Review of the
Tasmanian Poppy
Industry Regulation
July 2013
Report
John Ramsay & Associates
Page 2 of 79
Contents
TERMS AND ABBREVIATIONS .................................................................................................................. 6
EXECUTIVE SUMMARY ............................................................................................................................ 7
RECOMMENDATIONS ............................................................................................................................. 9
BACKGROUND & CONTEXT ................................................................................................................... 14
The Terms of Reference.............................................................................................................. 14
Observations on the Terms of Reference ................................................................................... 15
Issues Arising in the Review falling outside the Terms of Reference ......................................... 15
Consultation with Stakeholders and Submissions received ....................................................... 16
A BRIEF OVERVIEW OF THE TASMANIAN REGULATORY STRUCTURE ................................................... 17
The Details of the Regulatory system ......................................................................................... 17
The Regulators ............................................................................................................................ 18
The Minister for Health and Human Services ............................................................................. 18
The Minister’s Delegate .............................................................................................................. 18
The Poppy Advisory and Control Board ...................................................................................... 18
Advice on the Regulatory Structure and its Administration ....................................................... 18
Administration ............................................................................................................................ 19
Compliance with the Regulatory Regime ................................................................................... 19
WHY REGULATE THE TASMANIAN POPPY INDUSTRY? ......................................................................... 19
General ....................................................................................................................................... 19
Regulation of the use of Opium Poppies .................................................................................... 20
Specific Reasons for Tasmania to Regulate ................................................................................ 21
International Obligations – The Single Convention on Narcotic Drugs 1961 ............................. 21
National Obligations and the Narcotic Drugs Act 1967 .............................................................. 21
Access to the US market – 80/20 Rule ....................................................................................... 22
The Safety of the Tasmanian Community .................................................................................. 22
Weed Control.............................................................................................................................. 23
The Reputation of the Tasmanian Industry ................................................................................ 23
CURRENT REGULATION ......................................................................................................................... 23
Regulation of Growers ................................................................................................................ 23
Regulation of Processors ............................................................................................................ 24
Regulation for Security and Community Safety.......................................................................... 24
Regulation for Weed Control ...................................................................................................... 25
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CHANGES IN THE INDUSTRY AFFECTING THE REGULATORY STRUCTURE AND REGULATION .............. 26
Constant overarching regulatory requirements ......................................................................... 26
A competitive Tasmanian environment ..................................................................................... 26
REVIEW ISSUES...................................................................................................................................... 28
The Need for a Regulatory System ............................................................................................. 28
The Need to Licence Processors and Growers ........................................................................... 28
Licensing Processors ................................................................................................................... 28
Licensing of Growers .................................................................................................................. 29
Growers Licence Applications ..................................................................................................... 30
Community Safety ...................................................................................................................... 32
Warning Signs on Fences ............................................................................................................ 32
Weed Control.............................................................................................................................. 32
An Independent Regulator – Roles and Responsibilities ............................................................ 32
The Role of the Board ........................................................................................................................... 33
Involvement of the Board in Decision Making ........................................................................... 33
The Board’s General Advisory Functions .................................................................................... 34
Regulatory and Advisory Role Issues .......................................................................................... 34
The need for a Board .................................................................................................................. 35
Liaison with the Commonwealth to fulfil International Obligations .......................................... 37
Performance of the Board .......................................................................................................... 38
The Keach Matter ....................................................................................................................... 38
Accessibility and responsiveness of the Board ........................................................................... 38
Administration and Enforcement ............................................................................................... 39
Composition of the Board ..................................................................................................................... 40
Current Composition .................................................................................................................. 40
Possible Industry Representation ............................................................................................... 41
Chairperson of the Board - Independence ................................................................................. 41
Board Membership – Health, Primary Industry and Police ........................................................ 42
Commonwealth Nominee Membership ..................................................................................... 43
Board Membership – Secretary of the Department of Justice or Nominee............................... 43
INDUSTRY, INDUSTRY DEVELOPMENTS AND THE BOARD .................................................................... 44
Industry Development ................................................................................................................ 44
Industry Development Issues and the Board ................................................................................ 46
R & D Programs ..................................................................................................................................... 46
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Processor Research, Scientific Study or Innovation, Sample Products ......................................... 46
Poppy Straw Processing Waste Products...................................................................................... 46
Cultivation of the Poppy Plant Papaver Bracteatum .................................................................... 47
Industry and Board Engagement................................................................................................... 48
Annual Board/Industry Forum ...................................................................................................... 48
Board Technical or Advisory Committees ..................................................................................... 49
APPENDICES .......................................................................................................................................... 51
TERMS OF REFERENCE – REVIEW OF THE TASMANIAN POPPY INDUSTRY REGULATION ............. 51
WRITTEN SUBMISSIONS ................................................................................................................ 53
CONSULTATIONS ........................................................................................................................... 54
AN OVERVIEW OF THE REGULATORY REGIME .............................................................................. 56
GROWERS LICENCE - INFORMATION REQUIREMENTS ................................................................. 70
GROWING ADDITIONAL CROPS OR CROPS ON A DIFFERENT LOCATION - INFORMATION
REQUIREMENTS............................................................................................................................. 72
CROP LOCATION - SECURITY ASSESSMENT CRITERIA ................................................................... 73
GROWERS LICENCES – SPECIFIC REGULATORY CONTROLS ........................................................... 74
PROCESSORS LICENCES – SPECIFIC REGULATORY CONTROLS ...................................................... 76
CROP INTERFERENCE RECORDS .................................................................................................... 79
Page 5 of 79
TERMS AND ABBREVIATIONS
growers – Tasmanian farmers who are licensed to grow poppy crops
growers associations – PGT and TFGA
processors – the three companies who are licensed to process and manufacture products
from poppy straw - Tasmanian Alkaloids; GSK; TPI
the Act – the Poisons Act 1971 (Tasmania)
the Convention – the Single Convention on Narcotic Drugs 1961
Board - Poppy Advisory and Control Board
Government – the Tasmanian Government
GSK – Glaxo Smith Klime
Health Department - the Department of Health and Human Services (Tasmania)
INCB – International Narcotics Control Board
Inspectors – field officers appointed by the Department of Justice and authorised under the
Act to support the activities of the Board
Opium poppy plant – the plant papaver somniferum
Police – officers of Tasmania Police
PGT – Poppy Growers Tasmania Limited
Tasmanian Alkaloids – Tasmanian Alkaloids Pty Ltd
TFGA – Tasmanian Farmers and Graziers Association
T.P.I – TPI Enterprises Ltd
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EXECUTIVE SUMMARY
The activities conducted and regulated, the sum total of which combine to constitute the
Tasmanian poppy industry, are diverse in nature. While the activities are not dissimilar to
the growing, processing and sale of other crops, the poppy sector has a series of regulatory
controls that are unique and which apply at various stages of the agricultural, manufacturing
and sale cycle.
Regulation for security purposes, for the crop in the ground, the harvested raw material, its
processing, the product derived and its transportation and the people able to be involved in
the industry, is a paramount consideration. Details of the area of the crop sown and the
product processed and produced, is also a Tasmanian regulatory requirement.
Tasmania in effect has used co-operative government regulatory activity to achieve the
necessary regulatory control. The activities of three government agencies (the Departments
of Health, Primary Industry and Agriculture and Police) are co-ordinated through a (now)
statutory body, the Poppy Advisory and Control Board, which has a mix of broadly defined
advisory and regulatory powers, and supported by a fourth agency (the Justice
Department), which has no specific regulatory role save the staff that it employs, provide
resources and administrative support to the Board.
The regulatory controls over industry participants are vested in a Minister (the Minister for
Health), who delegates those powers to a senior government official in the Health
Department. The Board is responsible to a different Minister, the Attorney General.
Tasmania has unified the cultivation, harvesting and processing parts of the industry by
making a crop purchase contract with a processor, a prerequisite to a grower obtaining a
licence to cultivate a poppy crop. In this way there is effective integration of the different
licence obligations of growers and processors, thus achieving a regulatory requirement to
identify areas on which crops are grown and to establish the volume of crop harvested and
processed and the resultant product.
The above is hardly a textbook regulatory model, but over some 40 years of evolution and
operation, it has worked, enabling the Tasmanian industry to enjoy a dominant position in
an internationally regulated market.
It light of the above success, one might question why changes need to be considered.
However there are a number of factors in play in the current industry that warrant a
consideration of changes to the regulation of the industry now and for the future.
The following report recommends some clarification of and changes to the regulatory
structures and controls that currently operate in relation to the Tasmanian poppy sector.
However it is fair to describe the recommended changes as adjustments to aspects of the
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current system, rather than a significant structural reform. While this view has been formed
as a result of a consideration of all the information presented to the review and other
available information, it is fair to say that this approach is consistent with almost all of the
views that were provided in the review process.
The most significant change is to establish a clearer separation between the industry
development and regulatory functions in the system and the role that the Board performs in
these matters. Essentially, the Board should become the actual as opposed to defacto
regulator of the system and cease being a general advisory body on all aspects of the
industry.
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RECOMMENDATIONS
Recommendation 1:

That there continues to be a system of registering the names of the growers of poppy
crops and of the location of the properties on which poppies are grown.
Recommendation 2:



That there be a simplification and streamlining of the current long standing annual
licensing process for growers. For example:
o Growers who have held a licence for more than three consecutive seasons,
and who have not been the subject of serious compliance requirements by the
Board should be placed on a standing register of growers
o Any new grower, or a grower who has ceased growing for two or more
consecutive seasons, should be required to submit a detailed application to
secure registration.
To maintain registration a grower must provide to the Board annually the following
information:
o
Any changes to the ownership of the property, its management, and
the persons who control or manage or who have access to the poppy
crop
o
The details of the contract with the processor to grow poppies
o
The indicative area and location of the area to be grown
o
A site suitability self-assessment on proximity to sensitive areas and
roads, meeting the fencing requirements and the placement of
warning signs as required.
To enable a grower to undertake a site suitability assessment the Board should
publish site suitability guidelines which should include the following:
o
sensitive areas in which crops are not be located
o
classification of roads and streets where warning signs are to be
located on fences
o
the fencing standards required for classified roads and streets
o
the criteria to be applied in making an assessment of where to fix
warning signs to fences or gates.
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
The licence obligations of both growers and processors should be changed to place
the responsibility for advising the Board, on actual areas sown to crop, on the
processors with whom a grower has a contract and to remove that responsibility
from the growers.
Recommendation 3:

That growers assume the responsibility for affixing and removing the poppy crop
warning signs on fences and gates in accordance with criteria established by the
Board.
Recommendation 4:
That the Act be amended



to remove the Board’s general advisory functions in relation to any matter relating to
the alkaloid poppy industry
to enable the Board at any time, to advise the Attorney General and the Minister, on
the need for any changes to the regulatory structure or powers necessary to regulate
the industry or the making of specific regulations
to enable the Minister to delegate to the Board the responsibility to determine and
issue all poppy industry licences under the Act other than licence applications for new
processors to enter the industry or licences for the importation of quantities of poppy
straw or other narcotic product for commercial processing.
Recommendation 5:

That the Board’s functions should continue to include liaison with the Commonwealth
on fulfilling Australia’s international obligations.
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Recommendation 6:




That the Board review and re-establish effective and responsive administrative
practices and procedures
That the Board undertakes a review of its current practices and procedures with a
view to publishing appropriate guidelines or codes of practice to inform and assist the
industry participants and the general public on how the industry is regulated.
That the Department of Justice, in consultation with the Board, undertake a review of
the Board’s business processes and administrative procedures, in particular the
activities of the Board Inspectors, with a review to ensuring that the activities
undertaken are as cost effective as possible.
That the Board review and make recommendations to the Attorney General on any
additional enforcement powers that should be available to the Inspectors to facilitate
efficient enforcement of the requirements of licences and any other relevant
provisions of the Act.
Recommendation 7:

That the Board continue to be comprised of membership with no association with the
industry.
Recommendation 8:

That the Act be amended to specify that the Chairperson of the Board is to be an
independent Chairperson.
Recommendation 9:

That the representation from the areas of health, primary industry and police be
maintained on Board membership and that the appointees have practical and
operational expertise in their discipline area.
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Recommendation 10:
That the Act be amended to:


remove the requirement for Commonwealth membership of the Board
provide for formal observer status on the Board for the nominee of the Secretary of
the Commonwealth Department for the grant of licences under the Commonwealth
Narcotic Drugs Act , and for that person to be given access to all Board papers,
minutes etc.
Recommendation 11:

That the Act be amended to provide for the Secretary of the Department of Justice or
nominee to be appointed to membership of the Board.
Recommendation 12:


That the Act be amended to require the Minister to obtain the advice of the Minister
for Primary Industry and the Attorney General, prior to making any decision in
relation to the granting of a licence for new processors to enter the industry or
licences for the importation of quantities of poppy straw or other narcotic product for
commercial processing.
That the Act be amended to require the Attorney General to seek the prior advice of
the Board on any domestic, Australian or international regulatory issues associated
with any processor or import application.
Recommendation 13:

That processors should submit an annual research and development plan to the
Board which indicates any regulatory approval that may be required into the future.
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Recommendation 14:

That collaboration between the industry processors and supporting government
agencies should take place to ascertain whether the regulatory requirements of the
Act can be met to establish beneficial uses, commercial or otherwise, for industry
waste products.
Recommendation 15:

That the Board seeks to resolve the future status of the commercial development of
papaver bracteatum in Tasmania.
Recommendation 16:


That the Board convene an annual industry Board forum to review developments in
the industry on an international, national and local level that impact on the
regulation of the Tasmanian industry
That the Board, as appropriate, convene special technical or advisory groups or
committees to consider and provide recommendations to the Board relevant to the
regulation of the industry.
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BACKGROUND & CONTEXT
The Terms of Reference
The Tasmanian Attorney General is the Minister responsible for the Poisons Act 1971 (the
Act) in so far as it relates to the Poppy Advisory and Control Board (the Board). In that
capacity the Attorney General commissioned a review of the regulation and oversight of the
poppy industry in Tasmania.
Advice was sought on

options for a contemporary regulatory framework that supports and protects the
Tasmanian Poppy Industry, provides appropriate safeguards for the community, and
meets national and international obligations for the safe and secure growing of
poppies.
Further, advice was sought on

the role and functions required into the future for regulation and oversight of the
poppy industry in Tasmania, taking account of the views of the relevant
stakeholders.
This includes –







the need for independent oversight and regulation
the international regulatory framework
State and Federal legal requirements
security issues
supporting and growing the Tasmanian industry
keeping the regulatory and cost burden on industry to a minimum and avoiding
unnecessary duplication
current industry and farming practices
Recommendations were sought as to:
1.
2.
The optimal structure for the regulation of the industry
A suitable mechanism for future industry engagement with the regulatory body,
while maintaining strict independence of the regulator’s functions and decisions.
The full terms of reference for the review are at Appendix 1, where the list of the relevant
stakeholders is also set out.
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Observations on the Terms of Reference
There are several observations about the Terms of Reference.
First, while ‘regulation’ generally means a rule or order for conduct prescribed by authority,
‘oversight’ has a wider meaning, being supervision or watchful care. Thus the Terms of
Reference for the review are interpreted to include not simply the strict legal regulatory
structure for the Poppy Industry, but also to embrace a wider supervisory approach.
Second, the Terms of Reference include references to supporting, protecting and growing
the Tasmanian Poppy Industry. This is understood in terms of a regulatory and supervisory
framework to be a framework that ensures the ongoing commercial and agricultural viability
of the industry and its access to markets.
Third, the clear indication from the Terms of Reference is that there is a requirement that
the regulator and the regulatory structure be independent from the industry. The Terms of
Reference lead to this conclusion by phrases such as, “the need for independent oversight
and regulation” and “maintaining strict independence of the regulators functions and
decisions.” The review has been conducted in the context of these observations.
Issues Arising in the Review falling outside the Terms of Reference
There were two issues at the forefront of the minds of many participants in the sector
during the review process. These views emerged in both written submissions and in
consultations, and tended to dominate consideration of other regulatory aspects of the
review. While both issues are effectively outside the scope of the review in terms of
recommendations, their relevance to the review is outlined below.
Industry payment for the activities of the Board
The first issue was the decision of the Tasmanian Government to require the industry to pay
a levy to meet the cost of the operation and activities of the Board. There was uncertainty
as to the actual cost of the operations of the Board, which it was assumed would be the cost
sought to be recovered from the levy. But there was also uncertainty as to whether the
payment requirement extended to the cost of the activities of Tasmania Police in relation to
their role in regulation of the industry.
The views expressed on this issue essentially centred on what was perceived to be a failure
on the part of Government to continue to invest in a regulatory system necessary and
appropriate for the industry. It was considered that the industry was not only vital to the
prosperity of the Tasmanian rural sector, but important to the economic interests of the
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State, as the benefits from the industry were shared by the wider Tasmanian community
(contractors, agribusinesses and suppliers etc.), not just the growers and processors.
However, for some, the likely implementation of the levy decision did result in thought
being given to the activities conducted by the Board and its staff. If the industry was going
to be required to pay for the Board and its activities, the industry did not wish to pay for
unnecessary activities that were part of any regulatory structure.
The importation of commercial quantities of poppy straw
The second issue that was a concern, and invariably a key topic of conversation, was the
decision understood to be made by the Tasmanian Government, to allow one of the
processors to import poppy straw from Turkey. This decision was regarded by some as a
threat to the primacy of Tasmanian growers as a source of supply to the Australian
processors. Not only, it was said, did it undermine the international integrity of the
Tasmanian industry, and have bio-security implications, the decision (it was alleged) was
based on misinformed views about the availability of land in Tasmania to increase the size of
the Tasmanian crop and thus meet processor demand. An alternative view was that the
importation of poppy straw is already undertaken by other countries to ensure continuity of
supply, that any bio-security issues could be addressed by the appropriate regulatory
authorities (not the Board) and that the suggested availability of land in Tasmania was not
sufficient to meet future world demand for product.
The respective views and the merits of this matter have and are being canvassed in detail
before a Tasmanian Parliamentary Inquiry, which is yet to report, but the issue was relevant
to this review from two perspectives. First, it produced the strongly held view from growers,
that if the Board was to expend any resources on addressing matters of importation of
poppy straw in the future, then the cost of that activity should not be borne by the growers.
Second, as the advice of the Board on this matter had not been accepted by the
Government, it raised the question of the effectiveness and relevance of the role of the
Board in such matters, and also the role and authority of Government Ministers in
addressing issues about the viability and growth of the Tasmanian processor sector and the
interests of the Tasmanian growers.
Consultation with Stakeholders and Submissions received
Requests for submissions were advertised in the Tasmanian daily papers on Saturday 16
February 2013 and a written request for submissions was provided to key stakeholders. The
growers associations also advised their members of the request for submissions via their
association newsletters and Growers Meetings. Growers meetings were held in five
locations around the State.
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Details of the persons and organisations making written submissions are at Appendix 2.
Details of the persons with whom consultations were undertaken are at Appendix 3.
A BRIEF OVERVIEW OF THE TASMANIAN REGULATORY
STRUCTURE
The Details of the Regulatory system
It is not possible to easily ascertain the details of the regulatory regime that applies to the
Tasmanian poppy industry.
The black letter law of Tasmania’s regulation of the poppy industry is limited. There are
several poppy specific provisions in the Poisons Act 1971, and there are provisions in that
Act which establish the Board. Power exists to make regulations for certain purposes
associated with the industry pursuant to s.59 of the Act. However there are no available
regulations, guidelines or codes of practice such as one might find in other regulatory
systems.
Generally speaking, the Act contains provisions authorising the growing, possession, and
processing of the opium poppy plant and manufacturing of narcotic substances.
Determining production estimates for the contract growing and harvesting of alkaloid poppy
material is the overarching regulatory control.
Licensing of industry participants, the growers and processors, to operate within that
estimate is the key regulatory mechanism. The detail of the actual regulation and
compliance requirements is to be found in the terms of the licences issued.
There is however an external regulatory framework within which the Tasmanian regulatory
system operates. That framework starts with the 1961 Single Convention on Narcotic Drugs
as implemented in Australian through the Commonwealth Narcotic Drugs Act 1967. A more
detailed overview of the relevant provisions in the legal framework that applies to the
industry is at Appendix 4.
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The Regulators
The Minister for Health and Human Services
The formal regulatory power conferred by the Act to authorise participation in the industry,
is vested in the Minister for Health and Human Services.
The Minister’s Delegate
In practice the regulatory functions are delegated by the Minister to an appropriate senior
officer in the Department of Health Human Services, the Chief Pharmacist. The Chief
Pharmacist has expertise in the administration of the Act and the substances regulated.
The Poppy Advisory and Control Board
The Poppy Advisory and Control Board is established by the Act. It is a five member Board.
The Board has a mix of regulatory and advisory functions. It is responsible for the discharge
of its functions to the Attorney-General, not the Minister for Health and Human Services.
While primarily the Board’s functions are advisory in relation to the poppy industry, it does
have some functions which are regulatory in effect. These functions are –



determination of production estimates for the growing and harvesting of alkaloid
poppy material
ensuring the security of the alkaloid poppy crops
destruction of any alkaloid poppies grown without approval under the Act.
Advice on the Regulatory Structure and its Administration
The Board is the principal source of advice to the Ministers on the ongoing administration of
the regulatory structure.
The general and advisory functions of the Board are to –





