant;

Commissioner means the Commissioner of Police appointed under the Police Act 1892;

Department means the department of the Public Service principally assisting the Minister in the administration of this Act;

external serious drug offence has the meaning given to that term in section 32A(3) of the Misuse of Drugs Act 1981;

industrial hemp means cannabis, the leaves and flowering heads of which do not contain more than 1% of tetrahydrocannabinol;

industrial hemp seed means seed that is certified in an approved manner as —

(a) having been produced from industrial hemp; or

(b) producing, when cultivated, industrial hemp;

inspector means —

(a) a person appointed under section 38(1); or

(b) a police officer;

licence means a licence issued and in force under this Act;

licensee means the holder of a licence;

plant includes seed and any other part of a plant;

premises means land (whether built on or not), or a building or structure on land, and includes a part of premises;

process means to treat by mechanical, chemical or other artificial means but does not include harvesting;

Registrar means the person who for the time being holds, or acts in, the position referred to in section 45;

serious drug offence has the meaning given to that term in section 32A(3) of the Misuse of Drugs Act 1981.

(2) If a licence is granted to 2 or more persons under section 10, references in this Act to a licence holder or licensee are to those persons jointly, unless a contrary intention appears.

(3) References in provisions of this Act that create offences to a licence holder or licensee include a partnership to which a licence has been issued or transferred and the provisions apply to a partnership as if the partnership were a person, but any offence against a provision of this Act that would otherwise be an offence by the partnership is to be taken to have been committed by each of the partners.

[Section 3 amended: No. 15 of 2018 s. 4.]

Part 2 — Licensing

Division 1 — Licence required to cultivate, harvest or process industrial hemp

4. Licensing requirement

A person must not —

(a) cultivate industrial hemp;

(b) harvest industrial hemp; or

except under and in accordance with a licence.

Penalty: $10 000.

Division 2 — Application for and grant of a licence or a renewal or transfer of a licence

5. Applications

(1) This section applies to all applications to the Registrar for —

(a) a licence authorising the person or partnership —

(i) to cultivate industrial hemp;

(ii) to harvest industrial hemp;

(iii) to process industrial hemp; or

(iv) to do one or more of those things;

(b) the renewal of a licence;

(d) a licence to be amended under section 23; and

(e) approval of an inclusion under section 24 or 25.

(2) An application is to be —

(a) made in an approved form;

(b) accompanied by the prescribed fee; and

(3) If an application does not comply with subsection (2) the Registrar may decline to deal with the application and advise the applicant accordingly.

6. Investigations and inquiries relating to applications

(1) Subject to section 5(3), after receiving an application the Registrar is to carry out the investigations that the Registrar considers necessary to determine the application in accordance with section 8, 10, 12, 17, 21, 23, 24 or 25, as the case requires.

(2) Without limiting subsection (1), the Registrar may —

(a) refer a copy of an application, together with any information provided under section 5(2)(c), to the Commissioner; and

(b) request the Commissioner to inquire into and report to the Registrar on matters relating to the application.

(3) The Commissioner or a person to whom the duty has been delegated under section 47 is to comply with a request under subsection (2) within 30 days of receiving the request.

(4) The Registrar may, in a particular case, extend the period referred to in subsection (3).

7. Application for licence by individual

An application for a licence may be made to the Registrar by an individual.

8. Grant of licence to an individual

(1) After considering the application and the results of any investigation or inquiry under section 6, an application made under section 7 may be refused by the Registrar in accordance with subsection (3).

(2) Subject to subsection (1), the Registrar must grant a licence if the applicant satisfies him or her that the applicant —

(a) has reached 18 years of age;

(b) is a person of good character and repute;

(d) has sufficient material, human and financial resources to carry on any activity to be authorised by the licence; and

(e) has such qualifications as may be prescribed by regulations.

(3) The Registrar must refuse to grant a licence under this section if —

(a) the applicant has been found guilty of an external serious drug offence or a serious drug offence during the period of 10 years ending on the day on which the application was made;

(b) the applicant has an association with a person who —

(i) is not of good character and repute; or

(ii) has been found guilty of an external serious drug offence or a serious drug offence during the period of 10 years ending on the day on which the application was made;

(c) the means by which, the manner in which or the premises at which the applicant proposes to cultivate, harvest or process industrial hemp are not suitable for the purpose of carrying out that activity.

9. Application for a licence by partnership

An application for a licence may be made jointly to the Registrar by the 2 or more persons who together constitute a partnership.

10. Grant of licence to a partnership

(1) In this section —

relevant person means an individual —

(a) who is a member of the partnership; or

(b) who is concerned in the management or conduct of a body corporate that is a member of the partnership.

(2) After considering the application and the results of any investigation or inquiry under section 6, an application made under section 9 may be refused by the Registrar in accordance with subsection (4).

(3) Subject to subsection (2), the Registrar must grant a licence if the applicant satisfies him or her that —

(a) each relevant person —

(i) has reached 18 years of age;

(ii) is a person of good character and repute;

(iii) is a fit and proper person to be concerned in the management or the conduct of an activity to be authorised by the licence; and

(iv) has such qualifications as may be prescribed by regulations;

and

(b) the persons who constitute the partnership have sufficient material, human and financial resources to carry on any activity to be authorised by the licence.

(4) The Registrar must refuse to grant a licence under this section if —

(a) a relevant person has been found guilty of an external serious drug offence or a serious drug offence during the period of 10 years ending on the day on which the application was made;

(b) a relevant person has an association with a person who —

(i) is not of good character and repute; or

(ii) has been found guilty of an external serious drug offence or a serious drug offence during the period of 10 years ending on the day on which the application was made;

11. Application for licence by a body corporate

An application for a licence may be made to the Registrar by a body corporate.

12. Grant of licence to a body corporate

(1) In this section —

relevant person means an individual who is concerned in the management or conduct of the body corporate.

(2) After considering the application and the results of any investigation or inquiry under section 6, an application made under section 11 may be refused by the Registrar in accordance with subsection (4).

(3) Subject to subsection (2), the Registrar must grant a licence if the applicant satisfies him or her that —

(a) each relevant person —

(i) has reached 18 years of age;

(ii) is a person of good character and repute;

(iii) is a fit and proper person to be concerned in the management or the conduct of an activity to be authorised by the licence; and

(iv) has such qualifications as may be prescribed by regulations;

and

(b) the body corporate has sufficient material, human and financial resources to carry on any activity to be authorised by the licence.

(4) The Registrar must refuse to grant a licence under this section if —

(a) a relevant person has been found guilty of an external serious drug offence or a serious drug offence during the period of 10 years ending on the day on which the application was made;

(b) a relevant person has an association with a person who —

(i) is not of good character and repute; or

(ii) has been found guilty of an external serious drug offence or a serious drug offence during the period of 10 years ending on the day on which the application was made;

13. Notice of refusal of application

The Registrar is to give an applicant written notice of any refusal of an application under this Act.

14. Issue of licence

(1) If the Registrar decides to issue a licence, the Registrar is to issue to the applicant a licence in an approved form.

(2) The licence is to describe the premises at or on which an authorised activity may be carried out.

15. Duration of licence

(1) Subject to this Act, a licence continues in force for the period specified in the licence.

(2) The period specified in a licence cannot exceed 3 years.

16. Application for renewal of licence

(1) A licensee may apply to the Registrar for a renewal of the licence.

(2) An application for renewal must be made not later than 56 days before the day on which the licence is due to expire.

17. Grounds for refusing to renew a licence

(1) The Registrar may refuse to renew a licence if there is any ground on which the Registrar could refuse to grant the licence under section 8, 10 or 12.

(2) The Registrar cannot refuse to renew a licence as mentioned in subsection (1) unless he or she has —

(a) conducted an investigation under section 6; and

(b) given the licensee an opportunity to show cause why the renewal should not be refused.

18. Conditions

(1) A licence issued, renewed or transferred by the Registrar is subject to such conditions as may by regulations be prescribed from time to time.

(2) The Registrar may on the issue, renewal or transfer of a licence make the licence subject to any other conditions that the Registrar reasonably requires and specifies in the licence or a written notice given to the licensee or transferee.

(3) Without limiting subsections (1) and (2), the conditions prescribed by regulations may include conditions about —

(a) the authorised premises, including the implementation and maintenance of appropriate security measures at those premises;

(b) the keeping of records and other documents;

(i) the activities carried out under the licence; or

(ii) any other matter that is prescribed;

(d) the harvesting and disposal of crops and the processing and disposal of harvested material and crop residue; and

(e) the inspection, supervision and surveillance of plants, crops and harvested material by inspectors.

