Wednesday, 1 May 2024

Bills

Hemp Industry Bill 2024

Statement of compatibility

Rachel PAYNE (South-Eastern Metropolitan) (10:03): I lay on the table a statement of compatibility for the Charter of Human and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this statement of compatibility with respect to the Hemp Industry Bill 2024.

In my opinion, the Hemp Industry Bill 2024, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill re-enacts, with amendments, the law relating to the cultivation and processing of industrial hemp for certain authorised purposes.

The purposes of the Bill are to create a standalone Act to deal with industrial hemp, and to amend the Drugs, Poisons and Controlled Substances Act 1981 to repeal ‘Part IVA – Authorities for low-THC cannabis’, which contains existing provisions relating to industrial hemp.

The Bill largely retains those existing provisions, dealing with authorities for industrial hemp, applications, conditions, renewals, suspensions and cancellations of authorities, protected information and VCAT review and inspection and enforcement. The Bill replaces authorities under Part IVA of the Drugs, Poisons and Controlled Substances Act 1981 with hemp licences.

The Bill increases the maximum hemp licence term from 3 to 5 years, clarifies fit and proper person requirements, ensures consistent time periods for criminal and police checks, removes inspection and licensing fees, introduces scientific hemp licences, and ensures inspectors prioritise harvest over destruction.

Human rights issues

I am satisfied that this Bill is compatible with the Charter. If any rights are limited, those limitations are reasonable and justified having regard to section 7(2) of the Charter.

The impact this Bill may have on Charter rights is as follows.

Privacy

Section 13(a) of the Charter provides that ‘a person has the right not to have that person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.

Section 36 of this Bill permits an inspector that is satisfied that exercising their power is proportionate to the risk that the Bill or the hemp licence is not being complied with – to enter and inspect any place, other than premises used as a residence, occupied by any person who is the holder of a hemp licence and inspect, count, examine or mark for identification any product, plant or crop in the place. This is to be done as the inspector thinks is necessary, at any reasonable time. The inspector may also require a person to produce any document they reasonably require for ascertaining whether the Bill or a hemp licence is being complied with and they may examine, copy, remove and take extracts from the document. The inspector may also take or remove for examination samples of or from, or specimens of, any plant of a crop or product for certain purposes and this sample or specimen may be submitted to a laboratory or approved place for examination and testing.

This Bill may engage the right to privacy to the extent a person’s personal information is captured in the course of the inspector’s duties. However, any interference is authorised by legislation that is appropriately circumscribed. An inspector is precluded from inspecting residential premises, they may only exercise their powers in a way that is proportionate to the risk of noncompliance and only to ensure compliance with the Bill. Further, they must only use their powers as they think necessary and at a reasonable time. These powers are necessary and reasonable to fulfil the legitimate aim of the inspector.

As such, to the extent this provision interferes with the right to privacy, I consider the provision is predictable and proportional to the legitimate aim of the Bill and therefore not arbitrary.

This Bill may also engage the right to privacy in respect of section 10. This section requires the Secretary to investigate an application for a hemp licence and requires the applicant or any associate to submit a national criminal history check. The Chief Commissioner of Police must inquire and report on matters they believe are appropriate or necessary or that the Secretary requests. In most circumstances, the Chief Commissioner of Police must notify the Secretary of their decision to oppose or not oppose the issuing of a hemp licence.

The requirement for the Secretary to investigate and approve a hemp licence may engage an applicant’s right to privacy as their personal information is likely to be collected and shared in the course of an investigation and in the provision of a national criminal history check. However, any interference with this right is for the purpose of assessing whether an applicant is a fit and proper person who should be granted a hemp licence. The application is voluntary, and an applicant has full awareness of the scrutiny to which their application will be subjected to.

As such, to the extent this provision interferes with the right to privacy, I consider the provision is predictable and proportional to the legitimate aim of the Bill and therefore not arbitrary.

Property rights

Section 20 of the Charter provides that ‘a person must not be deprived of that person’s property other than in accordance with law’.

Section 36 of the Bill provides general powers of the inspectors, including the power to take or remove samples or specimens of any plant of a crop or product to determine compliance with the Bill and hemp licence. Sections 37 and 38 of the Bill provide that an inspector may order harvest or treatment of any plant or crop, detain or seize the plant, crop or product and deal with it.

Exercise of these powers may interfere with a persons’ enjoyment of the plant, crop or product subject to inspection, harvest, treatment, detention and or seizure, thereby engaging the right to property. However, I am satisfied that no limitation of the right to property will occur.

Any deprivation of property is confined to the inspector’s ability to ensure compliance. Deprivation can only be done as an inspector thinks necessary and in the case of harvest, treatment, detention and or seizure, if they are satisfied on reasonable grounds that the plant or crop contravenes this Bill or a hemp licence. In the event of detention or seizure of plants, crops or products, an inspector must immediately give written notice of reasons and provide the plant, crop or product, or a sample for examination and testing. In the case that the plant, crop or product contravenes this Bill or the hemp licence, the inspector must inform the holder or person in possession of the results and order harvest, or if not practicable, disposal or destruction, which they must also provide notice for.

