Poisons Act 1971 (Tas)

Poisons Act 1971 An Act to make provision with respect to the regulation, control, and prohibition of the importation, making, refining, preparation, sale, supply, use, possession, and prescription of certain substances and plants and matters incidental thereto, and to repeal certain enactments [Royal Assent 14 December 1971] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title and commencement (1) This Act may be cited as the Poisons Act 1971 . (2) Subsection (1) of section 2 shall commence on the day on which Part III commences and subsection (2) of that section shall commence on the day on which Part V commences. (3) The remaining provisions of this Act (other than this section, Division 1 of Part II , and section 14 ) shall commence on such days respectively as are fixed by proclamation in relation to each of those provisions. 2. . . . . . . . . 3. Interpretation (1) In this Act, unless the contrary intention appears – aircraft includes a helicopter, a hovercraft, and an autogiro; 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; ambulance officer means an officer of the Ambulance Service as defined in the Ambulance Service Act 1982 ; ambulance services has the same meaning as in the Ambulance Service Act 1982 ; analysis, in relation to a substance, includes any bacteriological, biochemical, electrical, electrochemical, microscopical, pathological, or other examination or test of or applied to the substance; analyst means a person appointed as an analyst under section 19 , and includes the Government Analyst; authorised health professional means a person who is a member of a class of health professionals – (a) that is prescribed for the purposes of this definition; or (b) in respect of whom an order has been made under section 25D(1)(a) – except in section 36 and Parts V and VA in which case the authorised health professional must be present in Tasmania and acting in the course of the practice of his or her profession in Tasmania; authorised nurse practitioner means a nurse practitioner authorised under section 25B ; automatic machine means a machine or mechanical device that is used or capable of being used for the purpose of selling or supplying goods without the personal manipulation or attention of the seller or supplier or his employee or agent at the time of the sale or supply; Board means the Poppy Advisory and Control Board established under section 59H(1) ; boat includes a vessel or water craft of any description; coca leaves means the leaves of any plant of the genus erythroxylacae from which cocaine may be extracted either directly or by chemical transformation; Commissioner of Ambulance Services means the Commissioner as defined in the Ambulance Service Act 1982 ; container, used in relation to a substance, means a vessel, bottle, tube, capsule, tin, box, case, wrapper, cover, envelope, or other like receptacle that immediately contains the substance; court includes the Supreme Court or a judge, a magistrate, and 2 or more justices in petty session; dangerous poison means a substance that is, for the time being, specified in Schedule 7 to the Poisons List; dentist means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the dental profession as a dentist, except in section 36 and Parts V and VA in which case the dentist must be present in Tasmania and acting in the course of dental practice in Tasmania; domestic poison means a substance that is, for the time being, specified in Schedule 5 to the Poisons List; drug means a substance – (a) that is designed or intended for therapeutic use; or (b) the sole or principal use of which is, or ordinarily is, a therapeutic use or use as an ingredient or component in the preparation or manufacture of a substance for therapeutic use; drug-dependent person means a person who – (a) has acquired, as a result of the repeated administration of drugs of dependence, an overpowering desire for their continued administration; or (b) has a condition such that the cessation of the administration of a drug of dependence, or the inability to obtain such a drug, is likely to cause him or her to exhibit signs of mental or physical distress or disorder; or (c) exhibits drug-seeking behaviour that suggests impaired control as a result of the person's continued use of drugs of dependence; or (d) consumes or uses a drug of dependence contrary to the prescribing practitioner's instructions; drug of dependence means a substance listed in Schedule 8 or Schedule 9 to the Poisons List and includes any substance or class of substances that the Minister declares by order to be a drug of dependence but does not include any substance or class of substances that the Minister declares by order not to be a drug of dependence; drug-seeking behaviour has the meaning given by section 4 ; emergency order means an order made and in force under section 38J ; endorsed midwife means a midwife who is endorsed by the Nursing and Midwifery Board of Australia under section 94 of the Health Practitioner Regulation National Law (Tasmania) to prescribe scheduled substances; grow includes the following: (a) plant a seed, seedling or cutting; (b) graft, divide or transplant a plant; (c) nurture, tend, grow, cultivate or harvest a plant; hazardous poison means a substance that is, for the time being, specified in Schedule 1 to the Poisons List; improvement notice means an improvement notice issued and served under section 69AA ; Indian hemp means – (a) any plant or part of a plant of the genus cannabis; (b) the resin, whether crude or purified, obtained from any plant or part of a plant of the genus cannabis; or (c) any preparation containing any such resin – by whatever name that plant, part, resin, or preparation may be called, and includes the achene or seed of any such plant but does not include any fibre of any such plant from which the resin has been extracted; industrial or agricultural poison means a substance that is, for the time being, specified in Schedule 6 to the Poisons List; inspector means a person appointed and holding office under section 23 ; interstate ambulance officer means a person providing ambulance services in this State in accordance with an interstate arrangement within the meaning of section 38A of the Ambulance Service Act 1982 ; label includes a tag, brand, mark, or statement in writing on or attached to or used in connection with a container or package containing a scheduled substance, and labelled has a corresponding meaning; licence means a licence that is granted under this Act and is in force; licensed manufacturing chemist means a person who holds a subsisting licence under section 16 (1) (a) ; licensed wholesale chemist means a person who holds a subsisting licence