19. Amendment of licence

(1) The Registrar may amend a licence by —

(a) amending or cancelling a condition of the licence;

(b) imposing a new condition on the licence;

(d) correcting in the licence —

(i) a clerical mistake or unintentional error or omission; or

(ii) the misdescription of any person, activity or premises;

and

(e) subject to section 15(2), extending the period of time for which a licence is in force.

(2) A licence may be amended on application by the licence holder or on the initiative of the Registrar.

(3) The Registrar is to give the licence holder written notice of any amendment of the licence.

20. Return of licence no longer in force

If a licence —

(a) has expired and has not been renewed; or

(b) has been cancelled or ceases to have effect,

the person who has the licence must, as soon as practicable after the licence expired, was cancelled or ceased to have effect, return the licence to the Registrar.

Penalty: $1 500.

21. Transfer of licence

(1) A licence holder and another person (the transferee) may jointly apply to the Registrar for the transfer of the licence from the holder to the transferee.

(2) Sections 8, 10 and 12 apply in relation to an application under subsection (1) as if references in those sections to —

(a) an application were references to an application under subsection (1);

(b) the grant or refusal of a licence were references to the transfer of or refusal to transfer a licence; and

(3) After considering an application under subsection (1), the results of any investigation or inquiry under section 6, and the matters referred to in section 8, 10 or 12 (as applied by subsection (2)), the Registrar is to —

(a) transfer the licence; or

(b) refuse to transfer the licence.

Division 3 — Changes in partnership or body corporate

22. Loss of member etc., notice to be given to Registrar

(1) This section applies if, because of the death or resignation of the person or otherwise, one of the following events occurs —

(a) a person ceases to be a member of a partnership that holds a licence;

(b) a person ceases to be a person who is concerned in the management or conduct of a body corporate that is a member of a partnership that holds a licence;

(c) a person ceases to be a person who is concerned in the management or conduct of a body corporate that holds a licence.

(2) The licensee concerned must, within 14 days after the event occurs, notify the Registrar in writing of the event.

Penalty: $2 000.

23. New member in licensed partnership

(1) This section applies if —

(a) a licence is held by a partnership; and

(b) it is proposed to include a new member in the partnership, irrespective of whether an increase in the number of members is involved.

(2) The licensee may apply to the Registrar for the licence to be amended by including the proposed new member of the partnership as one of the licensees.

(3) The application must be made not less than 28 days before the inclusion is to occur.

(4) The Registrar may refuse to grant an application under subsection (2) only if he or she is satisfied that, if an application were made under section 9 by the persons who are proposed to be the holders of the licence as amended, a licence would not be granted to them.

(5) Subject to subsection (4), the Registrar must —

(a) grant an application that is made under subsections (2) and (3); and

(b) specify a day on which the amendment is to take effect.

24. New person in management of corporate member of licensed partnership

(1) This section applies if —

(a) a licence is held by a partnership;

(b) one of the members of the partnership is a body corporate; and

(c) it is proposed to include a new person in the persons who are concerned in the management or conduct of that body corporate, irrespective of whether an increase in the number of such persons is involved.

(2) The licensee may apply to the Registrar for the licence to be amended by including a new person in the persons who are concerned in the management or conduct of that body corporate.

(3) The application must be made not less than 28 days before the inclusion is to occur.

(4) The Registrar must grant an application unless he or she is satisfied that a licence would not be granted if —

(a) an application for a licence were made under section 9;

(b) the body corporate were one of the applicants; and

(c) at the time of the application the persons concerned in the management or conduct of the body corporate were the persons who would be so concerned if the proposed inclusion were approved.

25. New person in management of licensed body corporate

(1) This section applies if —

(a) a licence is held by a body corporate; and

(b) it is proposed to include a new person in the persons who are concerned in the management or conduct of the body corporate, irrespective of whether an increase in the number of such persons is involved.

(2) The licensee may apply to the Registrar for the licence to be amended by including a new person in the persons who are concerned in the management or conduct of the body corporate.

(3) The application must be made not less than 28 days before the inclusion is to occur.

(4) The Registrar must grant an application unless he or she is satisfied that a licence would not be granted if —

(a) an application for a licence were made under section 11; and

(b) at the time of that application the persons concerned in the management or conduct of the body corporate were the persons who would be so concerned if the proposed inclusion were approved.

26. Licence ceases if changes not approved

(1) This section applies if the Registrar refuses to grant an application under section 23(4), 24(4) or 25(4).

(2) The licence ceases to have effect 14 days after the licensee is notified of the refusal unless, within that period —

(a) the licensee notifies the Registrar in writing that the application to which the refusal relates is withdrawn; or

(b) the licensee makes a further application under section 23, 24 or 25, as the case may be, that is granted by the Registrar.

(3) The Registrar may by notice in writing to the licensee extend the period referred to in subsection (2).

27. Offence to make management changes without applying for approval

(1) If a licence is held by a partnership, the licensee commits an offence if —

(a) a new member is included in the partnership without an application being made under section 23; or

(b) a new person is included in the persons who are concerned in the management or conduct of a body corporate that is a member of the partnership without an application being made under section 24.

Penalty: $2 000.

(2) If a licence is held by a body corporate, the licensee commits an offence if a new person is included in the persons who are concerned in the management or conduct of the body corporate without an application being made under section 25.

Penalty: $2 000.

Part 3 — Provisions applicable to licences

28. False or misleading information

(1) A person must not in relation to an application to which this section applies give information orally or in writing that the person knows to be —

(a) false or misleading in a material particular; or

(b) likely to deceive in a material way.

Penalty: $5 000.

(2) This section applies to —

(a) an application for a licence;

(b) an application for the renewal of a licence; and

29. Contravention of conditions of a licence

(1) A licence holder who contravenes a condition of the licence commits an offence.

Penalty: $5 000.

(2) Despite section 11 of The Criminal Code, a person convicted of an offence under subsection (1) may be punished for the offence even if the condition contravened was amended or cancelled after the offence was committed.

30. Registers

(1) The Registrar must keep a register for the purposes of Part 2 recording such particulars and matters relating to licences as are prescribed.

(2) The regulations may provide for the form and manner in which a register is to be kept, including for a register to be in the form of information stored on a computer.

(3) Subject to the regulations, a register may be kept in a form and manner determined by the Registrar.

31. Inspection of register

The Registrar must allow any person, on payment of the prescribed fee —

(a) to inspect a register; and

(b) to take copies of, or extracts from, any part of it.

32. Registrar may certify as to matters in the register

(1) The Registrar may, on the application of a person, issue to the person a written statement certifying any of the following —

(a) that a person specified in the statement is or was, or is not or was not, the holder of a licence;

(b) that premises specified in the statement are or were, or are not or were not, premises at which an authorised activity may be carried out;

(d) any other matter appearing in the register.

(2) A statement under subsection (1) may specify the day or days or period on or during which anything referred to in subsection (1) applied.

(3) In all courts and proceedings a statement under this section is evidence of any matter that appears in it.

33. Surrender of licence

(1) A licensee may surrender the licence by —

(a) giving the Registrar notice in writing to that effect; and

(b) returning the licence to him or her.

(2) If a licence is surrendered, the Registrar is to refund to the former licensee so much (if any) of the fee last paid in respect of the licence as the Registrar, on application made by the former licensee, determines to be appropriate.

34. Certified copy of licence

(1) The Registrar may, on payment of the prescribed fee, issue a certified copy of a licence.

(2) In all courts and proceedings a certified copy so issued is evidence of the contents of the licence.

(3) A document that purports to be a certified copy of a licence issued by the Registrar is to be taken to be such a copy unless the contrary is proved.

35. Production of licence

(1) An inspector may require a licensee to produce his or her licence to the inspector.

(2) A request under subsection (1) may only be made at premises at or on which an authorised activity may be carried out.

(3) Any licensee to whom a requirement under subsection (1) is addressed must comply with the requirement unless he or she has reasonable excuse for not doing so.

Penalty: $1 500.

Part 4 — Appeals

36. Appeals

(1) This section applies to a decision of the Registrar —

(a) to refuse to issue a licence;

(b) to refuse to renew a licence;

(d) to suspend or cancel a licence; or

(e) to amend a licence.

(2) A person who is aggrieved by a decision to which this section applies may, within 30 days after receiving notice of the decision, appeal to the Minister against the decision by giving the Minister a notice of appeal in accordance with subsection (7).