The deprivation of property in this Bill is in accordance with the law and is conferred in a precise manner. As such, I consider the provisions do not limit the right to property.

Fair hearing & freedom of expression

Section 24 of the Charter provides that ‘a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing’. Section 15 of the Charter provides that ‘every person has the right to freedom of expression which includes the freedom to seek, receive and impact information and ideas of all kinds’.

Division 5 of Part 2 of the Bill provides for protected information and VCAT review. Section 24 provides that if the Chief Commissioner of Police makes a decision wholly or partly based on protected information, they may decide to include or not to include this information in the reasons given to the Secretary, who then must note in their reasons for a decision if their decision is partially or wholly based on that protected information. Section 26 provides for the right of a person to apply to VCAT for review of a decision. VCAT must ask the Secretary if the decision under review was based on protected information and if the response is in the affirmative, a special counsel must be appointed to represent the interests of the applicant.

The Chief Commissioner of Police must be joined as a party at the first hearing where the decision subject to review was based on protected information, at the hearing VCAT must determine if this information is protected. This and subsequent hearings must be held in private (with the Chief Commissioner of Police and special counsel in attendance), and the Secretary can only attend if the protected information was included in the reasons given to them. Parties may make submissions as to whether information was protected and if VCAT determines it is, the weight it should be given. If the special counsel wishes to seek instructions from an applicant in relation to protected information, they must submit written questions to VCAT for approval, which must hear from the Chief Commissioner of Police on the content of the questions. Further, VCAT may only publish reasons to the extent that they do not relate to protected information.

The sections under this division engage the right to a fair hearing. A person affected by the protected information may be unable to challenge its contents, are unable to attend the hearing and cannot give their counsel instructions once a hearing has commenced. VCAT’s reasons for a decision cannot refer to protected information, and this may impact an applicant’s ability to mount an appeal. On this basis, the right to a fair hearing may be limited by these amendments and it is necessary to consider if this limitation is justifiable in accordance with the Charter.

The limitation is intended to ensure protected information is not released – this may reveal identities, methods, threaten safety, and put investigations at risk. The need to protect intelligence of this kind and law enforcement techniques is accepted as a legitimate objective justifying limits on fair hearing to ensure the proper discharge of police functions. These sections are important to ensure the Chief Commissioner of Police can share protected information or give notice of a decision being based on protected information. Importantly, VCAT retains the opportunity to assess whether the information is ‘protected’, parties can make submissions as to the weight to accord the protected information and the applicant is represented by a special counsel who represents their interests.

These limits on a fair hearing only apply to a person who has voluntarily sought to become a hemp licence holder and consequently accepted these limitations. I am satisfied there are no less restrictive means available to achieve the objective. The special counsel model in this Bill ensures the limitation on this right is mitigated as much as possible.

These sections also engage the right to freedom of expression as they limit the ability of people to attend the VCAT hearing, report on hearings and receive information. I consider this restriction to be lawful on a similar basis – noting that section 15(3) of this right specifically provides that it may be subject to lawful restrictions reasonably necessary on a variety of public protection grounds.

I consider both limitations to be lawful to protect the public interest in maintaining confidentiality of protected information, and therefore, compatible with the Charter.

Right not to be tried or punished more than once

Section 26 of the Charter provides that ‘a person must not be tried or punished more than once for an offence in respect of which that person has already been finally convicted or acquitted in accordance with law’.

Sections 5, 12, 21 and 23 of this Bill provide for where a hemp licence application may be denied or a hemp licence may be cancelled, suspended or not renewed. This may be construed as a secondary punishment where the basis of the decision relates to a finding of guilt for a serious offence within the prescribed period by the hemp licence holder or an associate, or where the basis of the decision relates to a finding of guilt for an offence per the ‘fit and proper person’ ‘suitability matters’.

However, the rejection, decision not to renew, cancel or suspend a hemp licence is not intended to be punitive. This is a protective measure to ensure hemp licence holders and their associates do not have a history of non-compliance with the law. The premise of this measure is that it ensures the hemp licence holder, and their associates are more likely to abide by their hemp licence conditions, and not misuse the privileges it affords them. This is only used when the Secretary is satisfied with certain matters or at the Chief Commissioner of Police’s request.

Therefore, this does not constitute ‘punishment’, and does not engage section 26 of the Charter.

Conclusion

I consider that the Bill is compatible with the Charter and where it affects or limits Charter rights, this is in a way that is reasonable and demonstrably justifiable.

Rachel Payne MP

Member for the South-Eastern Metropolitan Region

Legalise Cannabis Victoria

Second reading

Rachel PAYNE (South-Eastern Metropolitan) (10:04): I move:

That the bill be now read a second time.