act in any matter related to the industry as may be directed by the Secretary
liaise with the Commonwealth in order to fulfil Australia’s obligations under the
Single Convention on Narcotic Drugs
collect and collate statistical information on the industry and prepare reports on the
industry
advise the Attorney General and the Minister for Health on any matter related to
the industry
do anything, and provide such other advice to other Ministers, as may be requested
by those Ministers.
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Administration
The Minister’s Delegate, the Chief Pharmacist assumes the administrative responsibilities of
that role in combination with other duties in the Health Department.
The Board is supported in its role by staff who are appointed to the Department of Justice.
s.59M of the Act formalises these arrangements. There are currently eight Board staff
positions on the Department’s establishment.
Compliance with the Regulatory Regime
Compliance with the current regulatory regime is achieved through the staff of the
Departments of Health, Justice and Police.
The majority of the Board staff are appointed as authorised officers under the Act.
Essentially the staff are involved in the process of licensing growers and maintaining the
security of the poppy crop on farms. The staff are supported by officers of Tasmania Police
in the security activities as required.
Staff in the Department of Health and Human Services, also hold appointments under the
Act and are principally involved with the licensing of processors, the products they
manufacture, the wastes generated, and monitoring and reporting processor activities.
WHY REGULATE THE TASMANIAN POPPY INDUSTRY?
General
In undertaking any regulatory review, the fundamental question to be asked is - why is the
particular activity regulated? Why have governments decided to intervene and impose
legislative and/or administrative controls?
If there is good reason to regulate, what must be examined is how that regulation is to be
undertaken, where will the burden of regulatory compliance fall, and is it reasonable?
Best practice regulatory principles were adopted in Australian by the Council of Australian
Governments October 2007. The principles are –
1.
establishing a case for action before addressing the problem
2.
a range of feasible policy options must be considered, including self-regulatory, coregulatory and non-regulatory approaches, and their benefits and costs assessed
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3.
adopting the option that generates the greatest net benefit to the community
4.
in accordance with the Competition Principles Agreement, legislation should not
restrict competition unless it can be demonstrated that
a.
the benefits of the restrictions to the community as a whole outweigh the
costs
b.
the objectives of the regulation can only be achieved by restricting
competition
5.
providing effective guidance to relevant regulators and regulated parties in order to
ensure that the policy intent and expected compliance requirements of the
regulation are clear
ensuring that the regulation remains relevant over time
consulting effectively with affected key stakeholders at all stages of the regulatory
cycle; and
government action should be effective and proportional to the issue being
addressed.
6.
7.
8.
These principles are worth bearing in mind when considering the establishment of a
regulatory system or when there are proposals for change. However the essential
regulatory framework for the Tasmanian opium poppy industry is already established as a
result of adoption by the Australian Government of the obligations in the Single Convention
on Narcotic Drugs. The matters outlined below in effect address the first four principles.
Regulation of the use of Opium Poppies
History indicates that the opium poppy plant can be utilised to alleviate human suffering or
generate human suffering.
The benefits from the usage of the products derived from opium poppies in the provision of
human health care are immense (the licit sector). The misery caused for humans by
addiction to the products derived from the plants is also immense (the illicit sector). The
illicit sector is also characterised by criminal behaviours which produce negative impacts
and additional costs on societies.
Humans invariably organise around activities of mutual beneficial interest, and in the case of
utilisation of the opium poppy, there are organisations that have established around the
respective licit and illicit usage. In both cases, the financial reward for suppliers of product is
usually positive.
It is for the above reasons that the international community has intervened in the use of
products derived from the opium poppy plant to regulate those activities, seeking to
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remove the illicit market and manage the licit market. The Single Convention on Narcotic
Drugs establishes this regulatory regime and all the State parties to the Convention have
obligations to establish national regulatory regimes to give effect to their international
obligations.
There can be no rational argument against market intervention to regulate the growing of,
and use of products derived from, the opium poppy.
Some 40 years ago, the Tasmanian Government chose to permit the introduction of the
opium poppy plant into Tasmania and to permit the cultivation and processing of the plant
for the beneficial use of the products derived. An obligation which continues to accompany
this decision, is to maintain and support a regulatory regime that complies with
international requirements, but also protects the Tasmanian community and the Tasmanian
environment.
Specific Reasons for Tasmania to Regulate
International Obligations – The Single Convention on Narcotic Drugs 1961
The Convention requires all countries that are party to it, to control the growing of opium
plants and the processing of narcotic drugs. In the case of the present Tasmanian industry
there are two key Convention provisions. The first is Article 25 which relates to the
cultivation of the opium poppy to generate poppy straw and the need to ensure that the
manufacture of drugs from the poppy straw is adequately controlled. The second is Article
29 which relates to the licensing of manufacturers of drugs and control of their premises
and ensuring approvals are in place for the kinds and amounts of drugs to be manufactured.
The International Narcotics Control Board is established by the Convention and the INCB
exercises regulatory and managerial powers in relation to the cultivation and supply of
narcotic products.
National Obligations and the Narcotic Drugs Act 1967
The Commonwealth has implemented Australia’s international obligations through
provisions in the Narcotic Drugs Act 1967. The Act contains a range of provisions including
the licensing of manufacturers of drugs and the handling of narcotic substances.
A 1971 agreement between interested Australian states and territories and the
Commonwealth determined that Tasmania would be the only location in Australia in which
opium poppies would be grown. That agreement has placed Tasmania into what is in effect
a co-operative regulatory partnership with the Commonwealth in relation to the industry.
This partnership has seen Commonwealth participation in the affairs of the Board, and has
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also enabled Tasmania to participate on the Australian Government delegations that attend
the annual INCB meetings and thus participate in international deliberations.
Access to the US market – 80/20 Rule
The USA market is one of the prime world markets for the supply of licit narcotic products.
Access to that market is controlled by US regulatory authorities by means of trade
agreements and legislation. One of those rules in respect to the poppy industry is that the
US must source 80% of its raw narcotic material from Turkey and India, with an alternate
20% to be sourced from elsewhere. This is known as the 80/20 Rule.
In the early stages of development of the industry in Australia sought access to this lucrative
market to supply product sourced from Tasmanian morphine poppies. The structure of the
regulatory system established in Tasmania was influenced by what would be regarded
favourably in securing that US Drug Enforcement Agency approval.
By the Attorney General assuming the responsibility for the principal advisory and control
body, the Board (albeit non statutory at that time), and providing the administrative support
for the Board through the Attorney Generals Department (as it was then called) this
presented a clear and independent regulatory structure for the industry, linked to law
enforcement.
It is for this reason that the formal administration of that part of the Act that relates to the
Board, is vested in the Attorney General.
While the Board continues to monitor developments in the United States and in recent
times the Chair of the Board has participated in relevant US administrative hearings on
80/20 Rule matters, our diversity of product not solely growing morphine based poppies
now means that the 80/20 rule is no longer so critically relevant to the success of the
Tasmanian industry in the US market.
The Safety of the Tasmanian Community
There are two simply stated, but important community safety considerations that
necessitate regulation.
The first relates to accessibility to a dangerous crop from which narcotic substances may be
derived for personal drug use or experimentation. Amateur attempts at the processing of
the plants can result in toxic substances being produced and consumed. There have been a
number of deaths over the years as a result of this activity, the most recent being last
November with the tragic death of a teenage boy in Southern Tasmania.
The second relates to the accessibility of a crop from which, subject to a level of processing,
narcotic substances may be derived for criminal purposes.
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Weed Control
The opium poppy plant is an introduced plant. While it is a successful commercial crop when
managed in accordance with best agricultural practice, it is a plant of some resilience and a
weed in the Tasmanian environment that requires control.
The Reputation of the Tasmanian Industry
The current Tasmanian regulatory structure, its institutions and office holders, its
administration, its regulatory practice and compliance, and the qualities of industry
participants have combined to establish a reputation for excellence.
Anecdotal evidence of views expressed from time to time at the INCB level indicate that the
Tasmanian sector is well deserved in achieving that reputation and that the ‘Tasmanian
system’ provides a benchmark for other countries to meet in their regulation of the
industry.
The extent to which this might be a positive factor in INCB decision making is difficult to
assess. Similarly the extent to which it influences other Convention signatory parties on
market access for Tasmanian product, or commercial decisions involving Tasmanian
processors and product, is difficult to establish. However any beneficial reputation achieved
through recognised best practice should not be put at risk and is in itself a reason to
maintain a robust regulatory structure that is the foundation of the reputation.
CURRENT REGULATION
As mentioned previously regulatory controls on industry participants are effectively
achieved through the issue of licences with detailed conditions.
Regulation of Growers
Licences to grow poppies are issued under s.52 of the Act.
To secure a licence, a grower must lodge an application in which an essential requirement is
the existence of an agreement with a processor to grow a crop in an identified area or
paddock on a farm. Growers are required to submit detailed personal information, to be
subject to a criminal history check, to provide information about their property ownership
and persons living and working on the property. The details required in an application are at
Appendix 5.
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Any change in the area to be sown to crop or its location requires the provision of further
information. Details of the additional information required are at Appendix 6.
In practice the field officers engaged by the processors, participate with the growers in the
lodgement of the growers applications. Given the requirement for an agreement to exist
between a processor and a grower as a prerequisite to securing a licence, this close
association is understandable.
Growers, and the location of the paddocks in which poppies are to be grown are the subject
of a security assessment undertaken by a Board Inspector. Details of the matters considered
in a security assessment are at Appendix 7.
The processing of licence applications is undertaken by the Board staff and Inspectors.
Licences are issued by the Minister’s delegate, the Chief Pharmacist.
The licence obligations include reporting on crop details, security and weed control. Details
of the licence obligations are at Appendix 8.
Regulation of Processors
Licences to process poppy straw to extract the alkaloid content and to manufacture
products are issued under s.16 of the Act, the section that provides for the licencing of
manufacturing and wholesale chemists. There are no special provisions in the Act for the
regulation of processors, rather the general scheme of the Act which deals with the control
and manufacture of substances by chemists applies.
Processors are subject to a range of licence obligations which include comprehensive
security requirements for all aspects of the business, the physical premises, visitors who
access the premises, the transport of materials, security checks for staff and contractors and
the detailed recording and reporting to the Board of all materials harvested and processed,
the products made and the waste product, and the retention of those records. Details of the
licence obligations are at Appendix 9.
Regulation for Security and Community Safety
Participation in the industry of persons with criminal convictions, particularly in the area of
drugs, is sought to be regulated by requiring growers, manufacturers and their employees
and contractors to be subject to a criminal record check.
Access to crops is managed by limiting access to only those persons authorised by licensed
growers and processors.
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While community prevention of access to crops in the essentially rural locations is difficult,
this is addressed by regulatory controls applied to the assessment of the location and
security of paddocks on which poppies are to be grown and a requirement standard for
fencing.
Field security assessment is undertaken by Board Inspectors and security of fencing is
maintained by the growers. In addition, voluntary surveillance is undertaken by growers and
processor field officers while formal surveillance is carried out by the Inspectors and as
required, by the Police.
Theft or removal of poppies is monitored and reported by growers, processors and the
Inspectors, and investigated by the Police and prosecuted as appropriate. Records are kept
of crop interference. Details are at Appendix 10.
An additional measure to prevent access to any residual material is the requirement for
growers to destroy the remains of the poppy crop within 7 days of harvest. This
requirement is contained in the growers licence and is monitored and enforced by
Inspectors.
Although not a licence requirement, a further security and community safety measure is the
placing of warning signs on fences where there is community visibility of the poppy crop.
The signs advise that the paddock in which the crop is grown is a prohibited area, warn of
the danger, that illegal use of the crop may cause death and display a prominent “keep out”
message. They are affixed and removed at the appropriate times of the growing and
harvesting season by the Inspectors.
Regulation for Weed Control
It is a requirement of the grower’s licence to eradicate any rogue poppy plants that have
grown from the seed residue of the previous season. Failure to do so can affect the
successful cultivation of other rotational crops and the poppy plants can be toxic to grazing
stock.
The process of crop harvesting or the transportation of inadequately covered loads of
harvested material from paddocks to processors can cause seed loss and result in poppy
plants growing on roadside verges. The industry attempts to prevent this through the
cleaning of harvesting equipment and the covering of loads.
Notwithstanding these measures, roadside poppy weed outbreaks have occurred in the
past. These outbreaks are subject to the monitoring activities of the Inspectors, and have
generated disputes as to responsibility for roadside areas and eradication. Inspectors must
sometimes undertake roadside clean-up activities.
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CHANGES IN THE INDUSTRY AFFECTING THE
REGULATORY STRUCTURE AND REGULATION
Constant overarching regulatory requirements
The international regulatory environment has essentially changed little over the life of the
industry in Tasmania. The institutions are the same, and the underlying international market
management principles are essentially the same, although the production and supply
circumstances necessitate differing decisions from time to time.
Similarly the national regulatory environment has not changed. The 1971 inter-jurisdictional
agreement that indicates that Tasmania will be the only State or territory in which poppies
are grown, has endured until this time. The Commonwealth in effect, has continued to be
satisfied with the regulatory and administrative arrangements that have existed in
Tasmania, which complement their regulatory arrangements, and which in turn enable the
Commonwealth to meet their international obligations.
Finally the reason for regulation in Tasmania has not changed - the need to comply with
international obligations, to comply with US market entry requirements, to promote and
secure safety for the Tasmanian community, and to control weeds, all continue to be
compelling.
A competitive Tasmanian environment
Within the confines of the international regulatory arrangements there is however an
international competitive market for the supply and sale of product. It is understood that
international developments concerning demand for raw materials and the consolidation and
ownership of the pharmaceutical industry has resulted in increasing global competition in
the market.
For most of the time the industry has existed in Tasmania there has been a processor
duopoly. Two multi-national owned companies have interacted effectively with the
Minister, the Minister’s Delegate, the Board and the Tasmanian grower community.
The success of the Tasmanian industry is in no small way due to the expertise and efficiency
of these two processors who both occupy a significant position in the international market.
They have maintained continued research and development programs. Innovation has
resulted in the development of different varieties of poppies and improvements to alkaloid
extraction methods, both to significant product recovery advantage. These achievements
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can also be attributed to the skills, husbandry and efficiency of the Tasmanian growers and
the general oversight of the Board.
However, this success has encouraged competition within the industry with the entry into
the processing sector of a third player. With three Tasmanian processors now competing in
the international market, that competition and their relative success in that market has the
ability to impact on their local activities in Tasmania.
In real terms, this means the companies are competing within the Tasmanian domestic
market for access to the raw material, the poppy straw. As well as competing in relation to
price for product, the processors compete for grower contractual commitments through the
services and advice they offer to growers, and also in relation to general commercial and
business practice relationships.
Their respective successes in this regard obviously have consequences for the manner in
which they conduct their business and other industry opportunities that they might or need
to seek.
Processor desire to import and process poppy straw from overseas to supplement
Tasmanian domestic supply has arisen. While importation of poppy straw is supported by all
three processors the reasons have a different foundation. One reason is to meet a
suggested shortfall in Tasmanian supply. The other reason is to guarantee security of supply
to customers, seen to be at potential risk, because of total reliance on Tasmania’s ability to
supply the raw material for product.
A related matter, and a matter of some dispute, is the availability of land in Tasmania to
provide sufficient areas to cultivate and produce poppy straw to meet a suggested increase
in world demand. The possibility of commercial cultivation of poppies outside Tasmania has
thus become an issue. Victoria has that possibility under active consideration. If this were to
eventuate, the monopoly grower/processor position that Tasmania has enjoyed in Australia
since 1971 would change. Tasmanian based processors may seek to expand their
manufacturing capacity with the addition of raw materials sourced from outside Tasmania.
The changed commercial environment has also resulted in challenges to the regulatory
limits of the system, testing its responsiveness and the rationale for some of the regulatory
controls.
Factors of economic and political influence are also evident.
There has also been pursuit of different areas of industry innovation and experimentation,
including the variety of poppy plants sought to be grown.
Finally the decision of the Government to impose a levy on the industry to meet the cost of
industry regulation, in effect by meeting the cost of the regulatory and oversight activities of
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the Board, has been received negatively and has had a unifying effect particularly on the
grower community in opposition to the decision.
In summary the key factors that have changed in the industry include –






a third processor licensed to operate
increased competition among processors to contract growers to ensure supply of
raw material
crop and product research and experimentation
the processor sector’s desirability to import raw material
the possibility of the loss of the Tasmanian grower monopoly
the potential government imposition on industry bearing the cost of the regulatory
controls under which it operates.
REVIEW ISSUES
The Need for a Regulatory System
The Terms of Reference do not call into question the need for a regulatory system. The
evidence supporting the need for regulation is overwhelming and was not questioned in the
review. What is at issue is the nature of that regulatory system and how it operates.
Essentially the current Tasmanian arrangements meet or appropriately embrace Principles
1-4 of the COAG best practice regulatory principles. The following issues and comments
essentially embrace the rationale of COAG Principles 5-8.
The Need to Licence Processors and Growers
Licensing Processors
There is no doubt that there is a need for the continued licensing of processors. The
processor role in the identification and reporting of the area of crop sown and harvested,
and the volumes processed and product recovered is absolutely critical to Australia’s ability
to report on activity to the INCB and to meet its Convention obligations.
Similarly the level of personnel security assessment and physical security activities and
controls are essential to ensure that narcotic product is not diverted to the illicit market or
used for illegal purposes.
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It is in the area of processor operations that there is duplication in the system, with the
processors having to make manufacturing licence applications to both the Commonwealth
and the State to meet the requirements of both the Narcotic Drugs Act and the Poisons Act.
The processors also have dual reporting requirements to the Commonwealth and the State.
It appears that the dual processes are an inconvenience rather than a significant regulatory
burden for the processors. The information sought by both the Commonwealth and the
State are essentially the same, but required to meet the legitimate and reasonable
regulatory requirements of both Governments. With only three industry participants, the
volume of regulatory requests and responses is hardly overwhelming for the regulators.
Provided the Commonwealth and State, continue to liaise on the standardisation of their
regulatory information needs there does not appear to be a need to make any changes in
relation to the regulation of the processors.
Licensing of Growers
It was pointed out in the review process that the Convention does not require the licensing
of growers for the activities undertaken in Tasmania. The Convention provisions on the
establishment of areas on which poppies can be grown and the licensing of growers is to be
found in Article 23. However these provisions apply to the cultivation of opium poppy for
the production of opium and to opium, which is not the practice in the Tasmanian Industry.
Licensing of growers has been undertaken in Tasmanian for security reasons in relation to
the security suitability of growers, to clearly establish areas sown and volumes produced,
but also to identify the location of growing areas, to avoid diversion of plants.
Local diversion of plants does occasionally occur and is carefully recorded and monitored.
Crop security as a reason for licensing of growers continues to be valid for regulation
although consideration of simplification of the grower licensing process is suggested below.
It is clear from comments made during the review that growers take their licence
responsibilities extremely seriously and are generally vigilant in their observation of
paddocks in relation to suspicious activities and the actual diversion of plants. From a
security perspective and given the now large areas of the State in which poppies are grown,
the availability of, in effect a surveillance resource is of benefit to the regulation of the
industry. Not only is the surveillance in effect free, but knowledge of the location under
surveillance and identification of “out of the ordinary activities” is comprehensive and
unique.
Recommendation 1:

That there continues to be a system of registering the names of the growers of
poppy crops and of the location of the properties on which poppies are grown.
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Growers Licence Applications
An annual licence application for growers is understandable, given that recommended best
agricultural practice is to rotate the growing of poppies in paddocks on at least a 1 in 3 year
cycle. Depending on soil qualities the rotation can be longer. Accordingly, the actual
location of the crop changes each year. Location and area to be sown to crops, are
fundamental to the regulatory security, community safety, cultivation, volume harvesting
and processing requirements.
While the processor field officers assist growers with the application process, the necessity
to provide the level of detail sought in the licence application on an annual basis should be
further reviewed.
No doubt Board and processor records can establish which growers have grown crops on
what properties and at which location over many years. The farmer and rural property
owner community in Tasmania is relatively stable.
Board records would also indicate those locations in which there have been reported crop
diversions, failure to destroy remaining poppy crop material post harvesting and failure to
destroy regrowth.
There is merit in considering a system in which growers who have had a licence for more
than an agreed number of years (maybe 3 - 5) on the same farm property and who have not
been the subject of compliance requests by Inspectors, being provided with registered
grower status, that should last for 5 years. A break in continuity of annual growing for more
than 2 years, may at the discretion of the Board require a more comprehensive grower
application and independent assessment, and any new grower with no industry history of
growing would be required to lodge a comprehensive licence application.
Instead of the detailed information required in the current annual application, it is
suggested that the grower should only have to provide advice of the following to maintain
registration for the season –