(3) A person who has a right under subsection (2) to appeal to the Minister against a decision may request the Registrar to provide the person with a written statement of the reasons for the decision.

(4) A request under subsection (3) has to be made in writing.

(5) The Registrar on receiving a request under subsection (3) is to comply with the request as soon as practicable, and in any case within the period of 14 days after the request is made.

(6) Subject to subsection (11), the Registrar’s written statement has to contain —

(a) the reasons for the decision; and

(b) any findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based.

(7) The notice of appeal is to be in writing and set out the grounds of appeal and any representations that the appellant wishes to make in support of the appeal.

(8) The Minister may determine the appeal by confirming, varying or reversing the decision of the Registrar.

(9) The Minister’s determination is final and the Registrar is to give effect to the determination.

(10) The Minister is to cause notice of his or her determination, together with reasons for it, to be given to the appellant within 7 days after it is made.

(11) The Minister may order that a report or the contents of or source of information in a report provided by the Commissioner to the Registrar under section 6 not be disclosed to the aggrieved person, the aggrieved person’s representative or any other person if, on an application by the Registrar or the Commissioner, the Minister is satisfied that the disclosure might disclose exempt matter within the meaning given to that term in the Glossary at the end of the Freedom of Information Act 1992.

(12) An application under subsection (11) may be made without notice to the aggrieved person and may be determined in the absence of the aggrieved person.

(13) The reasons for the decision of the Minister on an appeal under this section must not disclose the content or source of information in a report that is the subject of an order made under subsection (11).

Part 5 — Enforcement

37. Suspension or cancellation of licence

(1) The Registrar may suspend or cancel a licence if —

(a) the licence holder has requested its suspension or cancellation;

(b) the Registrar is satisfied that there has been a contravention of a condition of the licence;

(c) the Registrar is satisfied that the licence holder has committed an offence against this Act or the Misuse of Drugs Act 1981;

(d) the Registrar is satisfied that there is any ground on which the Registrar could refuse to grant a licence under section 8, 10 or 12;

(e) the licensee has not paid a fee required to be paid under this Act;

(f) information contained in or provided in connection with —

(i) the application for the licence; or

(ii) any application for the transfer or renewal of the licence,

was false or misleading in a material respect; or

(g) the licence holder no longer carries on the authorised activity or activities to which the licence relates.

(2) The Registrar is to give the licence holder written notice of any suspension or cancellation of the licence.

(3) A licence may be suspended for —

(a) a specified period; or

(b) until the happening of a specified event.

(4) In subsection (3) —

specified means specified in the notice under subsection (2).

38. Inspectors

(1) The Minister may, in writing, appoint a person as an inspector for the purposes of this Act.

(2) The Registrar is to issue to each inspector appointed under subsection (1) an identity card in a form approved by the Registrar.

(3) The Minister may revoke an appointment under subsection (1) at any time.

(4) An inspector appointed under subsection (1) must produce his or her identity card whenever requested to do so by a person in respect of whom the inspector has exercised, or is about to exercise, a power under this Part.

(5) Production of an identity card is evidence in any court of the appointment of the inspector to whom the identity card relates.

(6) A person who ceases to be an inspector must, as soon as practicable after so ceasing, return his or her identity card to the Registrar.

Penalty: $500.

39. General powers

(1) For the purposes of investigating whether this Act or a licence is being contravened, an inspector may, with such assistance as the inspector thinks necessary, at any reasonable time —

(a) enter and inspect any place, other than premises used as a residence, occupied by any person who is a licence holder;

(b) inspect, count, examine or mark for identification any plant in the place;

(d) inspect any document produced, make copies of it or take extracts from it, and remove it for as long as is reasonably necessary to make copies or extracts;

(e) take or remove for analysis or examination samples of or from, or specimens of, any plant to determine —

(i) the tetrahydrocannabinol content of the plant;

(ii) the variety or cultivar and the genetic provenance of the plant; or

(iii) whether the plant has been cultivated in accordance with a licence or that its possession is in accordance with a licence;

(f) submit any sample or specimen taken or removed under paragraph (e) to an approved analyst or an approved botanist for analysis or examination.

(2) An inspector appointed under section 38(1) may not exercise any powers under this Part if the inspector fails, on request, to produce his or her identity card for inspection by a person in respect of whom the inspector is about to exercise a power under this Part.

40. Powers of approved analyst or botanist

An approved analyst or botanist may for the purposes of this Act analyse or examine any sample or specimen taken or removed under this Act.

41. Requirement to notify Commissioner

If the Registrar or an inspector, other than a police officer, suspects that the cultivation or possession of a plant is not authorised under this Act, the Registrar or inspector is to notify the Commissioner of that suspicion.

42. Inspector may possess cannabis for purposes of this Act

An inspector is authorised to have cannabis in his or her possession in the exercise or performance of any power, function or duty conferred on the inspector by this Act.

43. Inspector’s powers additional to other powers

The powers of an inspector under this Part are in addition to, and do not limit, any powers that the inspector has under any other written law.

Part 6 — Miscellaneous

44. Term used in this Part

In this Part, unless the contrary appears —

departmental officer means a public service officer (as defined in section 3(1) of the Public Sector Management Act 1994) in the department that principally assists the Minister with the administration of this Act.

45. Registrar

The Minister, by notice in the Gazette, is to designate a departmental officer as the Registrar for the purposes of this Act.

46. Delegation by Registrar

(1) The Registrar may delegate to a departmental officer any power or duty of the Registrar under another provision of this Act.

(2) The delegation must be in writing signed by the Registrar.

(3) A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(4) A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5) Nothing in this section limits the ability of the Registrar to perform a function through an officer or agent.

47. Delegation by the Commissioner

(1) The Commissioner may delegate to a police officer who has the rank of Superintendent or a higher rank the duty of the Commissioner under section 6 to inquire into and report to the Registrar on matters relating to applications.

(2) The delegation must be in writing signed by the Commissioner.

(3) A person to whom the duty is delegated under this section cannot delegate that duty.

(4) A person performing the duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5) Nothing in this section limits the ability of the Commissioner to perform the duty through an officer or agent.

48. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2) Without limiting subsection (1), regulations may be made that —

(a) prescribe fees for applications, renewals and transfers under this Act;

(b) provide for the imposition and recovery of fees and charges in respect of —

(i) the inspection, supervision, surveillance and sampling by inspectors of plants cultivated or possessed under a licence for the purposes of ensuring compliance with the conditions of the licence; and

(ii) the analysis or examination of samples or specimens of plants taken under this Act;

(c) prescribe the amount of any fee or charge referred to in paragraph (b) or authorise the determination of that amount by the Registrar;

(d) provide for the establishment and maintenance of a register of —

(i) crops cultivated under a licence;

(ii) premises where industrial hemp is stored or processed; and

(iii) premises where industrial hemp seed is stored;

(e) provide for the procedure to be followed in and in relation to the taking, packaging and labelling of samples of plants taken under this Act;

(f) provide for the procedure to be followed in and in relation to —

(i) any analysis or examination under this Act; and

(ii) the admissibility and receipt of evidence relating to any thing obtained or received for an analysis or examination referred to in subparagraph (i);

(g) provide for the manner in which any thing is to be conveyed to and analysed or examined by an approved analyst, approved botanist or other expert;

(h) provide for the circumstances and manner in which a person may, on payment of the prescribed fee, be given information in the register; and

(i) prescribe measures to be taken by a licence holder to ensure the security of industrial hemp seed and crops of industrial hemp or harvested plants cultivated in accordance with a licence.

(3) If the regulations authorise a determination of the kind referred to in subsection (2)(c) the amount is to be determined by reference to the reasonable costs of providing the service to which the fee or charge relates.

Part 7 — Consequential amendments to the Misuse of Drugs Act 1981

49. The Act amended

The amendments in this Part are to the Misuse of Drugs Act 1981*.

[ Reprinted as at 11 January 2002.*

For subsequent amendments see Act No. 9 of 2003.]

50. Section 3 amended

Section 3(1) is amended by inserting the following definitions in the appropriate alphabetical positions —

“

industrial hemp has the meaning given to that term in section 3(1) of the Industrial Hemp Act 2004;

industrial hemp seed has the meaning given to that term in section 3(1) of the Industrial Hemp Act 2004;

processed industrial hemp means any product made from industrial hemp or industrial hemp seed that —

(a) does not contain more than 0.35% of tetrahydrocannabinol;

(b) does not contain viable whole cannabis seed; and

”.