Shall I compare hemp to a summer’s day?

Hemp art more lovely and more temperate.

Pests do not shake your darling buds away,

And you hath thousands of uses to date.

Sometime too heavy the weight of rule rest,

And often is fabric, food or fibre;

And every 90 days from seed harvest;

By chance, or climate’s changing course, sequester;

But thy eternal value shall not end,

Nor lose hold of that resilience thou sow,

Nor shall poor soil inhibit thou to mend,

When in Victorian lands thou will grow.

So long as people breathe, or eyes can see,

So long lives hemp, and this gives life to me.

Would you believe that at the same time Shakespeare was writing his sonnets, Queen Elizabeth I was requiring all landholders to set aside a quarter of an acre for the cultivation of hemp for every 60 acres of land tilled?

I guess she thought hemp was pretty good. Perhaps it is time we bring some of these old-world practices into the modern day.

I hope you will indulge me for a moment and allow me to share a story from our campaign for the inquiry into the industrial hemp industry in Victoria.

We had a group of Victorian industrial hemp growers attend Parliament to present to the media and other MPs. This included a display of an array of hemp products – clothing, carpet and prefabricated fire-resistant panelling.

One of them happened to bring a dried hemp stalk to demonstrate how the outer layer peels away, which is the fibre of the plant, exposing an inner layer that is soft and pulpy, which is the hurd of the plant. Both by-products have a multitude of applications.

This harmless initiative from a farmer showing the practicalities of a hemp stalk turned into a full-blown investigation into whether I had drugs on the Parliament precinct!

You see, throughout the course of the day, this stalk ended up in my office. Would you believe that within the hour we had a visit from the Usher of the Black Rod? Despite our consensus that this stick was not in fact a drug, they requested that I please remove the stalk from the building. Apparently, someone had notified their office of their ‘concerns’.

We never got an exact reason for why they were concerned, although to avoid discomfort, we did comply with their request.

So, when you ask me why we need an Industrial Hemp Act, I point you to the fact that we have parliamentarians afraid of what – in no uncertain terms – is a dried stick.

Victoria, unlike almost all other states, does not have a standalone industrial hemp act. We only have six hemp growers in the entire state. Worse still, much of what we produce is exported offshore for processing.

We are lagging behind other states and even further behind the rest of the world.

But attitudes are changing, and we are seeing a resurgence of hemp globally as its thousands of uses are rediscovered – the international market for industrial hemp is projected to grow to $18.6 billion by 2027!

The opportunities are endless, but hemp could have a role to play in revitalising national manufacturing, providing countless local jobs and building more environmentally friendly housing.

We are well acquainted with the potential of this crop, thanks in large part to the inquiry into the industrial hemp industry in Victoria.

This inquiry investigated the barriers and opportunities faced by Victoria’s industrial hemp industry and how this government could offer better support.

Unsurprisingly, this inquiry found numerous areas for improvement.

Recommendation 1 was to create fit-for-purpose industrial hemp legislation.

And that is exactly why today I introduce the Hemp Industry Bill 2024.

The purpose of this bill is to create a standalone act to deal with industrial hemp, amending the Drugs, Poisons and Controlled Substances Act 1981 to remove part IVA, ‘Authorities for low-THC cannabis’.

The bill makes minor clarifications and improvements but largely retains existing provisions dealing with authorities for industrial hemp; applications; conditions; renewals, suspensions and cancellations of authorities; protected information and VCAT review; and inspection and enforcement.

Turning to the changes in this bill, we have replaced authorities under part IVA of the Drugs, Poisons and Controlled Substances Act 1981 with hemp licences; we have updated language to signal the legitimacy of the crop and reduce stigma; we have increased the maximum authority term for a hemp licence from three to five years; we have clarified the fit and proper person requirement; we have improved consistency and clarity for the time periods for criminal and police checks; we have ensured inspectors use their powers only to the extent they are required to ensure compliance; we have encouraged harvest over destruction for crops that are taken into the inspector’s possession; we have extended the appeal window for a decision of disposal or destruction from 48 hours to three business days; and we have introduced scientific licences, inspired by Tasmania, to allow research into ‘hemp that is not industrial hemp’ to ultimately develop industrial hemp with qualities that benefit the industry – for instance, with greater yield.

Importantly, the repeal of part IVA, ‘Authorities for low-THC cannabis’, of the Drugs, Poisons and Controlled Substances Act 1981 will revoke any regulations made under it. Our intention is that any future regulations are not remade in the same form, so that inspection and licensing fees are reduced to zero.

Our bill is unable to address all the recommendations of the industrial hemp inquiry.

But we look forward to seeing the government respond to this inquiry before the six-month response period lapses at the end of May.

We can do better, and hemp can help – let’s sow the seeds for Victoria’s future.

I, on behalf of Legalise Cannabis Victoria, commend this bill to the house.

Lee TARLAMIS (South-Eastern Metropolitan) (10:12): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.