Industrial Hemp Bill 2015 No. 47 – in Committee

Read into Hansard on Wednesday 14th October 2015

INDUSTRIAL HEMP BILL 2015 (No. 47)

 In Committee

Clauses 1 to 6 agreed to.

Clause 7 agreed to.

Clause 8 – Suitability of applicant

Mr MULDER – This once again relates to the suitability of the applicant, which is the nub of my concerns.  Why should you have any criteria of suitability when you grow a legitimate crop?  My concern is if you are a fit and proper person and you have a history behind you, it is like saying any person who has ever been to jail cannot engage in legitimate business.  I have some deep concerns about that.  Here we have someone who wants to turn legitimate and you are saying to them, no, you cannot and only on the basis you have an illegitimate past.  We are talking about legalising the product here, not criminalising it.  I have those concerns about suitability.  I invite defeat once again but without going through the other process.

Mr VALENTINE – My query is, because this plant is on the poisons register, does that make this something mandatory in terms of how we licence the product?  Is that the reason we have a lot of this regulation in force?  Perhaps the Leader might be able to answer that question.

Dr GOODWIN – This is about any other fit and competent person test around licensing.  It is about determining whether someone is suitable to be engaged in this particular business given the risks of illicit cannabis cultivation and supply, trafficking, et cetera.  These are matters which could potentially be taken into consideration by the secretary after making inquiries.  The criminal history check is one part of that.  It may not be every conviction can be relevant.  If they have been convicted of a serious offence such as drug trafficking you would think that would be something the secretary would be looking very carefully at.

Mr VALENTINE – Madam Deputy Chair, my question is in respect to discrimination.  Is this clause in danger of people being discriminated against?  We are talking about a product which is no longer illegal, it is not a drug and yet here we are saying that people who have had a previous conviction cannot grow it.  I ask whether the discrimination side has been looked at, if you can give me that answer.

Dr GOODWIN – We have a whole range of ‘fit and proper person’ tests in a range of different contexts.  We have them for occupational licensing, registration to work with children and eventually vulnerable people, liquor licences, poppy growing –

Mr Dean – Joining the police –

Dr GOODWIN – Police, yes.  We have them in this context.  This is not unusual.  You talk about discrimination on the basis of criminal history.  That happens in a range of settings and for good reasons.  This is about managing risk at the application stage.  There are concerns around the growing of industrial hemp and potential for that to be exploited with the growing of illicit cannabis as well.  The licensing requirements in the act are based on other jurisdictions.  They have been developed with Tasmania Police and the Chief Pharmacist to ensure appropriate regulation.

The Committee divided –

AYES  7                                             NOES 7
Mrs Armitage                                  Mr Armstrong
Mr Farrell (Teller)                            Mr Dean
Mr Finch                                           Dr Goodwin
Mr Forrest                                        Mr Hall
Mr Gaffney                                       Mrs Hiscutt
Ms Rattray                                        Mr Mulder (Teller)
Mr Valentine                                    Mrs Taylor
Motion negatived.

Mrs ARMITAGE – I am going to try this.  Madam Deputy Chair, I move –

That clause 8 be postponed.
This is to make a different amendment to the member for Murchison’s.
For consistency, I would like subclauses (1) and (2) to say ‘the Secretary may refuse to’.

Dr Goodwin – You cannot have them granting a licence to someone who is not a fit and proper person.

Mrs ARMITAGE – Or (2).  Otherwise it becomes mandatory.  I do not believe in taking a whole clause out but I do not like the mandatory aspect, certainly in subclause (2).

Dr Goodwin – It is possible for someone else to postpone.

Mr VALENTINE – I am going to show my ignorance.  There is a definite difference.  The secretary ‘must not’ grant means they cannot do anything but refuse if these conditions are met.  ‘May not’ gives that opportunity for the secretary to think about all of the circumstances associated with this.  He may not – I agree that it may be captured in (3) but the word ‘must’ is still in there and there is every good reason to change it to ‘may’.

Clause 8 postponed.

Clause 9 – Criminal history of applicant

Dr GOODWIN – You have to read these in conjunction with the Annulled Convictions Act because there is a reference in the definition of criminal history to the Annulled Convictions Act.  There is a capacity under part 2 of the Annulled Convictions Act for minor convictions after a certain period of time to be annulled for good behaviour.  You do need to read those two together.