51. Section 4 amended

(1) Section 4(1) is amended by deleting “The” and inserting instead —

“ Subject to subsection (4), the ”.

(2) After section 4(3) the following subsection is inserted —

“

(4) This Act does not apply to processed industrial hemp.

”.

52. Section 6 amended

Section 6(2)(a) is amended by inserting after “Poisons Act 1964” —

“ or the Industrial Hemp Act 2004 ”.

53. Section 7 amended

Section 7(2) is amended by inserting after “Poisons Act 1964” —

“ or the Industrial Hemp Act 2004 ”.

54. Section 8A inserted

After section 8 the following section is inserted in Part II —

“

8A. Defences relating to industrial hemp or industrial hemp seed

(1) In proceedings against —

(a) a person who may process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or

(b) an employee, agent or contractor of a person referred to in paragraph (a),

for an offence against section 5(1)(a)(i) involving the manufacture or preparation of a prohibited drug or prohibited plant for use, it is a defence for the person to prove that the prohibited drug or prohibited plant is industrial hemp or industrial hemp seed.

(2) In proceedings against —

(a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or

(b) an employee, agent or contractor of a person referred to in paragraph (a),

for an offence against section 5(1)(a)(ii) involving the manufacture, preparation, sale, supply or use of a prohibited drug or prohibited plant, it is a defence for the person to prove that the prohibited drug or prohibited plant is industrial hemp or industrial hemp seed.

(3) In proceedings against —

(a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or

(b) an employee, agent or contractor of a person referred to in paragraph (a),

for an offence against section 5(1)(c) involving being knowingly concerned in the management of any premises used for a purpose referred to in section 5(1)(a), it is a defence for the person to prove that the prohibited drug or prohibited plant is industrial hemp or industrial hemp seed.

(4) In proceedings against —

(a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or

(b) an employee, agent or contractor of a person referred to in paragraph (a),

for an offence against section 6(1)(a), it is a defence for the person to prove that the prohibited drug is industrial hemp or industrial hemp seed.

(5) In proceedings against —

(a) a person who may process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or

(b) an employee, agent or contractor of a person referred to in paragraph (a),

for an offence against section 6(1)(b) involving manufacturing or preparing a prohibited drug, it is a defence for the person to prove that the prohibited drug is industrial hemp or industrial hemp seed.

(6) In proceedings against —

(a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or

(b) an employee, agent or contractor of a person referred to in paragraph (a),

for an offence against section 6(1)(c) involving selling or supplying, or offering to sell or supply a prohibited drug to another, it is a defence for the person to prove that the prohibited drug is industrial hemp or industrial hemp seed.

(7) In proceedings against —

(a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or

(b) an employee, agent or contractor of a person referred to in paragraph (a),

for an offence against section 6(2) involving possession or use of a prohibited drug, it is a defence for the person to prove that the prohibited drug is industrial hemp or industrial hemp seed.

(8) In proceedings against —

(a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or

(b) an employee, agent or contractor of a person referred to in paragraph (a),

for an offence against —

(c) section 7(1)(a) involving possessing or cultivating a prohibited plant with intent to sell or supply the prohibited plant or any prohibited drug obtainable therefrom to another; or

(d) section 7(1)(b) involving selling or supplying, or offering to sell or supply, a prohibited plant to another,

it is a defence for the person to prove that the prohibited plant is industrial hemp or industrial hemp seed.

(9) In proceedings against —

(a) a person who may cultivate, harvest or process industrial hemp under a licence granted under the Industrial Hemp Act 2004; or

(b) an employee, agent or contractor of a person referred to in paragraph (a),

for an offence against section 7(2) involving having in his or her possession or cultivating a prohibited plant, it is a defence for the person to prove that the prohibited plant is industrial hemp or industrial hemp seed.

”.

Part 8 — Consequential amendment to the Poisons Act 1964

55. The Act amended

(1) The amendment in this Part is to the Poisons Act 1964*.

[* Reprinted as at 22 January 1999.

For subsequent amendments see Western Australian Legislation Information Tables for 2002, Table 1, p. 300 and Act No. 9 of 2003 and Gazette 10 October 2003 p. 4403-4 and p. 4404-5.]

(2) After section 7 the following section is inserted in Part I —

“

7A. Application: industrial hemp, industrial hemp seed and processed industrial hemp

This Act does not apply to —

(a) industrial hemp or industrial hemp seed as defined in section 3(1) of the Industrial Hemp Act 2004; or

(b) processed industrial hemp as defined in section 3(1) of the Misuse of Drugs Act 1981.

”.

dline

Notes

1 This is a compilation of the Industrial Hemp Act 2004 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Short title	Number and Year	Assent	Commencement
Industrial Hemp Act 2004	1 of 2004	12 Mar 2004	19 May 2004 (see s. 2 and Gazette 18 May 2004 p. 1561)
Industrial Hemp Amendment Act 2018 Pt. 2	15 of 2018	28 Aug 2018	22 Sep 2018 (see s. 2 and Gazette 21 Sep 2018 p. 3533)

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

application 3(1)

approved 3(1)

approved analyst 3(1)

approved botanist 3(1)

authorised activity 3(1)

authorised premises 3(1)

cannabis 3(1)

Commissioner 3(1)

Department 3(1)

departmental officer 44

external serious drug offence 3(1)

industrial hemp 3(1)

industrial hemp seed 3(1)

inspector 3(1)

licence 3(1)

licensee 3(1)

plant 3(1)

premises 3(1)

process 3(1)

Registrar 3(1)

relevant person 10(1), 12(1)

serious drug offence 3(1)

specified 37(4)

transferee 21(1)

Western Australia

Industrial Hemp Act 2004

Western Australia

Industrial Hemp Act 2004

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used in this Act 2

Part 2 — Licensing

Division 1 — Licence required to cultivate, harvest or process industrial hemp

Licensing requirement 4

Division 2 — Application for and grant of a licence or a renewal or transfer of a licence

Applications 4
Investigations and inquiries relating to applications 5
Application for licence by individual 5
Grant of licence to an individual 5
Application for a licence by partnership 6
Grant of licence to a partnership 7
Application for licence by a body corporate 8
Grant of licence to a body corporate 8
Notice of refusal of application 9
Issue of licence 9
Duration of licence 10
Application for renewal of licence 10
Grounds for refusing to renew a licence 10
Conditions 10
Amendment of licence 11
Return of licence no longer in force 12
Transfer of licence 12

Division 3 — Changes in partnership or body corporate

Loss of member etc., notice to be given to Registrar 13
New member in licensed partnership 13
New person in management of corporate member of licensed partnership 14
New person in management of licensed body corporate 15
Licence ceases if changes not approved 15
Offence to make management changes without applying for approval 16

Definitions and thresholds

Industrial hemp is defined as cannabis whose leaves and flowering heads contain not more than 1% THC (s 3). This is a statutory botanical and chemical threshold for distinguishing “industrial hemp” from other cannabis.
Processed industrial hemp is created as a separate statutory concept by amendment to the Misuse of Drugs Act 1981 and is defined to have a lower THC ceiling of 0.35%, must not contain viable whole cannabis seed and must not be manufactured in a form to be inhaled (s 50). The Misuse of Drugs Act is amended to exclude processed industrial hemp from certain prohibitions (s 51).

Licensing as gatekeeping mechanism

A licence is required to cultivate, harvest or process industrial hemp (s 4). The statutory licence is the primary instrument through which the State authorises and controls commercial activity involving hemp.
Licences are issued by the Registrar, who is a designated departmental officer (s 45). The Registrar’s decision-making is supported by a statutory investigatory process that can involve the Commissioner of Police providing a report on an application (s 6).

Eligibility and character tests

Eligibility criteria impose age, character, fitness and resource thresholds. For individuals: age 18, “person of good character and repute”, “fit and proper person”, sufficient material, human and financial resources, and prescribed qualifications (s 8(2)).
For partnerships and bodies corporate corresponding requirements apply to “relevant persons” connected with management or conduct (ss 10, 12). The Registrar must refuse if a relevant person has been convicted of a “serious drug offence” or an “external serious drug offence” within the preceding 10 years (ss 8(3)(a), 10(4)(a), 12(4)(a)), or if there is an association with a person not of good character or similarly convicted (ss 8(3)(b), 10(4)(b), 12(4)(b)).

Licence terms and conditions

A licence describes authorised premises (s 14) and continues for the period stated up to a maximum of 3 years (s 15). Conditions are set by regulation and may be imposed by the Registrar at issue, renewal or transfer (s 18). Prescribed conditions may address security of premises, record-keeping, reporting, harvesting and disposal, processing and disposal of harvested material and crop residue, and the inspection, supervision and surveillance of plants and harvested material (s 18(3)(a)-(e)).