Any changes to the ownership of the property, its management, and the persons
who control or manage or who have access to the poppy crop
The details of the contract with the processor to grow
The indicative area and location of the area to be grown
A site suitability self-assessment on proximity to sensitive areas and roads, meeting
the fencing requirements and the placement of warning signs as required.
Information on the actual area and location that is sown to crop should be identified and
advised to the Board by the processors once the area is actually sown. This would avoid the
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need for additional documentation on changes of sowing areas, which can occur between
the time of the licence application and the sowing of the crop, for a range of farm practice
or climatic reasons. A proposal such as the above, was contained in the Ombudsman’s
Report in the review of the Keach licence refusal complaint in 2007. The Ombudsman
proposed that controlling the area through the processor’s licence would produce a system
which is more responsive to the realities of sowing a crop. These proposed changes should
be reflected in changes to both growers and processor’s licences.
Recommendation 2:

That there be simplification and streamlining of the current long standing annual
licensing process for growers. For example:
o Growers who have held a licence for more than three consecutive seasons,
and who have not been the subject of serious compliance requirements by
the Board should be placed on a standing register of growers
o Any new grower, or a grower who has ceased growing for two or more
consecutive seasons, will be required to submit a detailed application to
secure registration
To maintain registration a grower must provide to the Board annually the
following information:
o
Any changes to the ownership of the property, its management, and
the persons who control or manage or who have access to the poppy
crop
o
The details of the contract with the processor to grow poppies
o
The indicative area and location of the area to be grown
o
A site suitability self-assessment on proximity to sensitive areas and
roads, meeting the fencing requirements and the placement of
warning signs as required
To enable a grower to undertake a site suitability assessment the Board should
publish site suitability guidelines which should include the following:
o
sensitive areas in which crops are not be located
o
classification of roads and streets where warning signs are to be
located on fences
o
the fencing standards required for classified roads and streets
o
the criteria to be applied in making an assessment of where to fix
warning signs to fences or gates



The licence obligations of both growers and processors should be changed to place
the responsibility for advising the Board, on actual areas sown to crop on the
processors with whom a grower has a contract and to remove that responsibility
from the growers.
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Community Safety
Warning Signs on Fences
The “Danger Prohibited Area Keep Out” etc. signs affixed to fences provide the main
message to the Tasmanian community of the dangers of using the poppies for personal drug
or other use. These signs are provided by the Poppy Growers Association and installed at
the beginning and removed at the end of the season by the Inspectors. Considerable travel
time and cost by Inspectors could be avoided if the growers affixed and removed the signs
instead of the Inspectors.
There should be clear guidelines approved by the Board as to when signage is required. In
addition, this requirement could be made a condition of the growers licence.
Recommendation 3:

That growers assume the responsibility for affixing and removing the poppy crop
warning signs on fences and gates in accordance with criteria established by the
Board.
Weed Control
While ever the poppy crop is grown in Tasmania, there will continue to be a need to control
the spread of the poppy as a weed. The current obligations on growers to destroy
remaining crop and remove regrowth plants should remain.
An Independent Regulator – Roles and Responsibilities
While Tasmania’s hybrid regulatory structure (i.e. various Ministers and Departments) has
served the industry well for many years, the recent developments in the industry have
called in to question whether the interaction of the key regulatory players is sufficiently
clear, robust and responsive to address current and future industry developments and
challenges. The hybrid regulatory system that exists does cause confusion for some growers
and from information presented to the review, to at least one processor.
While it is clear from a strictly legal perspective that the regulatory licensing power resides
with the Minister for Health, the existence of the Board and the fact the word ‘Control’ is in
its title suggests to many, that the Board is the principal regulator.
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The fact that the Minister delegates some decisions to the Chief Pharmacist and not others
is also cause for confusion. Two relatively recent decisions required of the Minister under
the Act, the decision as to whether to grant the third processor licence, and a decision as to
whether a growers licence application should be approved, were delegated to persons other
than the Board, or the Chief Pharmacist.
The recent decision to approve a processor application to import poppy straw from Turkey,
contrary to the advice of the Board, which was reported in the media as an announcement
by the Minister for Primary Industry, and not the regulatory Minister, also generated
uncertainty as to roles, responsibility and decision making.
The Role of the Board
Involvement of the Board in Decision Making
While the Minister’s Delegate, the Chief Pharmacist makes the formal decisions under the
Act in relation to licence issue and conditions, in practice the Board participates in the policy
and operational merits of licence applications and decisions.
While the industry is aware of these arrangements, information was provided to the Review
that indicates that on some occasions there has been uncertainty as to which party to
approach for advice or decision, the Board, through the Chairperson or General Manager, or
the Minister’s Delegate, the Chief Pharmacist. This has caused delays in the receipt of
advice, asserted to be to the commercial disadvantage of the party concerned. On
occasions, when satisfactory answers have not been achieved through that process, the
regulatory Minister or others in Government are approached to achieve a response.
Without going into the merits of those matters, it is clear that in the current system there is
scope for delay and confusion which should not exist in an efficient regulatory system.
When the Board seeks to take certain actions for which there is no formal regulatory
authority, those actions are being subjected to legal scrutiny. Board views on the
international obligations that are required to be met in Tasmania are also questioned.
The lack of written policies and guidelines used by either the Board or the relevant decision
maker as delegate in the exercise of the Minister’s discretion does not provide transparency
and independence in decision making.
The Board’s view of what is in the best interests of the Tasmanian industry and its view of
how domestic activities and decisions might impact on the international reputation and
viability of the Tasmanian industry are also questioned.
The Board’s approach to the regulation required for research and development, the growing
of alternative crops being an example, is also subject to question.
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Key players in the Tasmanian economic development and primary industry government
sectors have recently become more actively engaged with industry development matters.
This includes senior public servants and their Ministers.
The issue of availability of land in Tasmania to meet the supply of product required by the
processors, and the issues associated with processor investment for increased
manufacturing capacity, which have focussed on the import of poppy straw, is an example
of wider bureaucratic and Ministerial interest. The Board’s views on the importation issue
subject have been one of the matters that are the subject of political debate and
parliamentary assessment.
The merits of these matters are not the subject of this review. However the issues clearly
raise the question of whether the Board is a regulator ensuring that regulatory obligations
are met, whether it is the custodian of the Tasmanian industry and its reputation, in effect
exercising oversight or supervisory responsibilities, or whether it has wider industry
development responsibilities.
The Board’s General Advisory Functions
The hybrid regulatory model that currently exists, taken together with the generally worded
functions of the Board in the Act, enables the Board to be rightfully involved in all of the
above matters. Included in its functions are –




to act in any matter relating to the alkaloid industry as may be directed
to liaise with the Commonwealth in order to fulfil Australia’s obligations under the
Convention
to advise the Attorney General and the Minister for Health on any matter relating
to the alkaloid poppy industry
to do anything, and provide such other advice to other Ministers as may be
requested by those Ministers.
These general functions, particularly the highlighted dot points give to the Board a wide
ranging brief to advise many Ministers on any matter related to the poppy industry. The
Board has quite properly exercised it authority to provide advice on matters of industry
commercial activities and matters that may require activity by the Board or decision by the
Minister or the Minster’s Delegate.
Regulatory and Advisory Role Issues
However, the perceived and actual regulatory role of the Board and its wider advisory role
on any matter concerning the industry can result in its expressed position on one matter
compromising or being perceived to compromise its position on other matters and vice
versa. An example is the initial Board position on the entry of a third processor into the
market and then under the hybrid regulatory model having responsibility to play a role in
the regulation of the activities of that processor. It is clear from information provided to the
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review that there has on occasions been a difficult ‘regulatory relationship’ between the
third processor and the Board. Another example is the recent Board advice on
consequences that many follow from the importation of poppy straw. If importation should
occur, the Board will have a subsequent role in the regulation of that activity.
The need for a Board
It was pointed out in the Review process, that there is no international convention
requirement for there to be a Board. There is a need for national opium agencies to be
established under Article 23 of the Convention, but this is for those Convention parties
(countries) which cultivate opium poppy for the production of opium.
A range of stakeholder views were expressed in relation to the continued need for the
Board.
The views included –




With the possibility of the growing of poppies elsewhere in Australia, it was time to
move towards the establishment of a national board so that there were common
industry regulatory standards
There is no need for a State Board as the regulatory functions could be undertaken
by Commonwealth officials as in effect there is a duplication of roles
The Board should be a one stop shop for the industry
Status quo – the Board had served the industry well over the past 40 years and there
was no need for change
On careful consideration none of the stakeholder views are supported.
The need for change to the establishment of a national board is premature. While additional
regulatory activity could be exercised by the Commonwealth, it has shown no inclination to
do so, and in any event Tasmania regulates the industry for its own community safety and
biodiversity reasons. If the Board is to be an independent regulator it cannot be a one stop
shop for the industry on all matters. As discussed below, industry development activities
need to be debated and progressed by industry and interested government participants
within parameters of the international and domestically agreed regulatory environment.
Industry commercial circumstances, innovation and competition invariably push at the
boundaries of regulatory control and unless there is a clearer definition of the Board’s role,
future areas of uncertainty and potential disputation will arise.
A decision needs to be made as to whether the Board is a truly independent regulator of the
industry, whether it has a somewhat undefined, and wide ranging role of general industry
oversight or whether it has responsibility for industry development policy and action.
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The circumstances of the Tasmanian industry and the issues before it lead to the conclusion
that the time has passed when the Board can be part regulator, part industry custodian and
adviser to all Ministers on all matters associated with the industry.
The Board currently and uniquely has knowledge of the international, national and state
regulatory requirements for the industry. Regardless of the “legal niceties” of the
arrangements that have existed between the Minister, the Chief Pharmacist and the Board,
the Board has principally played a regulatory role in relation to the industry in the past.
Compliance with international requirements, the 80/20 Rule, security, safety of the
Tasmanian community, weed control - the key reasons to regulate - have all been within
the purview of the Board. Past experience indicates that participation in the debate on
industry initiatives or policy, potentially compromises the Board, in relation to its
independent regulatory role. This leads to the conclusion that the role of the Board should
be a regulatory role.
In order to establish an unambiguous regulatory role for the Board, it is suggested that the
Minister delegate to the Board all those powers that are currently delegated to the Chief
Pharmacist in relation to the licensing of growers and processors, save for what might be
described as the ‘industry development’ powers. The ‘industry development’ powers are
those which enable the granting of a licence to an additional processor and the power to
approve the importation of quantities of poppy straw or other narcotic product for
commercial processing as opposed to quantities required for research and development. A
proposal for the process to be followed in relation to the granting of those licences is
detailed later in this report.
Given the stated reasons for regulating the industry in Tasmania, absent a Board, some
person or other organisation would need to discharge the regulatory functions. No
compelling reason to abandon the Board in favour of another body was advanced in the
review process. As discussed below, a Board with membership that includes members with
knowledge of all aspects of the activities required to be regulated in the industry, presents
as a sound option for future regulation.
Recommendation 4:
That the Act be amended


to remove the Board’s general advisory functions in relation to any matter relating
to the alkaloid poppy industry
to enable the Board at any time, to advise the Attorney General and the Minister,
on the need for any changes to the regulatory structure or powers necessary to
regulate the industry or the making of specific regulations
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
to enable the Minister to delegate to the Board the responsibility to determine
and issue all poppy industry licences under the Act other than licence applications
for new processors to enter the industry or licences for the processing of the poppy
straw or other narcotic materials imported for commercial processing.
Liaison with the Commonwealth to fulfil International Obligations
There are three key reasons why the Board should continue to discharge the function of
liaison with the Commonwealth to fulfil Australia’s international obligations under the Single
Convention
First, the Commonwealth Government is required to meet the obligations incurred by the
Single Convention and the co-operative arrangements in that regard that have pertained
over the past 40 years must be maintained to achieve a regulatory system that discharges
Australia’s obligations.
Second, the Commonwealth Government as the state party to the Convention, has right and
the responsibility to attend and participate in the INCB meetings. The co-operative
arrangements mentioned above have seen Tasmania participate on the Australian
Government delegation for many years. It has been beneficial to the development of the
Tasmanian industry and its regulation to have access to the forum in which the key
international decisions are made, and at the same time to gain an understanding of the
rationale for those decisions. This opportunity must be maintained.
Third and potentially an emerging issue, is the possibility of the other States or Territories,
seeking to grow poppies for poppy straw. Any decision that might be made in this regard
will clearly have implications for the Tasmanian industry, in particular the growers. A
regulatory Board should not participate in the political considerations surrounding any such
decision. However the development of any national industry standards will be of critical
interest to the Board, and it should maintain a close association with the Commonwealth in
relation to any developments in this area, should a change in Tasmania’s monopoly grower
status occur. It will also be necessary to ensure that Tasmania’s industry standards continue
to be best practice and not put the Tasmanian industry at a disadvantage because of
inappropriate or unnecessary regulatory control.
Recommendation 5:

That the Board’s functions should continue to include liaison with the
Commonwealth on fulfilling Australia’s international obligations.
Page 37 of 79
Performance of the Board
The Keach Matter
The Review was informed of the case of a grower (Anthony Keach) who it was alleged, grew
more than his agreed allocation of poppy crop. This matter was reported to the Board and
subsequently resulted in a licence application review, when the grower sought a licence for
the 2005/6 season. The Minister appointed a special delegate to hear and determine the
matter. The licence application was denied and resulted in the applicant taking unsuccessful
legal proceedings before the Supreme Court. Subsequently there was a complaint to the
Ombudsman which led to a review of Board procedures and decision making. The
Ombudsman is a special report of October 2007 criticised an aspect of the process followed
by the Board leading up to the decision of the delegate. The merits of the matter do not
need to be revisited in this report. The grower concerned was able to secure a licence for
the next season and is a successful industry participant. Of interest however is an
observation of the Ombudsman at p. 27 of the 2007 Report that –
“The present arrangements for managing the industry may have been appropriate for a
fledgling industry, but are anachronistic for controlling an industry which has achieved such
significance to the Tasmanian economy and such significance within the global licit opiate
market.”
Accessibility and responsiveness of the Board
Information was provided to the review which indicated concern by a processor of delays in
the decision making process and a general lack of timely responses to queries and requests.
While the merits of these matters were not specifically reviewed, there does appear to be
scope for a clearer delineation of responsibility between the General Manager of the Board
and the Chairperson, so that the industry is clear as to whom to approach and when, about
which matters, and also the timeline within which responses can be expected.
In relation to the past growing season it was alleged that after considerable delay there was
an arbitrary decision made by the Board to prevent the growing of poppies in a particular
area of the State. The decision was said to be arbitrary because the reasons for the decision
were both illogical and unreasonable. The potential grower had also incurred some expense
in anticipation of approval to grow.
Regardless of the merits of this matter, it would be beneficial if there were readily available
guidelines on areas where growing will not be licensed. Similarly if there are areas where
growing is not desirable, because of proximity to residential areas or schools or other uses
that might be sensitive in the context of access to a dangerous crop, those areas or at least
the criteria that apply to preclude growing in those areas should be produced.
Page 38 of 79
Administration and Enforcement
As mentioned earlier in this report, it is not easy to find out the details of the regulatory
system, on what matters a discretion might be exercised, or to obtain information on
guidance on how to participate in the industry.
During the period of the Review, the position of General Manager of the Board has been
vacant. This made the gaining of information more challenging as the position of General
Manager has clearly been a key position in the regulatory structure in the past.
There is clearly scope for the Board to increase the amount of documentation that is
available to industry participants and the public on how the poppy industry is regulated and
the considerations that the Board will take into account in decision making. This might be
done by way of Board recommendations for the making of regulations, or through codes of
practice or guidelines established by the Board. In undertaking this work, the Board should
consult closely with the industry participants. The Board should also place more information
on its website.
Clearly the Board should be supported by a competent and committed senior official, be it a
replacement general manager or similarly titled position. Effective Board operations also
require the filling of this position with an appointee who has a sound understanding of the
role of a regulatory organisation.
Recommendations elsewhere in this report, indicate changes to the licensing of growers and
processors and changes to practices that have in the past, been the responsibility of the
Board’s inspectors.
While there is no doubt that there is a need for an independent inspectorate to maintain
security checking and surveillance, the independent auditing of activities and to ensure
required agricultural clean up practices are performed, the changes recommended in this
Report would alter the responsibilities of the inspectors. If the changes are adopted, it is
suggested that the effect of the changes be identified and mapped and the current
administrative and business processes of the Board reviewed and reorganised. This will
ensure that the essential regulation that is required to support and protect the interests of
the industry is as cost effective as possible.
Consideration should also be given to the means available to the Board and the Board’s
Inspectors to ensure that the licence conditions can be easily enforced. Clearly a decision to
withdraw a licence for failure to comply with a key licence obligation must only be
undertaken in accordance with administrative due process. However failure to comply with
some of the growers licence conditions, such as the requirement to destroy poppy material
after harvest within 7 days, might be better enforced by enabling the Inspectors to issue
infringement notices to growers, rather than have to resort to proceedings associated with
potential loss of licences.
Page 39 of 79
In light of any changes to licence conditions and the review of the administrative and
business processes of the Board’s Inspectors, a review of the licence enforcement powers
available to Inspectors should be undertaken to establish similarly efficient enforcement
powers and procedures.
Recommendation 6:




That the Board review and re-establish effective and responsive administrative
practices and procedures
That the Board undertakes a review of its current practices and procedures with a
view to publishing appropriate guidelines or codes of practice to inform and assist
the industry participants and the general public on how the industry is regulated.
That the Department of Justice in consultation with the Board, undertake a review
of the Board’s business processes and administrative procedures, in particular the
activities of the Board Inspectors, with a review to ensuring that the activities
undertaken are as cost effective as possible
That the Board, review and make recommendations to the Attorney General on
any additional enforcement powers that should be available to the Inspectors to
facilitate efficient enforcement of the requirements of licences and any other
relevant provisions of the Act.
Composition of the Board
Current Composition
The Board currently comprises 




A chairperson appointed by the Minister
The Secretary of the Department responsible for the Public Health Act 1997 or a
nominee of the Secretary
The Commissioner of Police or nominee
The Secretary of the Department responsible for the Agricultural and Veterinary
Chemicals (Tasmania) Act 1994 or nominee
A person nominated by the Secretary of the Commonwealth Department responsible
for the grant of licences to manufacturer drugs under the Commonwealth Narcotic
Drugs Act 1967
The Board for the majority of its existence has had a chairperson with legal qualifications,
with all but one of those incumbents having held senior government legal positions.
Page 40 of 79
In practice nominees have been appointed to the Board by the respective Departmental
Secretaries and the Commissioner for Police, and the nominees have been senior
departmental officials from the respective, health, police and primary industry departments.
Possible Industry Representation
Views on the continued or future composition of the Board membership were in part driven
by the fact that the activities and operations of the Board might in the future have to be
paid for by the industry.
This generated a view in one party, that if industry were to pay for the Board and its
activities, then industry was entitled to Board membership. That would enable the industry
to be informed of and have a say in the regulatory activities that the Board should
undertake and the cost of that undertaking, thus ensuring that the financial burden on
industry was the least possible.
With the same knowledge about potential industry payment for Board activities, other
stakeholders considered that the independence and integrity of the Board would be
compromised if it included industry representatives, because the perception of industry
interests, acting in their own interests, is difficult to disavow.
It is clear that one of the benefits of the current Board composition is its complete
independence from the industry which it is involved in regulating. This is a benefit to the
reputation of the Tasmanian industry generally, but also of benefit to the reputation of the
Tasmanian processors in the international arena.
Should the policy decision be taken to require industry to pay for the operation and
activities of the Board, industry representation on the Board could result in the perception
of commercial influence on the regulatory system, which could in turn compromise the
integrity of the Tasmanian system.
Recommendation 7:

That the Board continue to be comprised of membership with no association with
the industry.
Chairperson of the Board - Independence
There are no experience or qualification requirements specified for appointment to the
position of Chairperson. Given the nature of the regulatory regime that is administered, and
the importance of the presentation of that independent regulatory regime, the
independence could be further strengthened by making provision in the Act for the
appointment of an ‘independent’ chairperson.
Page 41 of 79
Independent in this context, would be no past or current affiliation with the industry sector
or current affiliation with the State or Australian governments. The chairperson would thus
be able to bring an ‘association free’ approach to the regulatory tasks and decisions of the
Board. While legal qualifications and experience either in legal practice or as a senior
administrator should not be seen as a prerequisite to appointment to the position of
chairperson, those skills and that experience can be of benefit in the administration of
regulatory systems.
In must be added however, that this is not to suggest that the current incumbent has not
acted independently.
Recommendation 8:

That the Act be amended to specify that the Chairperson of the Board is to be an
independent Chairperson.
Board Membership – Health, Primary Industry and Police
Bringing a balance of expertise and experience in the areas of health, primary industry and
police to the Board’s deliberations has been and continues to be the expertise and
experience that is most relevant to the responsibilities and activities of the Board.
The continued representation on the Board of senior and experienced state government
officials in these areas is supported. It gives to the Board a broad knowledge and
perspective on the different aspects of the industry that need to be regulated, a breadth of
knowledge and experience that would almost certainly not be found in a single person
regulator.
It is however important that those persons appointed bring operational knowledge and
expertise to the Board’s deliberations as opposed to general policy expertise. What the
Board must regulate, is practical day to day operations and specialised agricultural and
manufacturing activities and research and development and a level of expertise that
matches that of the sector that the Board regulates is required.
Recommendation 9:

That the representation from the areas of health, primary industry and police be
maintained on Board membership and that the appointees have practical and
operational expertise in their discipline areas.
Page 42 of 79
Commonwealth Nominee Membership
During the course of the Review, it came to light that although the Act enables the
appointment of a Commonwealth nominee to the Board, no such appointment has been
made by the Secretary of the responsible Department.
Notwithstanding, the practice is that a Commonwealth representative attends the Board
meetings, participates in the discussions as appropriate, but does not take part in any
decision making. There is no information or suggestion that this has in any way detracted
from the Board’s deliberation or has affected the co-operative arrangements that exist
between the Board and the relevant Australian Government officials in the regulation of the
industry.
It is understood that formal membership of the Board is not sought, as it is not considered
appropriate for a Commonwealth official to be subject to the direction of state officials
(s.59I(a) of the Act) or need to meet the requests of State Ministers (s.59I(h) of the Act).
Absent a change of position from the Commonwealth, it appears that the ability of the
Commonwealth Secretary of the responsible Department to nominate a member of the
Board should be removed from the Act.
If that were to occur however, formal provision should be made for a nominee of the
Secretary to attend the meetings of the Board as an official Board observer and also to
receive all Board papers and briefings. The relationships that exist between the Board and
the Commonwealth officials should be maintained given the past success of the
collaboration on the international and national regulatory arrangements.
Recommendation 10:
That the Act be amended to


remove the requirement for Commonwealth membership of the Board
provide for formal observer status on the Board for the nominee of the Secretary of
the Commonwealth Department for the grant of licences under the Commonwealth
Narcotic Drugs Act , and for that person to be given access to all Board papers,
minutes etc.
Board Membership – Secretary of the Department of Justice or Nominee
As mentioned elsewhere in this report, one of the ways of pursuing and evidencing the
independent regulatory role of the Board was and is by placing Ministerial responsibility,
and administrative support and accountability for the Board ,with the Department of
Justice. As a result there could be no perception that understandable and legitimate
Page 43 of 79
industry development interests and objectives of the economic and primary industry
Ministers and agencies would compromise the regulatory responsibilities of the Board.
This situation could be strengthened by adding the Secretary of the Department of Justice
or nominee to membership of the Board in place of the Commonwealth nominee. The wider
systemic role that the Department plays in the independent administration of justice would
add further strength to the security and compliance considerations of the Board.
It would also provide a formal link between the Board and the agency that is
administratively responsible to support the Board and resource its activities, and
importantly to provide agency knowledge of the Board’s issues and activities. This will assist
with the day to day management control of the Board staff and their activities.
Recommendation 11:

That the Act be amended to provide for the Secretary of the Department of Justice
or nominee to be appointed to membership of the Board.
INDUSTRY, INDUSTRY DEVELOPMENTS AND THE
BOARD
Industry Development
The development potential of the industry has been the subject of recent debate,
particularly the availability of land for the planting of additional hectares of the crop,
potential benefits for the industry flowing from irrigation investments and the more
controversial issue of the import of poppy straw for commercial processing.
It is a matter for the industry and the government agencies that support the industry
objectives and its development, to establish a forum or consultative mechanism to discuss
industry development activities and how they might be progressed. Indeed it is understood
that there have been a number of meetings of the interested parties.
Factored in to these discussions however must be that the industry is and remains one in
which the activities are closely regulated and must comply with strict reporting obligations
associated with the product it produces or imports and the need to maintain strict security.
Page 44 of 79
As the regulatory body, the Board must have direct input into the development any
legislative change and the establishment of any industry regulations and standards. It should
be responsible for the development of any industry codes of practice or guidelines.
Consideration needs to be given as to how the Minister who has a particular interest in and
responsibility for poppy industry development, the Minister responsible for Primary Industry
liaises with the two regulatory Ministers, the Minster for Health and the Attorney General.
It is a matter for the Government to determine those matters in relation to policy
development.
However where industry development issues result in considerations that may cause the
Minister to consider the exercise of statutory decision making powers, it is desirable to
formalise the consultation processes that should take place, so that the Minister is
appropriately informed on all the relevant considerations. It is suggested that the Act be
amended to require the Minister to seek the advice of the Attorney General and the
Minister for Primary Industry on the industry development licensing matters of granting a
licence to a new processor, and importation of quantities of poppy straw or other narcotic
product for commercial processing. Prior to providing advice, the Attorney General should
seek the advice of the Board on any regulatory considerations or implications associated
with the matter under consideration. This will enable the Board’s special knowledge of
international, national and local regulatory considerations to inform any licencing
considerations and decisions to be made by the Minister.
Recommendation 12:


That the Act be amended to require the Minister to obtain the advice of the
Minister for Primary Industry and the Attorney General, prior to making any
decision in relation to the granting of a licence to an additional processor or the
importation of quantities of poppy straw or other narcotic product for commercial
processing.
That the Act be amended to require the Attorney General to seek the prior advice
of the Board on any domestic, Australian or international regulatory issues
associated with any processor or import application.
Page 45 of 79
Industry Development Issues and the Board
R & D Programs
Processor Research, Scientific Study or Innovation, Sample Products
One issue that appears to have been a cause for differences between a processor and the
Board or the Minister’s delegate is the use or import of materials for research, scientific
study, product innovation or the production of sample products for consideration by
potential customers.
Regardless of the activity proposed or the relatively small quantities of product involved,
there remains a requirement to identify and document any narcotic product to comply with
regulatory requirements. Where what is proposed by a processor is a new initiative,
needless to say the regulator must give appropriate consideration to the application of the
appropriate regulatory controls and to whether new controls or new licence conditions are
required. This is sometimes a lengthy process and the source of some frustration to all
parties.
A process whereby the developmental programs of a processor are established in a forward
plan and are confidentially submitted to the Board for consideration in advance of desired
implementation dates would be advantageous to the Board in the timely discharge of its
responsibilities. It would also give knowledge to the processor of timelines for the due
consideration of the matters, in advance of commercial issues and pressures arising.
Recommendation 13:

That processors should submit an annual research and development plan to the
Board which indicates any regulatory approval that may be required into the
future.
Poppy Straw Processing Waste Products
Processors generate both solid and liquid waste products as a by-product of their processing
of poppy straw. The use of these products is limited because of their alkaloid content.
Although the alkaloid content in extremely low, the product still retains measurable alkaloid
content and is thus controlled by the Act. Approval can be given by the Tasmanian
regulatory authorities for the waste to be utilised by spreading or spraying it on paddocks, if
done under the supervision of the processor.
Any wider use of the product can only occur when the alkaloid content status of the product
is such that it meets different requirements in the Act.
Page 46 of 79
If there is a beneficial use for these products, it would appear that co-operation between
the supporting state government agencies, the processors and ultimately the regulator
should take place to establish whether beneficial waste products that can meet the
requirements of the Act can be developed.
Recommendation 14:

That collaboration between the industry processors and supporting government
agencies should take place to ascertain whether the regulatory requirements of the
Act can be met to establish beneficial uses, commercial or otherwise, for industry
waste products.
Cultivation of the Poppy Plant Papaver Bracteatum
Papaver Bracteatum is a variety of poppy plant controlled under the Poisons Act in
Tasmania in the same way as the variety Papaver Somniferum. Its use is prohibited except
in accordance with that legislation.
However, it is a variety of poppy for which no control provisions are contained within the
1961 Single Convention on Narcotic Drugs. Whilst approved scientific research is being
undertaken both locally and internationally, it is not commercially cultivated. However, the
International Narcotics Control Board is carefully monitoring the research by the voluntary
reporting of statistics on cultivation and production and has recommended international
control once commercial cultivation is commenced.
By international resolution 1982/13, the UN Economic and Social Council appealed to
Governments to refrain from commercial cultivation of Papaver Bracteatum. Pursuant to
that resolution, no Government is yet to allow commercial cultivation of this variety.
Whilst the reasoning behind this “prohibition” in the 1980s centred around control and
supply of raw narcotic material and the extraction of alkaloid content (particularly
thebaine), the now preferred papaver somniferum variety of opium poppy rich in thebaine
has proved to be more commercially viable.
Given the ongoing investment in Tasmania of papaver bracteatum trials and related
research activities by one processor, it would appear desirable that the future status of the
commercial development of this plant in Tasmania be established by the regulatory
authorities at a state and national level. If it is decided to support the development of this
poppy variety then any international obligations or restrictions need to be resolved.
Page 47 of 79
Recommendation 15:

That the Board seeks to resolve the future status of the commercial development of
papaver bracteatum in Tasmania.
Industry and Board Engagement
There is a need for the Board and/or its officers as appropriate to the matters at hand, to be
accessible for advice, direction and decision making in accordance with the usual business
arrangements that one would expect from a regulator engaging with the individual
stakeholders in its sector. Board staff must be responsive in their communications with
stakeholders, have the capacity to efficiently escalate matters to the Board Chairperson as
required and for the Chairperson to escalate matters to the Board level. This may
necessitate more Board meetings than have taken place in the past.
To efficiently and effectively regulate the industry, the Board must obviously be fully
appraised of developments in the industry at an international level and at the domestic
level.
Participation as part of the Australian delegation to the annual INCB meetings enables the
Board to be well informed on international developments, including industry developments.
The Board also needs a regular and structured approach to both informing and being
informed about developments in the local industry that are relevant to the Board’s
regulatory functions.
Two approaches are suggested 

an annual Board/industry forum
establishment of Board technical or advisory committees
Annual Board/Industry Forum
The Board should be accessible to the local industry through an annual meeting with
representatives of the processors and representatives of the growers and any growers who
wish to attend. This would provide a regular forum for the industry, relevant Tasmanian
Government officials and the Board, to engage on matters of mutual interest and give the
industry certainty of access and input into the Board’s deliberations and business schedule.
The business for this meeting will obviously vary from time to time, but matters of annual
relevance would appear to be -
Page 48 of 79




any international or Australian developments which are impacting on the local
industry in relation to the Tasmanian regulatory structure, including INCB
developments
regulatory controls in relation to research, innovation or trials
any potential or industry suggested changes to the Tasmanian regulatory structure
the efficiency and effectiveness of the Board and its operations and of Board staff.
Board Technical or Advisory Committees
The Board could effectively engage with the industry and government officials through the
establishment of special advisory committees to consider policy issues associated with
matters that go to informing regulatory structures or decision making. If the business
warranted it, the Board could establish standing committees, but it is more likely that such
committees would be task focussed and time limited.
Recommendation 16:


That the Board convene an annual industry Board forum to review developments in
the industry on an international, national and local level that impact on the
regulation of the Tasmanian industry
That the Board, as appropriate, convene special technical or advisory groups or
committees to consider and provide recommendations to the Board relevant to the
regulation of the industry.
Page 49 of 79
Page 50 of 79
APPENDICES
Appendix 1
TERMS OF REFERENCE – REVIEW OF THE TASMANIAN POPPY
INDUSTRY REGULATION
To undertake a review of the regulation and oversight of the poppy industry in Tasmania,
and provide the Attorney-General with a report providing advice on:
1. Option for a contemporary regulatory framework that support and protects the
Tasmanian Poppy Industry, provides appropriate safeguards for the community, and meets
national and international obligations for the safe and secure growing of poppies.
2. The role and functions required into the future for regulation and oversight of the poppy
industry in Tasmania taking into account the views of all the relevant stakeholders,
including:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Poppy farmers
Manufacturers
Relevant agencies of The Commonwealth of Australia including the
Department of Health and Aging, and Customs.
The Department of Health and Human Services
The Tasmanian Department of Justice
The Tasmanian Department of Primary Industries, Parks, Water and
Environment
Tasmania Police
Current members of the Poppy Advisory and Control Board
1. And having regard to:
The need for independent oversight and regulation
International regulatory frameworks
State and Federal legal requirements
Security Issues
Supporting and growing the Tasmanian Poppy Industry
Keeping the regulatory and cost burden on industry to a minimum, and
avoiding unnecessary duplication
Current industry an farming practices
Page 51 of 79
Appendix 1
3. Recommendations as to:
1.
2.
The optimal structure for the regulation of the industry.
A suitable mechanism for the future industry engagement with the regulatory
body, while maintaining strict independence of the regulator’s functions and
decisions.
Page 52 of 79
Appendix 2
WRITTEN SUBMISSIONS
Written submissions were received from -
Chris Broad (Concerned Citizen)
Lyndley Chopping (Immediate Past President PGT Inc.)
Australian Customs and Border Protection Service
Department of Economic Development, Tourism and the Arts
Department of Health and Ageing (Commonwealth)
Department of Health and Human Services
Department of Police and Emergency Management
Department of Primary Industries, Parks, Water & Environment
GlaxoSmithKline
Michael Hart (PACB Board Member)
Poppy Growers Tasmania Inc
V. G. Spencer and Son
Tasmanian Alkaloids Pty. Ltd
Tasmanian Farmers and Graziers Association
TPI Enterprises Ltd.
Page 53 of 79
Appendix 3
CONSULTATIONS
Meeting and Telephone Consultations
David Cullen (PACB Field Officer)
Jan Davis (TFGA)
Mike Doyle (GSK)
David Gatenby (TFGA)
Patrick Grant (GSK)
Cathy Griggs (Potential Grower)
David Hingston (TFGA)
Michael Hart (PACB Board Member)
Darren Jones (Department of Health of Ageing)
Tony and Rebecca Keach (Growers)
Rohan Kile (GSK)
Peter Patmore (PACB Chairperson)
Keith Rice (PGT)
Jarrod Ritchie (TPI)
Tol Sereda (Tasmanian Alkaloids)
Mary Sharpe (Chief Pharmacist and PACB Board Member)
Nick Steel (TFGA)
Frank Webb (PACB Senior Field Officer)
Growers Meetings
Oatlands – 4 March - 7 Attendees
Longford – 5 March – 4 Attendees
East Devonport – 6 March 2013 – 7 attendees
Page 54 of 79
Appendix 3
Rocky Cape – 7 March 2013 – 3 attendees
Scottsdale – 20 March 2013 – 5 attendees
A Note on the Grower Meetings
While five grower meetings were held around the State, given the many hundreds of
growers state-wide, the attendance at the meetings was very low. This is possibly explained
by three factors.
First, the overwhelming majority of growers are represented by their association, Poppy
Growers Tasmania Inc. The Association is knowledgeable about the sector and active in
promoting the industry generally, as well as representing the interests of growers. In this
regard the association informed its members by special newsletter of the forthcoming
meetings and of key issues that needed to be considered in the Review. In light of this
advice to its members, the members may well have concluded that their issues and interests
were already being effectively advanced by their association.
Second, and perhaps the most compelling reason, is that contrary to the impression that the
licence application and licence requirements might convey, the regulatory system has
limited impact on growers. The way the system now effectively operates, is that apart from
having to secure a criminal history check on their suitability to be a grower, it is the
processors and their staff who spend the most time interacting with the regulatory system
rather than the growers.
The need for a grower to hold a contract with a processor to grow a crop, as a prerequisite
to gaining a licence, results in the processor field staff in effect organising the necessary
paper work for growers to sign. The warning signage on fences is supplied by the growers
association and affixed by the Inspectors. After that, the cultivation of the crop is
undertaken with the advice of the processors field staff and the harvesting and transport of
the crop, is undertaken by contractors engaged by the processors. Growers need to be
vigilant to ensure that there is not unauthorised intrusion on to their property where the
crop is growing, and that there is no interference with their crop. But all growers are
ordinarily vigilant about any intrusion on to their property. Thus the actual regulatory
compliance burden on farmers is limited.
Finally, and although the meetings were scheduled at the end of the poppy harvesting
season, and in the early evening, growers, who are invariably farmers with numerous other
primary industry pursuits besides the growing of poppies for part of a year, have many
demands on their time, and attending a consultation meeting simply may not have been a
high priority in light of the above two matters.
Page 55 of 79
Appendix 4
AN OVERVIEW OF THE REGULATORY REGIME
What is the current regulatory scheme that governs the growing and manufacturing of
poppies in Tasmania?
The opium poppy papaver somniferum is grown commercially in Tasmania. At different
stages, this plant can produce raw opium, poppy seeds and poppy straw. Manufacturing
processes are able to extract opiates and alkaloids from each of these substances and
ultimately produce narcotics.
The preferred Tasmanian method of cultivation is the production of poppy straw.
Because of the potential for this plant in both its raw and processed form to be misused, the
growth, manufacture and possession thereof is regulated on an international, national and
local state level.
What are our International Obligations?
Australia is a signatory to the United Nations Single Convention on Narcotic Drugs 1961. 1
Parties to the Convention undertake to limit the production, manufacture, export, import,
distribution and stocks of, trade in and use and possession of the controlled drugs so that
they are used exclusively for medical and scientific purposes.
The production and distribution of controlled substances must be licensed and supervised,
and Governments must provide estimates and statistical returns to the International
Narcotics Control Board (INCB) on the quantities of drugs required, manufactured and
utilized and the quantities seized by police and customs officers.2
The INCB is established under the Convention and is an independent, quasi-judicial body
mandated to promote and monitor Government compliance with the international drug
control conventions.
The INCB Annual Report reviews the status of implementation of the drug control treaties,
highlights ongoing challenges in drug control, and makes recommendations to Governments
and international and regional organizations.
1
Australia ratified the amending Protocol to the International Single Convention on Narcotics Drugs 1961 on
22 November 1972.
2
http://www.incb.org/incb/en/narcotic-drugs/index.html
Page 56 of 79
Appendix 4
Under the Convention, control is exercised over 119 narcotic drugs 3 , mainly natural
products, such as opium and its derivatives, morphine, codeine and heroin, but also
synthetic drugs, such as methadone and pethidine, as well as cannabis and coca leaf.
The Convention establishes strict controls on the cultivation of opium poppy and its
products which in the Convention are described as “narcotic drugs”.
The term “drug” is defined as any of the substances in Schedules I and II of the Convention.
“Opium” is a Schedule I drug and defined as the coagulated juice of the opium poppy.
“Opium poppy” means the plant of the species Papaver Somniferum. 4
“Concentrate of Poppy Straw” is also a Schedule 1 drug in the Convention and defined as:
the material arising when poppy straw has entered into a process for the concentration of
its alkaloids when such material is made available in trade, (“Poppy straw”: all parts (except
the seeds) of the opium poppy, after mowing).
The Schedules are regularly updated and comprised in the List of Narcotic Drugs under
International Control (the Yellow List) currently in its 50th edition, published in December
2011.5
Under the Convention, “manufacture”, means all processes, other than production, by
which drugs may be obtained and includes refining as well as the transformation into other
drugs.6
“Cultivation” means the cultivation of the opium poppy.7
Article 23 of the Convention provides that a Party that permits the cultivation of the opium
poppy for the production of opium must establish and maintain a government agency to
carry out the Convention obligations.
That Article further sets out the requirements for the cultivation of the opium poppy for the
production of opium. Namely, the designation of land where cultivation will be permitted;
the requirement for cultivators to be licensed; the licence to specify the extent of the land;
the requirement for the Agency to take delivery of and purchase all crops; and the exclusive
right of the Agency to import, export, trade and maintain those stocks.
Tasmania does not cultivate the opium poppy for the production of opium, but rather for
poppy straw.
3
NO 001 8008-60-4 OPIUM* the coagulated juice of the opium poppy (plant species Papaver somniferum L.)
4
Single Convention on Narcotic Drugs 1961, Article 1
http://www.incb.org/documents/Narcotic-Drugs/Yellow_List/NAR_2011_YellowList_50edition_EN.pdf
6
Single Convention on Narcotic Drugs 1961, Article 1
7
Single Convention on Narcotic Drugs 1961, Article 1
5
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Article 25 of the Convention deals exclusively with poppy straw and provides that a Party
that permits the cultivation of the opium poppy for purposes other than the production of
opium is to ensure by appropriate measures that opium is not produced and that the
manufacturer of drugs from poppy straw is adequately controlled.
Import certificates and export authorisations are still required as well as the requirement to
furnish statistical information on the import and export of poppy straw.
Article 29 deals exclusively with the manufacture of drugs requiring that Parties must
require manufacturers to be licensed. In addition, the Parties must: control all persons and
enterprises carrying on or engaged in the manufacture of drugs; must control under licence
the manufacturing establishments and premises; and require the licensed manufacturers of
drugs to obtain periodical permits specifying the kinds and amounts of drugs which they
shall be entitled to manufacture. There is a further requirement that Parties shall prevent
the accumulation in the possession of drug manufacturers of quantities of drugs and poppy
straw in excess of those required for the normal conduct of business.
The time during which the opium crop is in the hands of the individual farmer is the most
critical period from the view point of narcotics control. It is during this period that diversion
of legally harvested opium into illicit channels usually takes place. It is often quite impossible
to estimate with exactitude the amount of opium actually harvested by the farmers, who are
often very poor and are attracted by the relatively high prices offer by illicit traffickers. For
this reason it is important that the time between the harvest and the delivery of the crop
should be as short as possible.8
How are our International Obligations Implemented into Australian Law?
Australia ratified the amending Protocol to the International Single Convention on Narcotics
Drugs 1961 on 22 November 1972. The Single Convention was implemented into Australian
law by virtue of the enactment of the Narcotics Drugs Act 1967 (Cth).9 This Act and hence
the Convention obligations are jointly administered by the Chief Executive Officer of
Customs under the Commonwealth Attorney General’s Department and the Commonwealth
Minister for Health and Ageing.10
The Act regulates the manufacture of, and makes other provision with respect to, narcotic
drugs in accordance with the Convention.
8
United Nations Commentary on the Single Convention on Narcotic Drugs 1961, published 1973
See generally “Treaty Making Process” http://www.dfat.gov.au/treaties/making/
10
Commonwealth Administrative Arrangements Order - 09/02/2012
9
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Appendix 4
“Drug” means any substance that is a drug for the purposes of the Convention. This
includes Schedule I drugs “opium”, “opium poppy” and “concentrate of poppy straw” which
definitions are the same as those in the Convention.11
The manufacturing of a drug “consists of the carrying out of any process by which the drug
may be obtained, and includes the refining of a drug and the transformation of one drug into
another drug” but does not include the separation of opium from the plant from which it is
obtained.12
Commonwealth Licensing
The Commonwealth fulfils its Convention obligations by a legislative system of licensing and
permits.
A person or organisation who wishes to manufacture a drug must apply to the Minister of
Health and Ageing for a licence to do so.13 In addition, that licensed manufacturer must also
obtain a permit to manufacture drugs in regulated quantities.14 The granting of a permit is
discretionary.
Further legislative controls give power to the Chief Executive Officer of Customs to direct
manufacturers to control and regulate the entry and departure of persons and vehicles from
licensed premises.15 Additionally, manufacturers and wholesale dealers are required to
keep records and furnish reports to the Government16 and make their premises available for
inspection by Government officers.17
Part II deals with licensing of manufacturers. Sections 9 through 14A.
9 Licence to manufacture
(1) A person who manufactures, or proposes to manufacture, a drug at any premises may
apply to the Minister for a licence to manufacture that drug at those premises.
(2) The Minister may require a person who applies for a licence under this section to furnish
to the Minister, or to another person specified by the Minister, such information as the
Minister considers necessary.
(3) Where a person applies for a licence under this section, the Minister shall grant the
licence to him or her unless:
(a) the applicant has failed to furnish any information that he or she has been required to
furnish under the last preceding subsection;
11
S.4(1) Narcotic Drugs Act 1967 (Cth)
S.4(2) Narcotic Drugs Act 1967 (Cth)
13
S.9 Narcotic Drugs Act 1967 (Cth)
14
S.11 Narcotic Drugs Act 1967 (Cth)
15
S.12 Narcotic Drugs Act 1967 (Cth)
16
S.23 Narcotic Drugs Act 1967 (Cth)
17
S.24 Narcotic Drugs Act 1967 (Cth)
12
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Appendix 4
(b) the Minister is not satisfied that the applicant manufactures, or proposes to
manufacture, the drug specified in the application at the premises so specified; or
(c) the Minister is of the opinion that the grant of the licence would not be consistent with
the obligations of the Commonwealth under the Convention.
(4) The Minister may specify in the licence such conditions applicable to the licence as he or
she determines.
(5) In this section, Minister means the Health Minister.
10 Revocation of licences
(1) The Minister may revoke a manufacturer’s licence if:
(a) the holder of the licence does not commence to manufacture, or ceases to manufacture,
the drug specified in the licence at the premises so specified;
(b) the holder of the licence has failed to comply with a condition specified in the licence;
(c) the holder of the licence has been convicted of an offence against this Act;
(d) the Minister is of the opinion that it would be inconsistent with the obligations of the
Commonwealth under the Convention for the licence to continue in force; or
(e) the holder of the licence requests the Minister to revoke the licence.
(2) In this section, Minister means the Health Minister.
11 Permits to manufacture
(1) The Secretary may from time to time grant to the holder of a manufacturer’s licence a
permit to manufacture the drug to which the licence relates during such period as is
specified in the permit.
(2) The Secretary may specify in a permit:
(a) the maximum quantity of the drug to which the permit relates that may be
manufactured by the licensed manufacturer at the premises to which the permit relates
during the period to which the permit relates; and
(b) the maximum quantity of the drug to which the permit relates that, in the opinion of the
Secretary, having regard to the prevailing market conditions, it is necessary for the licensed
manufacturer to have in his or her possession at any time during the period to which the
permit relates for the normal conduct of business.
12 Directions with respect to security of premises and handling of narcotic materials
(1) The CEO may, by notice in writing served on a licensed manufacturer:
(a) direct him or her to take specified measures for regulating and controlling:
(i) the entry of persons or vehicles into, or the departure of persons or vehicles from, the
licensed premises or a specified part of the licensed premises; or
(ii) the entry of persons or vehicles into, or the departure of persons or vehicles from, a
specified part of the licensed premises from or into another part of the licensed premises;
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Appendix 4
(b) direct him or her to take specified measures for preventing:
(i) the entry of persons or vehicles into, or the departure of persons or vehicles from, the
licensed premises; or
(ii) the entry of persons or vehicles into, or the departure of persons or vehicles from, a
specified part of the licensed premises from or into another part of the licensed premises;
otherwise than at specified places; or
(c) give directions to him or her with respect to the handling, otherwise than upon the
licensed premises, of narcotic materials in his or her possession or control.
(2) A direction under this section in relation to the handling of narcotic materials may be
given in respect of narcotic materials generally, in respect of a narcotic material of a kind
specified in the direction or in respect of such particular narcotic materials as are specified
in the direction.
(3) In this section:
licensed premises, in relation to a licensed manufacturer, means the premises at which the
licensed manufacturer is, under this Act, licensed to manufacture a drug.
narcotic material means a drug, a narcotic preparation or a substance, whether natural or
synthetic, that is used in the manufacture of a drug.
13 Directions with respect to manufacturing and labelling of drugs
(1) The Secretary may, by notice in writing served on a licensed manufacturer, give
directions to him or her with respect to:
(a) operations connected with the manufacturing of drugs; or
(b) the labelling of drugs manufactured by him or her.
(2) A direction under this section may be given in respect of the labelling of drugs generally
or in respect of a drug of a kind specified in the direction.
(3) In this section, drug includes narcotic preparation.
14 Directions inconsistent with condition of licence
Where a direction given to a licensed manufacturer under either of the last two preceding
sections is inconsistent with a condition specified in his or her licence, the condition is, to
the extent of the inconsistency, of no effect.
14A Review of certain decisions by Administrative Appeals Tribunal
(1) Application may be made to the Administrative Appeals Tribunal for review of:
(a) a refusal by the Health Minister to grant a licence to manufacture a particular drug at
particular premises to a person who made application under section 9 for such a licence;
(b) a specification by the Health Minister, under section 9, of particular conditions in a
licence granted under that section;
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Appendix 4
(c) a revocation by the Health Minister, under section 10, of a licence granted under section
9;
(d) a direction given by the CEO under section 12; or
(e) a direction given by the Secretary under section 13.
Standardisation of Scheduled Drugs
The Poisons Standard, or SUSMP 18 , is a Commonwealth Legislative Instrument which
classifies medicines and poisons into Schedules for inclusion in the relevant legislation of the
States and Territories. The Poisons Standard promotes uniform scheduling of substances
throughout Australia.
The SUSMP is made with reference to INCB Yellow List.
Schedule 8 contains specified controlled drugs.19 The opium poppy and its derivatives are
controlled drugs.
Part 4 (containing the nine Schedules) and Appendix C (substances, other than those
included in Schedule 9, of such danger to health as to warrant prohibition of sale, supply
and use)of the Uniform Standard or SUSMP is adopted as the Tasmanian Poisons List for the
purposes of the Poisons Act 1971 (Tas). 20
Poppy straw was a Schedule 8 Narcotic Substance21 of the Poisons List Order 2001 (Tas) as
amended. That List22 had effect for the purposes of the Poisons Act 1971 (Tas) until 24 June
2012 when the Poisons (Adoption of Uniform Standard) Order 2012 came into effect
adopting the Uniform Standard.
18
The Standard for the Uniform Scheduling of Medicines and Poisons (the Standard), or SUSMP, is established
under section 52D of the Commonwealth Therapeutic Goods Act 1989. The current edition is SUSMP No.3
formally known as Commonwealth Poisons Standard 2012.
19
Commonwealth Poisons Standard 2012: controlled drugs - substances which should be available for use but
require restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse and
physical or psychological dependence.
20
Poisons Act 1971 (Tas) s.14; Poisons (Adoption of Uniform Standard) Order 2012 (S.R. 2012, No. 55)
21
8053 Opium, except the alkaloids –
(a) noscapine in Schedule 2; and
(b) papeverine when included in Schedule 2 or 4.
8065
Poppy Straw, concentrate of, being the material arising when poppy straw has entered into a process
for concentration on its alkaloids.
22
Made pursuant to section 15 of the Poisons Act 1971, that section repealed by No 7 of 2012 applied 1 July
2012.
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Appendix 4
Schedule 8 substances are those substances which should be available for use but require
restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse
and physical or psychological dependence.
Concentrate of Poppy Straw (the material arising when poppy straw has entered into a
process for concentration of its alkaloids) is a Schedule 8 substance.
State
Responsibility for legislating the regulation, control, and prohibition of the importation,
making, refining, preparation, sale, supply, use, possession, and prescription of certain
substances and plants lies with the state. In Tasmania, this legislative power is found within
the Poisons Act 1971 (Tas).
The possession of prohibited plants, such as the opium poppy, is prohibited except under
licence.23
Similarly, the possession of narcotic substances is prohibited except under licence or
authorisation.24 A narcotic substance is one that is specified in Schedule 8 of the Poisons
List.
Licences to grow are granted at the discretion of the state Health Minister under section 52
of the Poisons Act 1971 (Tas). Licences to manufacture are granted by the Commonwealth
under the Narcotics Act 1967 but also by the state under the Poisons Act 1971 (Tas).
Additionally, there is duplication at both the Commonwealth and state level in the added
requirement for manufacturing permits as to quantity and type of drugs that may be
produced.
Commonwealth legislation only regulates the manufacturer of a narcotic drugs, not the
grower.
Poppy Advisory and Control Board
The Poppy Advisory and Control Board (PACB) is established under section 59H(1) of the
Poisons Act 1971 (Tas.). It is administered by the Minister of Justice/Attorney General under
the Tasmanian Department of Justice.25
Interestingly, the PACB was only established as a statutory body in 2008. 26 Up until this
time, the Board appeared to have existed as a group of people known as the Poppy Advisory
Control Board ("the Board"):
23
Poisons Act 1971 (Tas) s.49
Poisons Act 1971 (Tas) s.48
25
Schedule I, Part 3, Administrative Arrangements Order 2012 (Tas) made under the Administrative
Arrangements Act 1990 (Tas).
24
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Appendix 4
"The [Board] is simply an administrative arm of Government. It has no statutory existence,
nor any formal role in the issue of licences under the
Poisons Act 1971, but it oversees for practical purposes the development and control of
Tasmania's poppy industry." 27
Section 24 of the Act empowered (and still empowers) the Minister to delegate his or her
powers duties and functions under the Act to the Secretary or a State Service officer or State
Service employee. In this way, prior to 2008, the discretion to grant a licence under section
53 was delegated to a State Service employee.
Membership of PACB
Subsection 59H(2) provides that the Board consist of the following members:
(a) a person appointed by the Minister who is to be the chairperson of the Board;
(b) the Secretary of the Department of Health and Human Services in relation to the Public
Health Act 1997 or a person nominated by that Secretary;
(c) the Commissioner of Police or a person nominated by the Commissioner;
(d) the Secretary of the Department of Primary Industries Parks Wildlife and Environment in
relation to the Agricultural and Veterinary Chemicals (Tasmania) Act 1994 or a person
nominated by that Secretary;
(e) a person nominated by the Secretary of the responsible Commonwealth department in
relation to the grant of licences to manufacture drugs under Part II of the Narcotic Drugs Act
1967 of the Commonwealth.
Subsection 59H(3) provides that a nomination referred to above –
(a) may be for an indefinite period or a period specified in writing by the Secretary; and
(b) may be in respect of all matters relating to the Board or any specified matters; and
(c) is revocable at will.
Subsection 59H(4) provides:
A person nominated under subsection (2), while acting as a nominee and in accordance with
the terms of his or her appointment, is taken to be a member of the Board with all the
powers, rights and functions of such a member.
26
Poisons Amendment (Poppy Advisory and Control Board) Act 2008 (No. 39 of 2008). Its creation appears to
be as a result of a Judicial Review application challenging a decision to not grant a licence to grow poppies
under section 52 of the Act: Keach v Minister for Health and Human Services [2006] TASSC 28. The challenge
was unsuccessful.
27
Keach at para 4
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Appendix 4
S.59H(5) Schedule 1 has effect with respect to membership of the Board.
S.59H(6) Schedule 2has effect with respect to meetings of the Board.
Clause 3(1) of Schedule 2 provides that the quorum at any duly convened meeting of the
Board is 3 members.
Clause 5 makes provision for disclosures of interest28
Functions of the PACB
The functions of the Board are defined within section 59I as follows:
(a) to act in any matter relating to the alkaloid poppy industry as may be directed by the
Secretary of the Department of Justice;
(b) to receive, consider and determine production estimates for the contract growing and
harvesting of alkaloid poppy material;
(c) to liaise with the Commonwealth in order to fulfil Australia’s obligations under the
Convention;
(d) to ensure the security of Tasmanian alkaloid poppy crops;
(e) to collect and collate statistical information relating to the alkaloid poppy industry and
prepare reports on the industry;
(f) to facilitate the destruction of any alkaloid poppies grown without the authority of a
licence or other authority issued or granted under this Act;
(g) to advise the Health Minister and the Justice Minister on any matter relating to the
alkaloid poppy industry;
(h) to do anything, and provide such other advice to other Ministers, as may be requested
by those Ministers.
28
(1) A member who has a direct or indirect pecuniary interest in a matter being considered or about to be
considered by the Board must, as soon as practicable after the relevant facts come to the knowledge of the
member, disclose the nature of that interest at a meeting of the Board.
(2) A disclosure under subclause (1) is to be recorded in the minutes and the member must not, unless the
Board exclusive of that member determines otherwise –
(a) be present during any deliberations of the Board in relation to that matter; or
(b) take part in any decision of the Board in relation to that matter.
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59J. Powers of Board
The Board may do all things necessary or convenient to be done for or in connection with,
or incidental to, the performance of its functions under this or any other Act.
59K. Delegation
The Board may delegate any of its functions and powers, other than this power of
delegation, to a specified person or the holder of a specified office.
59L. Annual report
(1) The Board, not later than 31 August after the end of each financial year, is to give the
Minister a report on its operations for that financial year.
(2) The Minister may, in writing, direct the Board to prepare the report in a particular way or
to include particular information in the report.
(3) The report may be appended to the annual report of the Department.
(4) If the Board's report is not appended to the annual report of the Department, the
Minister is to cause the report to be laid before each House of Parliament by not later than
31 October after the end of the financial year to which it relates.
59M. Secretarial and administrative support
(1) Subject to and in accordance with the State Service Act 2000, persons may be appointed
or employed for the purpose of enabling the functions of the Board under this Part to be
carried out.
(2) The Board may make arrangements with the Secretary of the Department for such State
Service officers and State Service employees employed in the Department as may be
considered necessary to be made available to enable the Board to perform the functions of
office under this or any other Act and those officers and employees, in conjunction with
State Service employment, are to serve the Board in any capacity.
59G. Interpretation
In this Part VB, unless the contrary intention appears –
alkaloid poppy means a plant of the species Papaver somniferum or Papaver bracteatum;
alkaloid poppy material means a part or product of an alkaloid poppy;
Board means the Poppy Advisory and Control Board established under section 59H(1);
Convention means the 1961 Single Convention on Narcotic Drugs published by the United
Nations, as amended from time to time;
cultivate includes harvest;
Department means the responsible Department in relation to this Part [Justice];
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manufacture includes refine and process and anything done for the purpose of refining or
processing;
meeting means a meeting of the Board;
member means a member of the Board;
Minister means the Minister having the administration of this Part [Justice];
process means to treat by mechanical, chemical or other artificial means but does not
include harvesting.
Licence to grow or cultivate a prohibited plant in Tasmania
The opium poppy is a prohibited plant.
A person shall not grow or cultivate a prohibited plant, except under and in accordance with
a licence granted or deemed to have been granted by the Health Minister under Part V of
the Poisons Act 1971 (Tas) and in accordance with the conditions and restrictions specified
in the licence.29
Sale and supply of narcotic substances and prohibited plants
A person shall not sell or supply a prohibited plant to another person except where that
person holds a section 52 licence and sells or supplies to a licensed manufacturer.30
Minister's discretion to grant or refuse licences
The grant or refusal of a licence lies in the discretion of the Health Minister.31 In practice, it
would appear that such licence applications are referred to the PACB under authority of the
Minister as a function of the Board.
There is no apparent right of appeal or review of the refusal of a licence or the imposition of
conditions. However, such a decision is administrative in nature and reviewable under the
Judicial Review Act 2000 (Tas).
Licensing of manufacturing chemists
The Health Minister has a discretionary power to grant a licence to carry on business as a
manufacturing chemist.32 Such a licence may be subject to conditions and restrictions as
determined by the Minister and as are specified in the licence or notified to the licence
holder.33
29
Poisons Act 1971 (Tas) s.52 Criminal penalties apply for contravention.
Poisons Act 1971 (Tas) s. 47(3) and (4)
31
Poisons Act 1971 (Tas) s.53
32
Poisons Act 1971 (Tas) s.16(1)(a)
33
Poisons Act 1971 (Tas) s.16(2)(b)
30
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Appendix 4
The licence application requires the following information:
Full name of the applicant (or the responsible officer of a company)
Place at which he proposes to carry on business
The licence is remains in force for a period of 12 months but may be renewed annually upon
application. A fee is payable for the licence.
Refusal of licences and renewals thereof
The Minister has a discretion to refuse an application for a manufacturer’s licence or a
renewal of a licence granted under section 16 if that person has been or is convicted of an
offence against the Poisons Act 1971 of such a nature that having regard to all the of the
circumstances of the case it would be contrary to the public interest if that person were
granted such a licence or such licence granted to him were to continue in force.34
Licence to manufacture narcotic substances
A person shall not make, refine, or prepare a narcotic substance unless he is, or is acting as
the servant and under the orders of, a person who is the holder of a licence to manufacture
such a substance granted under this Part and, if so required under the Narcotic Drugs Act
1967 of the Commonwealth, is also the holder of a licence under that Act.35
Section 9 of the Narcotic Drugs Act also provides for the application of a licence to
manufacture a drug. Such application is made to the Commonwealth Minister of Health and
Ageing.
Under section 11 of that Act, the Secretary of the Department of Health and Ageing may
grant the holder of a manufacturing licence a permit to manufacture drugs in regulated
quantities.
Licence to import raw narcotic or narcotic substance into Tasmania
A person must not import or bring into the State a raw narcotic or narcotic substance unless
the person is the holder of a licence granted by the Health Minister under Part V the Poisons
Act 1971 (Tas), acting in accordance with the terms of that licence. Criminal penalties for
contravention.36
34
Poisons Act 1971 (Tas) s.17
Poisons Act 1971 (Tas) s.46
36
Poisons Act 1971 (Tas) s.45
35
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Appendix 4
Summary
Tasmania does not produce opium as defined by Article 23 of the Convention but produces
poppy straw which is dealt with in Article 25.
The Commonwealth and the state have legislative powers with respect to the manufacture
of narcotics. The Commonwealth has implemented the Convention obligations by
legislation.
However, as a result of a 1971 agreement between the Commonwealth and Tasmania it was
agreed that Tasmania would be the only location in Australia where poppy straw would be
grown. Other than legislating as to manufacturing and import/export matters, the
Commonwealth effectively left any specifics up to the state to legislate. Tasmania enacted
the Poisons Act 1971.
Tasmanian growers do not grow opium poppies to produce opium. They grow the poppies
to produce poppy straw from which alkaloids are extracted for the manufacture of
narcotics.
The manufacturers are engaged with the growers before the plant is put in the ground as to
how much is grown. Whilst there are no international convention obligation to do so,
Tasmania chooses to licence the growers under a tight legislative regime in order to prevent
diversion into the illicit market, and to limit access to the crop and to warn the community
of its dangers to prevent harm.
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Appendix 5
GROWERS LICENCE - INFORMATION REQUIREMENTS
There is a licence application form for growers titled ‘Application for Licence to Grow
Papaver Somniferum. The form is headed ‘Poisons Act (1971).
The information required is comprehensive. In terms of the person involved, it requires
information as follows –