Mr VALENTINE – We are looking into the criminal history of the applicant in this section.  I had a little bit of a look at the Poisons Act part 5, Special provisions relating to narcotics, prohibited plants and prohibited substances.  Clause 53 of that act says, ‘Minister’s discretion to grant or refuse licences.  The grant or refusal of a licence under this part lies in the discretion of the Minister’.  That is all it says.

Dr GOODWIN – There is another section which talks about convictions similar to the wording of 8(3)(a) in section 17.

Mr Valentine – Section 17 of the Poisons Act?

Dr GOODWIN – Yes.

Mr GAFFNEY – I do not think this clause is about the applicant so much as a safeguard for the secretary.  I think it is saying if someone has done the wrong thing, as in clause 8, and the secretary is concerned, then he actually has to take into account the criminal history of the person, which to me makes sense.  So that is off the checklist.  If you want more information, you say to the person, ‘You’ve come from overseas.  We’ve got a nice person police history here but we do not have your history from overseas.  Before I can give you this licence I need to make sure there is nothing there’.  This is a hierarchical scale of offences and that the secretary at the end of this must take into account the criminal history.  It does not say that they cannot give them the licence, it says they must take it into account, which to me is common sense.

Clause 9 agreed to.

 Clauses 10 and 11 agreed to.

 Read into Hansard on Thursday 15th October

[11.44 a.m.]

Postponed clause 8 – Suitability of applicant

Mrs ARMITAGE – Mr Chairman, I move –

That clause 8(2) be amended after ‘Secretary’, by leaving out ‘must not’ and inserting instead ‘may refuse to’.

Mr VALENTINE – I thank the member for Launceston for digging up that information with regard to discrimination.  She would remember I raised yesterday that we could be in danger of breaching discrimination issues.

I looked further into the Poisons Act and that governs the opium poppies.  Under section 17 of the Poisons Act 1971 –

The Minister, in his discretion, may refuse –

(a)     to grant to a person applying therefor a licence under section 16; or

(b)     to renew a licence granted to a person under that section –

if that person has been, or is, convicted of an offence against this Act or of an enactment repealed by this Act of such a nature that in the opinion of the Minister (having regard to the nature of the offence and to all the circumstances of the case) it would be contrary to the public interest if that person were granted such a licence or, as the case may be, if such a licence granted to him were to continue in force.

Quite clearly there is a difference – there it is the minister while here we are talking about the secretary, but the same principle applies.  The fact is that it is ‘may refuse’ and for that reason the amendment that is being put forward by the member for Launceston, to my mind, takes away the mandatory nature of it.  That is important for all sorts of reasons.  It may have been 50 years ago that somebody transgressed.  It may have been yesterday.  In that case, there is that opportunity to be able to say, ‘Well, in this case, it cannot be issued.  In this other case, it can be.’  The discretion needs to be there to make sure that natural justice applies across the board.

I would be supportive of ‘may refuse to’ and not ‘must not’.  In subclause (1), in that part of clause 8 it says, ‘The Secretary must not grant a licence to an applicant unless satisfied that the applicant is a fit and proper person.’  There is discretion there, too.  That is fine, even though it says ‘must not’. There is discretion there.

Ms Rattray – Do you not acknowledge that there is discretion in (3) as well?

Mr VALENTINE – There is.

Ms Rattray – Why do you need two?

Mr VALENTINE – I am going to be listening to other contributions as to whether I support yours, or whether I support the member for Launceston’s.  The important thing is, ‘may refuse’ is very important in this case.  It reduces any discrimination that might able to be pointed.

The committee divided –

AYES  9                                             NOES 5
Mrs Armitage                                  Mr Armstrong
Mr Finch                                           Mr Dean
Mr Forrest (Teller)                          Mr Farrell (Teller)
Mr Gaffney                                      Mr Hall
Dr Goodwin                                     Mr Mulder
Mrs Hiscutt
Ms Rattray
Mrs Taylor
Mr Valentine

Amendment agreed to.

Clause 8 as amended agreed to.

Bill taken through the remainder of the Committee stage.

Read the full debate for 14th October here and 15th October here