Regulatory tools for oversight and enforcement

The Registrar must keep a register recording prescribed particulars of licences (s 30); the register is inspectable by the public for a fee (s 31). The Registrar may issue certified statements from the register used as evidence (s 32).
Inspectors (appointed by the Minister) and police officers have powers to enter and inspect non-residential premises occupied by licensees, sample plants, remove documents temporarily, and submit samples to approved analysts or botanists for THC testing and provenance checks (ss 38-40). Inspectors must produce identity cards (s 38(2), (4)), and are authorised to possess cannabis in the course of performing duties (s 42).

Interaction with drug and poisons regimes

The Act removes from the Misuse of Drugs Act and the Poisons Act certain hemp materials. Processed industrial hemp is explicitly excluded from the operation of the Misuse of Drugs Act (s 51(2) inserted). The Poisons Act is amended to exclude industrial hemp, industrial hemp seed and processed industrial hemp (s 55). The Misuse of Drugs Act is also amended to create a set of statutory defences for persons licensed under this Act and their employees, agents or contractors when prosecuted for particular offences if they prove the material involved is industrial hemp or industrial hemp seed (s 54 inserting s 8A).

Administrative structure and discretion

The Registrar has broad investigative and discretionary powers and can delegate to departmental officers (s 46). The Commissioner may delegate his reporting function to a Superintendent or higher (s 47). The appeal route from Registrar decisions is to the Minister, whose determination is final (s 36(8)-(9)), and the Minister may order limited non-disclosure of parts of the Commissioner’s report (s 36(11)-(13)).

Regulation-making powers and cost recovery

Regulations may prescribe application fees and fees for inspection, surveillance and analysis (s 48(2)(a)-(b)). If regulations authorise determinations of amounts then those amounts are to be determined by reference to the reasonable costs of providing the service (s 48(3)). Regulations may also prescribe procedures for sampling, analysis and evidence chain-of-custody and may require security measures for seed and crops (s 48(2)(e)-(i)).

Together these concepts create a framework that distinguishes regulated hemp activity from prohibited cannabis activity by statutory definitions and by licensing, while providing police and departmental oversight and the power to exclude certain hemp products from drug and poisons controls where statutory thresholds and licensing compliance are met.

Primary regulated persons

Prospective and existing commercial actors who wish to cultivate, harvest or process industrial hemp in Western Australia. A licence is required for those activities (s 4). The licensing apparatus applies to individuals, partnerships and bodies corporate (ss 7, 9, 11) and to individuals jointly where a licence is issued to two or more persons (s 3(2)-(3)).

Management and connected persons

“Relevant persons” for partnerships and corporate applicants are captured: members of the partnership and individuals concerned in the management or conduct of a corporate member or a licensed body corporate (ss 10(1), 12(1)). The eligibility criteria operate at the level of these relevant persons: age, character, fitness and qualifications (ss 8-12). Where a licence is issued jointly to multiple persons, offences and obligations apply to each partner as if committed by each (s 3(3)).

Employees, agents and contractors

The Misuse of Drugs Act amendments identify licensed persons’ employees, agents and contractors as beneficiaries of statutory defences for specified offences where the material in question is industrial hemp or industrial hemp seed (s 54 inserted s 8A). That creates legal protection for persons employed or contracted to perform licensed activities, but those protections are conditional on proving the material was industrial hemp or seed.

Regulatory and enforcement agencies

The Registrar (a departmental officer designated by Gazette under s 45) is the administrative decision-maker for licences, maintaining the register (s 30), issuing licences (s 14), amending and cancelling licences (s 19, s 37). The Commissioner of Police is statutorily linked to the licensing process: the Registrar may refer an application to the Commissioner, who must inquire and report within 30 days unless extended (s 6). The Commissioner may delegate the inquiry duty to a Superintendent or higher (s 47).

Inspectors and analysts

Inspectors appointed by the Minister (s 38) and police officers (s 3 definition of inspector) have powers of inspection and sampling (s 39). Approved analysts and botanists (terms defined with reference to the Misuse of Drugs Act) may analyse samples submitted under the Act (s 40). The Registrar is empowered to certify entries in the register and issue certified copies of licences (ss 32, 34).

The public and adjacent businesses

Processed industrial hemp and industrial hemp seed are excluded from certain provisions of the Misuse of Drugs Act and the Poisons Act (s 50-55). This affects wholesalers, processors and retailers who deal in processed hemp products that meet the statutory thresholds: those products are outside the Misuse of Drugs Act and Poisons Act controls as prescribed. However, the processed industrial hemp definition imposes a 0.35% THC ceiling and other limitations (s 50), so businesses dealing with products must ensure compliance.

Roles bearing compliance costs

Licence holders bear day-to-day compliance costs: security, record-keeping, facilitating inspections, submitting samples for analysis and paying prescribed fees for applications, renewals, transfers, inspections and analyses (s 5(2), s 18, s 48). The regulations can specify measures to ensure security of seed and crops and may authorise recovery of reasonable costs for inspection or analysis (s 48(2)(b), (3)).

Parties subject to criminal penalties and civil administrative actions

Offences and penalties apply to unauthorised cultivation/harvesting/processing (s 4), false or misleading information in applications (s 28), contravention of licence conditions (s 29), failure to notify personnel changes in licensed entities (ss 22-27), and certain failures to produce licences (s 35). The Registrar can suspend or cancel licences on specified grounds (s 37) and the Minister is the appeal authority (s 36).

In summary, the Act regulates a defined set of commercial actors and associated persons and assigns administrative and enforcement roles to state agencies and officers. It also affects downstream actors who handle processed hemp products by altering the application of drug and poisons legislation to those products when statutory thresholds and licensing requirements are met.

Duties imposed on regulated persons

Licence requirement: No person may cultivate, harvest or process industrial hemp except under and in accordance with a licence (s 4). The offence carries a penalty of $10,000.
Application duties: Applications must be in an approved form, accompanied by prescribed fees and any other information prescribed by regulation; non-compliance permits the Registrar to decline to deal with the application (s 5(2)-(3)).
Eligibility and disclosure: Applicants must demonstrate age, character, fitness, sufficient material/human/financial resources and any prescribed qualifications (s 8(2), s 10(3), s 12(3)). Applicants must disclose associations and criminal history; conviction for serious or external serious drug offences within 10 years is a mandatory ground for refusal (ss 8(3)(a), 10(4)(a), 12(4)(a)).
Notifications and change processes: Licensees must notify the Registrar within 14 days of loss of a member or other management changes (s 22(2)). Inclusion of new partners or managers requires an application and advance notice periods (s 23(3), s 24(3), s 25(3)). Failure to obtain approval before making management changes is an offence (s 27).
Record-keeping and security: The licence will be subject to conditions (s 18), and regulations may prescribe security measures, record-keeping and procedures for harvesting/disposal of crops and processing residues (s 18(1)-(3), s 48(2)(i)).

Duties arising from inspection and sampling

Cooperation with inspectors: Inspectors may enter and inspect non-residential premises occupied by a licensee, count or mark plants, require production of documents, inspect and copy documents, and take samples for analysis (s 39(1)(a)-(f)). Licensees must produce licences to inspectors at premises used for authorised activity (s 35). Samples may be submitted to approved analysts or botanists for THC testing and provenance examination (s 39(1)(f), s 40).

Financial duties

Payment of fees: Application, renewal and transfer fees are prescribed by regulation (s 5(2)(b), s 48(2)(a)). Regulations may also authorise fees for inspection, surveillance and analysis and allow recovery of reasonable costs for services provided (s 48(2)(b), (3)).

Administrative rights and processes

Right to a licence and reasons: The Registrar must grant licences if statutory criteria are met (s 8(2), s 10(3), s 12(3)). If a licence is refused, the Registrar must give written notice (s 13). A person aggrieved by a Registrar decision may appeal to the Minister within 30 days (s 36(2)). Applicants may request the Registrar’s written reasons, which must be provided within 14 days (s 36(3)-(6)).
Renewal and transfers: Licence holders may apply to renew (must do so not later than 56 days before expiry, s 16(2)) and may request transfers subject to the same grant criteria as original applications (s 21). The Registrar may amend licences (s 19).