Processor Company Name
Region of the State
Agreement (with the Processor) number
Trading name of the business
ABN
Type of operation (sole trader, share farmer, partnership, family trust, company)
If company, registered name and address
Details of applicant for licence (usual name and address details and contact number)
including date of birth and positions in the business eg Director or partner etc
Details of the person responsible for managing the proposed crop (similar to that
required of the applicant) if a person different to the applicant
Details of other interested parties with the main interest identified including
Company Member, Partner, Share Farmer, Employee working with the crop,
receiving a financial return and any other specified.
In terms of the crop details, the information required is –




A farm plan showing the location of the proposed poppy paddocks
The proposed area to be sown in hectares
Details of the processor company field officer
The details the property name, address, town, the property owner, the paddock
name, whether the crop is a roadside crop, the map reference number, GPS map
reference and the area in hectares of each paddock.
The application form also –


Requires a signed and witnessed declaration by the applicant, that to their best
knowledge and belief, the information in the application is true and correct in every
particular
Contains a warning that under s.56(1)(c) of the Act there can be a fine or
imprisonment or both for making a false or misleading statement
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Appendix 5

Notes that a check may be made of any court convictions, particularly in respect of
drug related matters, of all persons who are identified on the form.
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Appendix 6
GROWING ADDITIONAL CROPS OR CROPS ON A DIFFERENT LOCATION
- INFORMATION REQUIREMENTS
An application form, headed Poisons Act (1971) Tasmania, exists if a grower wishes to grow
additional hectares or seeks to use replacement paddocks.
The application form contains the following –




Current licence details – the number, agreement number and processor name
Licensee trading name
Paddock details as per the application form with identification of replacement
paddocks or additional hectares to be grown on existing paddocks
Additional hectare details – the current number of licensed hectares, the number of
additional hectares, new total licensed hectares (presumably applied for) and the
crop type.
If there are additional hectares sought by the application, a witnessed declaration the same
as for the application form is required. But the form indicates that ‘Replacement paddocks
with no change to licensed hectares do not require a signature’. This presumably means that
the form doesn’t need to be signed, which is somewhat unusual. Perhaps the intention is
that there is not the need for a witnessed declaration if there is no change to the existing
licensed hectares.
The form contains the same false and misleading statement warning and the possible court
convictions check for all persons identified on the original application form.
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Appendix 7
CROP LOCATION - SECURITY ASSESSMENT CRITERIA
In addition to the usual grower identification and contact details, a crop location security
assessment includes the following considerations –










names of persons living on the property
satisfactory farm plan check
paddock name
map reference
main boundary – internal block or highway
crop boundary – internal block, vehicular track, minor road, secondary road or
highway
distance to residences
obstacles to accessing the crop
fence quality
level of security risk
The security assessment also includes a record of any previous interference with a crop.
Page 73 of 79
Appendix 8
GROWERS LICENCES – SPECIFIC REGULATORY CONTROLS
Growers licences contain the following obligations.

written agreement with a processor to take possession of crop immediately on
harvest required, and copy provided to the Board

specification of the plant that can be grown

requirement that the plant grown must be from seed supplied by the processor

crops grown on properties or in paddocks are to be fenced to an acceptable standard
(Minister determines standard)

specification of the period in which growing can take place (Minister may determine
other dates)

specification of the last delivery date of the crop to the processor (Minister may
extend)

after harvest, poppy material on the land to be destroyed within 7 days and
specification of the manner of destruction by burning slashing or cultivating (or other
ways specified by the Minister)

requirement to destroy the crop if the processor decides not to harvest it, (by a date
and in a manner specified by the Minister)

obligation to notify the Board Chairman and Tasmania Police of any loss or damage
to the crop however and whenever occurring

requirement to allow right of entry to inspectors authorised under the Act at any
time to land on which the crop is grown and harvested to conduct examinations tests
etc

regrowth of poppies from seed from any previous years is to be destroyed by
spraying or cultivating (or in such other manner as the Minister directs)

Page 74 of 79
Appendix 8

need to take reasonable steps to ensure livestock not exposed to plants, stubble or
crop regrowth and if it occurs to withhold stock from sale for a minimum of 3 weeks

taking reasonable steps to ensure that the processor notifies the Minister of the
following –




place where seeds are planted and number of acres or hectares
planted within 14 days of planting
all the crop has been harvested and the date of completion within 21
days
date of the delivery of the crop to the processor
weight of the crop delivered.
Page 75 of 79
Appendix 9
PROCESSORS LICENCES – SPECIFIC REGULATORY CONTROLS
Processor licences contain the following obligations.

specification of the substances that can be made and refined for sale on the
premises (substances with are controlled under the Act)

list of authorised activities (possession of poppy straw, manufacture of narcotic
substances, sale and supply of substances, undertaking experimental activities)

specification of the maximum quantities (in kilograms) of narcotic substances able to
manufactured and possessed at any time

participation in growing and cultivation of poppies (includes specification of the plant
to be grown) and purchase of materials subject to –
 contract or cultivation area does not exceed an area approved by the Board
 weekly report to the Board of area sown for each contracted grower
 reports on the quantities harvested on behalf of each grower as soon as
practicable but no later than 14 days after harvest
 report on the loss or failure of a crop within one week of the decision that
there is a loss or failure and why
 advice on increases of agreed original areas licensed to grow prior to sowing
the area

specification of who to be involved in management

advice to the Chair of the Board on proposed changes of senior management or
independent contractors, who at the discretion of the Chair, may require a criminal
history check

requirement for security system that prevents removal of substances from licensed
premises

requirement for a security audit every 3 years

requirement for a physical security barrier that prevents entry to the licensed
premises
Page 76 of 79
Appendix 9

requirement that persons admitted the premises are not a security risk

maintenance of records of all visitors to the premises by persons who are not officers
or employees (including their address and organisation details)

issue of identity passes and the areas of the premises able to be accessed

the need to accompany non security cleared persons while on the premises

requirement for identity checks for potential employees and contractors and
criminal history checks and other relevant personal information, including statutory
declarations on no drug use, or current or past drug use

issue of identification instruments to staff members including areas able to be
accessed in the premises

a program of searches of employees and visitors, establishment of an alcohol and
drug policy for the workplace, and undertaking a program of random drug screens

requirement for a completed statutory declaration by potential employees on
current or past drug use

requirement that employees do not have narcotic substances in their possession
except in the course of their duties

requirement to ensure comprehensive and detailed records and registers on all
narcotic and prohibited plants and substances including at raw material,
intermediate material, waste and by-product stages

requirement that records be made within 24 hours and retained for 7 years from the
date of last entry, to be produced on demand to inspectors

obligation to ensure no loss of material during transport to or from licenced
premises

independent transport contractors who are to transport narcotic materials are to be
subject to a security clearance
Page 77 of 79
Appendix 9

obligation to immediately notify Tasmania Police, the Chief Pharmacist and the
Board in writing of any theft or loss or narcotic materials

prohibition on destroying unwanted narcotic materials unless under supervision of
an inspector

requirement to obtain approval for disposal of poppy straw residues.
Page 78 of 79
Appendix 10
CROP INTERFERENCE RECORDS
Interferences with crops are recorded in considerable detail. In addition to date and
estimated time when the interference took place or was recorded, and the detail of the
property of the owner, details are recorded on –





the actual location of the crop be it an internal paddock, a paddock on a secondary
road or a major road
the number of interferences in the crop
the number of capsules stolen
the stage of maturity of the crop, be it green, dry or semi dry
the interference details
PACB Inspectors co-operate closely with Tasmania Police to undertake security assessments
and to enable the investigation of the theft of poppy products.
Page 79 of 79