Enforcement powers and licensee protections

Suspension and cancellation: The Registrar may suspend or cancel licences on a range of grounds, including contravention of licence conditions, commission of offences under this Act or Misuse of Drugs Act, non-payment of fees, false information or cessation of the authorised activity (s 37(1)(b)-(g)). The Registrar must provide written notice of suspension or cancellation (s 37(2)). Suspension may be for a period or until a specified event (s 37(3)).
Evidentiary rights: The Registrar may issue certified statements from the register and certified copies of licences, which are admissible in court as evidence (ss 32, 34).

Procedural protections and confidentiality

The appeal process grants a right to reasons and a right to appeal to the Minister; however, the Minister’s decision is final and the Minister may order that parts of the Commissioner’s report be withheld if disclosure would reveal exempt material under the Freedom of Information Act (s 36(11)-(13)). Thus applicants have procedural avenues but face limits on disclosure.

Defences in drug prosecutions

The Misuse of Drugs Act amendments inserted by this Act create specific defences for persons who may cultivate, harvest or process industrial hemp under a licence (and their employees, agents or contractors) for particular drug offences if they prove that the material is industrial hemp or industrial hemp seed (s 54 inserting s 8A). These are defendant-borne statutory defences in specified circumstances.

Registrar and agency duties

The Registrar must investigate applications (s 6(1)), may refer applications to the Commissioner for inquiry and report (s 6(2)), keep registers (s 30), and provide certified statements and copies (ss 32, 34). The Commissioner must respond to referral requests within 30 days (s 6(3)), subject to extensions (s 6(4)). The Minister appoints inspectors and may revoke appointments (s 38).

In short, the Act imposes a mix of pre-authorisation duties (eligibility, disclosure, fees), ongoing compliance duties (conditions, record-keeping, security), statutory inspection rights for the State, and limited statutory protections in criminal prosecutions for licensed activity. Administrative review is available but final decision-making rests with the Minister for appeals from the Registrar.

Monetary penalties and criminal offences

A licence is a statutory prerequisite and breach is an offence with a $10,000 penalty (s 4). Other monetary penalties in the Act include: false or misleading information in relation to an application , penalty $5,000 (s 28(1)); contravening a condition of a licence , penalty $5,000 (s 29(1)); failure to return a licence that has expired or been cancelled , penalty $1,500 (s 20); failure to notify the Registrar of loss of a partner or relevant manager within 14 days , penalty $2,000 (s 22(2)); inclusion of new partners or managers without required application , penalty $2,000 (s 27(1)-(2)); failure by an ex-inspector to return an identity card , penalty $500 (s 38(6)); and failure to produce a licence to an inspector at authorised premises , penalty $1,500 (s 35(3)).

Enforcement powers , inspection and sampling

Inspectors (appointed by the Minister) and police officers can exercise enforcement powers under Part 5. Inspectors may enter and inspect any place occupied by a licence holder excluding premises used as a residence (s 39(1)(a)). They may inspect, count, examine or mark plants, require production of documents, inspect and remove documents for copying for reasonable time, take or remove samples for analysis to determine THC content or variety, and submit samples to approved analysts or botanists (s 39(1)(b)-(f)). Inspectors must produce identity cards on request (s 38(2), (4)); an inspector who fails to produce the identity card may not exercise powers under the Part (s 39(2)).

Analytical and evidentiary procedures

Samples taken under s 39 may be analysed by approved analysts or botanists (s 40). Regulations may prescribe procedures for taking, packaging and labelling samples and for the analysis and admissibility of results (s 48(2)(e)-(f)). The Registrar can certify matters from the register and certified copies of licences are admissible in court (ss 32, 34). A document purporting to be a certified copy is to be taken to be such unless the contrary is proved (s 34(3)).

Administrative sanctions and licence management

The Registrar may suspend or cancel a licence under enumerated grounds (s 37). Grounds include contravention of licence conditions, commission of offences under the Act or the Misuse of Drugs Act, materials or persons associated with the applicant having recent serious drug convictions, non-payment of fees, false or misleading application information, or cessation of the authorised activity (s 37(1)(b)-(g)). The Registrar must give written notice of suspension/cancellation (s 37(2)). Suspension may be time-limited or conditional on an event (s 37(3)).

Appeals and finality

Decisions of the Registrar to refuse to grant, renew, transfer, suspend, cancel or amend a licence may be appealed to the Minister within 30 days (s 36(1)-(2)). The Registrar must supply written reasons for decisions on request (s 36(3)-(6)). The Minister can confirm, vary or reverse the Registrar’s decision and the Minister’s determination is final (s 36(8)-(9)). The Minister must give notice of reasons within 7 days of determinative action (s 36(10)). The Minister may also order that the source or content of a Commissioner’s report not be disclosed if it would disclose exempt matter under the Freedom of Information Act (s 36(11)-(13)), which limits transparency for parts of the administrative record.

Interaction with drug offences and statutory defences

The Act effects consequential amendments to the Misuse of Drugs Act 1981. Processed industrial hemp is excluded from the Misuse of Drugs Act (s 51(2)). The amendments insert a new s 8A in the Misuse of Drugs Act creating defendant-borne defences for licensed persons and their employees, agents or contractors in specified offences if they can prove the material was industrial hemp or industrial hemp seed (s 54 inserted s 8A). These defences operate within criminal proceedings and are conditional on the defendant’s proof.

Evidence and State powers

Inspectors are authorised to have cannabis in their possession for the purposes of performing duties under the Act (s 42). The Act expressly states inspector powers are additional to other statutory powers (s 43). Removal of documents for copying is permitted for a reasonable time (s 39(1)(d)). Regulations can settle procedures for analysis and admissibility of related evidence (s 48(2)(f)).

Cost-recovery and regulatory funding

Regulations may set fees for applications, renewals, transfers and fees for inspection, surveillance and sampling. Where regulations provide for the determination of amounts by the Registrar, fees are to be set by reference to reasonable costs of providing the service (s 48(2)(a)-(c), (3)). This establishes a statutory route for the regulatory regime to recover at least some enforcement and compliance costs from regulated parties.

Taken together, the enforcement architecture mixes criminal offences with administrative sanctions, inspection and sampling powers backed by evidentiary rules, while providing for administrative cost recovery and limited statutory defences where material can be shown to meet the Act’s hemp definitions.

Amendments to the Misuse of Drugs Act 1981

The Industrial Hemp Act makes detailed consequential amendments to the Misuse of Drugs Act 1981. The Misuse of Drugs Act’s s 3(1) is amended to add definitions of “industrial hemp”, “industrial hemp seed” and “processed industrial hemp” (s 50). “Processed industrial hemp” is defined to have a THC limit of 0.35%, must not contain viable whole cannabis seed and must not be manufactured in a form to be inhaled (s 50). Section 4 of the Misuse of Drugs Act is amended so that, subject to s 4(4), the Act does not apply to processed industrial hemp (s 51). The Act thus removes certain processed hemp products from the scope of the Misuse of Drugs Act where they meet the statutory definition.
The Misuse of Drugs Act receives a new s 8A (inserted by s 54 of the Industrial Hemp Act), which establishes multiple statutory defences for licensed persons (and their employees, agents and contractors) in proceedings under the Misuse of Drugs Act for various offences listed in s 8A, provided the defendant proves that the substance or plant in question was industrial hemp or industrial hemp seed. The inserted s 8A addresses manufacturing, possession, sale and supply offences and sets out the defence scope in many permutations. These are defendant-borne statutory defences applicable when activities are authorised under the Industrial Hemp Act.

Interaction with the Poisons Act 1964

The Industrial Hemp Act amends the Poisons Act 1964 by inserting s 7A into Part I, expressly stating that the Poisons Act does not apply to industrial hemp, industrial hemp seed or processed industrial hemp as defined (s 55). That exclusion changes the regulatory overlay for those materials and removes them from the operation of poison controls where the statutory definitions apply.

Administrative law and Police Act linkages

The Act incorporates the Commissioner of Police (as defined by the Police Act 1892) in the licensing process. The Registrar may refer applications to the Commissioner for inquiry and report (s 6(2)); the Commissioner is mandated to comply within 30 days (s 6(3)). The Commissioner may delegate the duty to a Superintendent or higher under s 47. The involvement of the Commissioner means the criminal intelligence, records and police vetting functions available under the Police Act will be operationally involved in assessing fitness and propriety under the Industrial Hemp Act.

Freedom of Information Act intersection

The appeal process (s 36) permits the Minister to order that a report provided by the Commissioner to the Registrar, or the contents/source of information in such a report, not be disclosed to an aggrieved person if it would disclose exempt matter under the Freedom of Information Act 1992 (s 36(11)). The FOI Act therefore governs confidentiality in parts of the administrative record and provides grounds for limiting disclosure to applicants.

Evidence and criminal procedure

The Act’s provisions on sampling, analysis and the admissibility of evidence (s 48(2)(e)-(f)) point to an interaction between regulatory procedures and criminal evidentiary processes. Regulations may prescribe procedures for sampling and the admissibility of analytical results in prosecutions or administrative proceedings, interfacing with rules of evidence and criminal process under other statutes like The Criminal Code and the Misuse of Drugs Act.

Delegation and public sector law

The Registrar is a departmental officer designated under s 45 and may delegate powers in writing to other departmental officers (s 46). The Commissioner’s delegation powers are set out in s 47. These delegations are governed by public sector management principles and the Public Sector Management Act definitions, referenced in the Act (s 44 definition of departmental officer).

Regulatory fee recovery and administrative law limits

Regulations may prescribe fees and charges for inspections, sampling and analysis, and such amounts determined by the Registrar must be by reference to reasonable costs (s 48(3)). Any fee-setting that affects business entitlements will sit alongside administrative law principles, and potential judicial scrutiny might arise under general administrative law if decisions are unreasonable or lack procedural fairness, although the Act itself sets out its own appeal channel (Ministerial appeal, s 36).

In short, the Industrial Hemp Act modifies the larger statutory landscape by carving out specific hemp materials from the Misuse of Drugs Act and the Poisons Act, embedding police vetting and reporting into the licensing process, delegating administrative functions to public servants, and configuring interaction with FOI principles and evidentiary procedures through regulation-making powers.

Statutory amendments recorded in the Act and the compilation table

The Act was originally assented to on 12 March 2004 and commenced by proclamation on 19 May 2004 (compilation table). The compilation table identifies a substantive amendment: the Industrial Hemp Amendment Act 2018 (No. 15 of 2018) Part 2, assented 28 August 2018 and commenced 22 September 2018 (compilation table). Section 3 shows an amendment note: “[Section 3 amended: No. 15 of 2018 s. 4.]” This indicates that the 2018 amendment changed at least the definitions in s 3, although all textual amendments effected by the 2018 Act are incorporated into the consolidated text in the source provided.

Consequential amendments to other Acts

Part 7 of the Industrial Hemp Act lists consequential amendments to the Misuse of Drugs Act 1981. These include insertion of definitions (industrial hemp, industrial hemp seed, processed industrial hemp) (s 50), an amendment to s 4 to exclude processed industrial hemp from that Act (s 51), and insertion of a new s 8A establishing specific statutory defences in proceedings involving industrial hemp or industrial hemp seed (s 54). These are expressed as direct amendments and therefore part of the Act’s consequential amendment package.
Part 8 inserts s 7A into the Poisons Act 1964 to exclude industrial hemp, industrial hemp seed and processed industrial hemp from the Poisons Act’s operation (s 55). These are formal amendments set out in the Act.

Scope of the 2018 Amendment

The text includes a marginal note that s 3(1) was amended by No. 15 of 2018 s 4. The compilation table confirms the 2018 Amendment Act Pt 2. The 2018 amendments are reflected in the integrated definitions (e.g. the Act’s definition of industrial hemp seed and the references to “processed industrial hemp” in the Misuse of Drugs Act). Because the source is a consolidated text it incorporates previous amendments up to and including the 2018 Act.

Regulatory power evolution and delegated rule-making

The Act provides broad regulation-making power in s 48 that contemplates prescriptive rules on fees, sampling, chain of custody, security measures and forms. The details of subsequent regulatory instruments (the regulations themselves) are not included in the source; the Act therefore establishes continuing delegated legislation pathways, and the volume and character of regulatory detail would be found in regulations made under s 48 rather than in the statute.

Notational history in the consolidated version

The source includes footnote-style notes and the compilation table. The defined terms list at the end is described as not part of the law but provides a consolidated mapping of defined terms to their provisions. The presence of the 2018 amendment entries confirms at least one identified legislative change post-enactment. The insertion of the Misuse of Drugs Act s 8A and Poisons Act s 7A are consequential structural amendments done contemporaneously with or subsequent to the Industrial Hemp Act.

What the source does not supply

The Act text and compilation table show the legislative path and immediate consequential amendments, but the source text does not provide the full text of the 2018 amending instrument separate from the consolidated text, nor does it list any regulations made under s 48. It therefore records primary and consequential amendments but not subordinate instruments or further amendments beyond 2018.

Practical effect of amendments

The 2018 amendments (and consequential changes to Misuse of Drugs and Poisons Acts) altered thresholds and legal status in practice: the introduction of the 0.35% THC ceiling for “processed industrial hemp” in the Misuse of Drugs Act (s 50) reduces the allowable THC concentration for processed products versus raw industrial hemp (1% in the Industrial Hemp Act s 3), and the statutory defences in the Misuse of Drugs Act formalise evidential protections for licensed actors.

In short, the Act was enacted in 2004 and formally amended in 2018; consequential amendments to the Misuse of Drugs Act and Poisons Act are integral parts of its operation. The source provides consolidation up to the 2018 changes but does not include any subordinate regulations or later amending Acts beyond 2018.

No reported litigation or judicial decisions are recorded within the Act text supplied. The statute itself identifies administrative and appeal processes but does not cite or summarise any cases. Relevant features from the Act that bear on potential litigation include:

The appeal route from the Registrar’s decisions is to the Minister (s 36). The Minister’s determination is final (s 36(8)-(9)), which limits administrative appeal within the statutory scheme and shapes the locus of review: ministerial decision-making rather than tribunal review is the prescribed remedy in the Act. This structure can have implications for judicial review in the courts (judicial review of administrative action under general administrative law principles), but the Act does not itself provide for merits review beyond the Ministerial appeal.
The Act permits the Minister to withhold parts of the Commissioner’s report from the aggrieved person where disclosure would reveal exempt matter under the Freedom of Information Act (s 36(11)-(13)). That provision may be a factual predicate for challenges in administrative law or FOI proceedings, but the Act text does not reference any cases.
Evidentiary arrangements are provided for certified statements from the register and certified copies of licences to be admissible in court (ss 32, 34). Those provisions indicate how administrative records will be used in litigation, but the Act does not identify any precedent or litigation history.
The Act inserts a defendant-borne statutory defence into the Misuse of Drugs Act for licensed persons in specified prosecutions (s 54 inserted s 8A). Potential litigation could arise from evidentiary disputes about whether a substance meets the statutory definition of industrial hemp or processed industrial hemp, and the Act anticipates this by authorising sampling, analysis, and chain-of-custody procedures to be specified by regulation (s 48(2)(e)-(g)). The Act itself, however, does not refer to any judicial determinations interpreting these provisions.

Because the consolidated Act does not list or summarise judicial decisions, readers seeking litigation precedents or case law interpreting the Industrial Hemp Act, its definitions, the inserted Misuse of Drugs Act defences, or related regulatory instruments will need to consult legal databases, court records and subsequent decisions not contained in this statute text. The absence of litigation history in the source does not mean litigation has not occurred; it only means no cases are named or summarised in this legislative text.

Timing and administrative deadlines

Renewal timing: An application for renewal must be made not later than 56 days before the licence expires (s 16(2)). Late renewals may therefore risk administrative gaps and potential unlicensed activity if the holder fails to plan ahead.
Commissioner report timing: The Commissioner must comply with a reference by the Registrar within 30 days but the Registrar may extend that period in particular cases (s 6(3)-(4)). Application processing may be stalled by police inquiries if the Registrar does not extend, and applicants depend on police cooperation.

Discrepancy in THC thresholds

The statute sets different THC ceilings: raw industrial hemp is defined as cannabis with leaves and flowering heads containing not more than 1% THC (s 3); processed industrial hemp as introduced into the Misuse of Drugs Act must not contain more than 0.35% THC (s 50). Processors and downstream businesses must therefore manage two different ceilings: products classified as “processed industrial hemp” face a stricter 0.35% limit and additional restrictions (no viable whole seed; not manufactured to be inhaled). This split can complicate testing regimes and product development.

Evidentiary burden on defendants

The Misuse of Drugs Act defences inserted by this Act are framed so that licensed persons and their employees/agents/contractors must “prove” that the substance or plant is industrial hemp or industrial hemp seed to benefit from the defence (s 54 inserted s 8A repeatedly). That shifts evidentiary burden onto the defendant and makes robust sampling, testing and chain-of-custody documentation crucial.

Ministerial finality and limited disclosure

Appeals from Registrar decisions go to the Minister whose determination is final (s 36(8)-(9)). The Minister may also order that parts of the Commissioner’s report not be disclosed if it contains exempt matter under FOI law (s 36(11)-(13)). Applicants face a final administrative decision-maker rather than an independent merits tribunal; that may affect prospects for challenge and the nature of administrative remedies.

Obligations on structural changes in business

Adding partners or management requires advance notice and approval: applications must be made not less than 28 days before inclusion of a new member or manager (ss 23(3), 24(3), 25(3)). If the Registrar refuses, the licence ceases 14 days after notification unless withdrawal or successful re-application occurs (s 26). Failure to obtain approval before making such changes is an offence with a $2,000 penalty (s 27). For businesses planning reorganisations or investment deals this creates a sequencing and compliance constraint.

Inspection scope and premises limits

Inspectors may enter and inspect "any place, other than premises used as a residence, occupied by any person who is a licence holder" (s 39(1)(a)). The statutory exclusion of residential premises limits state powers in one respect, but if any authorised activity occurs on residential premises this will be a compliance exposure because such premises cannot be entered without warrant powers under other laws. Licensees need to be clear on where authorised activity is conducted and ensure authorised premises are non-residential or accessible for inspection.

Record-keeping, security and fees

Conditions may require security measures, record-keeping and compliance with inspection regimes (s 18(3), s 48(2)(i)). Regulations can impose fees for inspection, surveillance and sampling; fees determined by the Registrar must reflect “reasonable costs” (s 48(2)(b), (3)). Businesses should budget for recurring compliance fees and potential additional costs for sample analysis.

Confidentiality and non-disclosure of police material

The Minister may order that parts of the Commissioner’s report be withheld from appellants where disclosure would reveal FOI-exempt matter (s 36(11)). This can create opacity around the reasons for refusal if based on police intelligence, complicating an applicant's ability to prepare a response or challenge.

Delegation and administrative variability

The Registrar and Commissioner may delegate certain duties (ss 46-47). Delegation means operational discretion may be exercised by a range of departmental officers or police delegates: applicants should expect variation in practice depending on which officer exercises delegated powers, and should document interactions carefully.

Regulatory detail is in subordinate instruments

Many practical and procedural specifics are left to regulations: form of applications, prescribed qualifications, fees, sampling procedures, analysis procedures and security measures (s 5(2), s 18(3), s 48). Compliance risk therefore includes the need to monitor and adapt to regulatory instruments not contained in the Act.

Statutory defences are narrow and conditional

The defences in the Misuse of Drugs Act (inserted s 8A) only apply in specified offences and only if the defendant proves the material was industrial hemp or industrial hemp seed. Where processed industrial hemp is concerned, different statutory exclusions apply (s 51). Practitioners should note which criminal provisions are covered by the defences and which are not.

In short, the Act creates a comprehensive scheme but leaves much of the operational detail to regulation, introduces different chemical thresholds for raw and processed hemp, and creates administrative gates and documentary evidentiary requirements that can be operationally demanding and legally consequential if not followed closely.

Pre-application preparation

Confirm the product and activity fall within statutory definitions: determine whether the plant material is industrial hemp as defined (s 3) and whether any downstream product will meet the “processed industrial hemp” definition in the Misuse of Drugs Act (as amended by s 50). The raw-material ceiling is 1% THC (s 3); processed products have a 0.35% THC ceiling and additional constraints (s 50). If processing will produce a product with THC <0.35% and meeting other requirements, the product may be excluded from the Misuse of Drugs Act; if not, full drug controls apply.
Ensure eligible persons and “relevant persons” meet the statutory thresholds: age 18, good character and repute, fitness to be concerned in the activity, sufficient material/human/financial resources and any prescribed qualifications (s 8(2), s 10(3), s 12(3)). Check criminal records for serious drug offences or external serious drug offences within the last 10 years, and review associations that might be viewed as problematic by the Registrar (s 8(3), s 10(4), s 12(4)).

Application process

Complete the application in the approved form, pay prescribed fees, and provide any other information the regulations require (s 5(2)). The Registrar may decline to deal with incomplete applications (s 5(3)). Factor in the Commissioner’s 30-day reporting period if the Registrar refers the application for police inquiry and reporting (s 6(2)-(4)).
If applying as a partnership or company, compile a clear statement of relevant persons, their roles and qualifications, financial resources and evidence of good character (ss 9-12). For partnerships, ensure each partner meets the criteria and be aware that offences under the Act may be treated as committed by each partner (s 3(3)).

Operational compliance once licensed

Understand and implement licence conditions: be ready to meet conditions imposed by regulation or by the Registrar at issue, renewal or transfer (s 18(1)-(2)). Anticipate conditions on premises security, record-keeping, reporting, disposal, processing and instructions for inspection and surveillance (s 18(3)(a)-(e)). Regulations may require specific security measures for seed and crops (s 48(2)(i)).
Establish robust record-keeping systems to produce documents promptly on inspector request and to maintain traceability for crops and seed. Inspectors can require production of relevant documents, inspect and copy them and remove them for reasonable time to copy (s 39(1)(c)-(d)); be prepared with electronic and hard copy records and secure custody chains.
Implement a sampling and testing protocol aligned with the regulations, including chain-of-custody, packaging and labelling procedures for samples submitted for analysis, and relationships with approved analysts or botanists (s 39(1)(e)-(f), s 40, s 48(2)(e)-(g)). Because the defences in the Misuse of Drugs Act require proof that the material is industrial hemp, analytical records are key evidence.

Security and premises management

Ensure that authorised premises are properly described in the licence (s 14) and are non-residential when inspections are to be expected (inspectors may not enter premises used as a residence under s 39(1)(a)). Put in place physical security and surveillance required by licence conditions and regulations (s 18(3)(a), s 48(2)(i)).
Prepare protocols for harvesting, disposal and processing consistent with conditions (s 18(3)(d)) and ensure crop residues are processed or disposed in ways compliant with licence conditions and regulations.

Notifications and corporate changes

Notify the Registrar within 14 days of loss of a partner or relevant manager (s 22(2)). If adding partners or management, apply for licence amendment at least 28 days before the inclusion (s 23(3), s 24(3), s 25(3)). Do not include new partners/managers before approval to avoid offences and penalties (s 27).

Fees and cost management

Budget for application, renewal and transfer fees (s 5(2)(b), s 48(2)(a)). Anticipate and budget for inspection, surveillance and sample analysis fees that regulations may authorise and allow recovery of reasonable costs (s 48(2)(b)-(c), (3)). Retain receipts and records of payments as part of compliance documentation.

Interactions with police and appeal readiness

Be prepared for the Registrar to refer applications to the Commissioner and for police to inquire and report (s 6). If an application is refused, secure the Registrar’s written reasons (s 36(3)-(6)) and prepare any appeal to the Minister within 30 days (s 36(2)). Anticipate that parts of Commissioner reports may be withheld under FOI-exempt matter grounds (s 36(11)-(13)).

Documentation to support criminal defences

Given the defendant-borne nature of the statutory defences in the Misuse of Drugs Act (s 54 inserted s 8A), maintain rigorous analytical evidence, sample retention and chain-of-custody to support later proof that a substance is industrial hemp or industrial hemp seed. Ensure laboratory relationships with approved analysts or botanists are clear and that analytical procedures meet regulatory prescription (s 40, s 48(2)(e)-(g)).

Inspection interactions

When inspectors arrive, ensure the licence is available for production (s 35). Inspectors must produce identity cards and cannot exercise powers if unable to do so on request (s 38(4), s 39(2)). Train staff in interaction protocols for inspectors to avoid obstruction offences and to ensure lawful compliance.

Regulatory vigilance

Monitor regulations made under s 48 because many operational rules, prescribed qualifications, procedural details and fee schedules will be in subsidiary instruments. Compliance requires up-to-date reading of both the Act and applicable regulations.

Record retention and certified copies

Keep the licence available and consider obtaining a certified copy from the Registrar for evidentiary purposes (s 34). Remember that certified statements from the register can be obtained and used as evidence in proceedings (s 32).

In practice, compliance is a combination of: (a) meeting statutory eligibility and application requirements; (b) implementing physical security, record-keeping, sampling and analytical procedures aligned to regulatory requirements; (c) maintaining up-to-date documentation to support statutory defences; and (d) preparing for Inspector interactions and potential Ministerial appeal processes should licensing or renewal issues arise.

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