under section 16 (1) (b) ; medical practitioner means a medical practitioner, except in section 36 and Parts V and VA in which case the medical practitioner must be present in Tasmania and acting in the course of medical practice in Tasmania; medicinal opium means raw opium that has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the British Pharmacopoeia, whether it is in the form of powder or is granulated or is in any other form, and whether it is or is not mixed with a neutral substance; medicinal poison means a substance that is, for the time being, specified in Schedule 2 to the Poisons List; midwife means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the midwifery profession; midwifery narcotic substance means a narcotic substance that is declared by the Minister, by order, to be a midwifery narcotic substance for the purposes of this Act; midwifery restricted substance means a restricted substance that is declared by the Minister, by order, to be a midwifery restricted substance for the purposes of this Act; monitored medicines means – (a) narcotic substances; and (b) substances that are prescribed to be monitored medicines; and (c) substances that are in a class of substances that are prescribed to be monitored medicines; monitored medicines database means the electronic database established and maintained under section 38B ; narcotic substance means a substance that is, for the time being, specified in Schedule 8 to the Poisons List; nurse practitioner means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the nursing profession who is endorsed by the Nursing and Midwifery Board of Australia to practise as a nurse practitioner, except in section 36 and Parts V and VA in which case the nurse practitioner must be present in Tasmania and acting in the course of nurse practitioner practice in Tasmania; package, used in relation to a substance, includes any means by which the substance may, for transport, for carriage, for storage, or for sale, be cased, covered, enclosed, contained, or packed; pharmacist means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the pharmacy profession but does not include a person who is a provisionally registered pharmacist, or who holds student or non-practising registration in that profession; poison means a substance that is, for the time being, specified in Schedules 1, 2, 3, 5, 6 or 7 to the Poisons List; poisons book means the poisons book as defined in section 28 ; Poisons List means Part 4 of the Uniform Standard adopted under section 14 , as amended in its application to Tasmania under that section from time to time; poppy grower's licence means a poppy grower's licence that is granted under section 54D and is in force; poppy research licence means a poppy research licence that is granted under section 54 and is in force; potent substance means a substance that is, for the time being, specified in Schedule 3 to the Poisons List; premises includes an area of land, a farm, and any part of premises; primary industries Minister means the Minister administering the Primary Industry Activities Protection Act 1995 ; prohibited plant means – (a) any alkaloid poppy; (b) coca leaves; (c) Indian hemp; and (d) any other plant or part of a plant that is declared by the Minister, by order, to be a prohibited plant for the purposes of this Act; prohibited substance means a substance or prohibited plant (other than Indian hemp) that is, for the time being, specified in Schedule 9 to the Poisons List; provisionally registered pharmacist means a person who holds provisional registration under the Health Practitioner Regulation National Law (Tasmania) in the pharmacy profession; public hospital means a hospital maintained and operated by or on behalf of the State; public institution means – (a) a State authority; (b) a public hospital; (c) the University of Tasmania; (d) TasTAFE, as continued by the TasTAFE (Skills and Training Business) Act 2021 ; and (e) (f) any other institution or establishment that is not carried on for private gain or reward and is declared by the Minister, by order, to be a public institution for the purposes of this Act; raw narcotic means – (a) raw opium; and (b) any other substance that is declared by the Minister, by order, to be a raw narcotic for the purposes of this Act; raw opium includes powdered or granulated opium but does not include medicinal opium; the regulations means regulations made and in force under this Act; responsible licensing authority, in relation to a licence or authorisation, means – (a) the Board, if an application for the grant or renewal of the licence may be made to the Board or the licence has been granted or renewed by the Board; or (b) the Minister, if an application for the grant or renewal of the licence or authorisation may be made to the Minister or the licence or authorisation has been granted or renewed by the Minister; or (c) the Secretary, if an application for the grant of the authorisation may be made to the Secretary or the authorisation has been granted by the Secretary; responsible officer, in relation to a licence, means the person who is appointed as the responsible officer in relation to the licence under section 12 ; restricted substance means a substance that is, for the time being, specified in Schedule 4 to the Poisons List; scheduled substance means a substance that is, for the time being, specified in any of the schedules to the Poisons List; Secretary means the Secretary of the Department; sell means sell, whether by wholesale or retail, and includes – (a) offer or expose for sale; (b) keep or have in possession for sale; (c) barter or exchange; (d) deal in or agree to sell; (e) send, forward, deliver, or receive for sale or on sale; and (f) authorise, direct, cause, permit, or suffer any of those acts or things to be done– and sale and sold have corresponding meanings; State authority means a person or body of persons constituted, established, or appointed under an Act or in the exercise of the prerogative rights of the Crown to administer or control any department, business, undertaking, or institution on behalf of the State; substance includes a preparation, an admixture, and a salt or derivative of a substance; supply, in relation to a substance, includes – (a) administer a substance, whether orally, subcutaneously, or by any other means; (b) dispense a substance on prescription; and (c) offer or agree to supply a substance; therapeutic use means a use for the purpose of or in connection with – (a) preventing, diagnosing, curing, or alleviating a disease, ailment, defect, or injury in persons or animals; (b) influencing, inhibiting, or modifying a physiological process in persons or animals; (c) testing the susceptibility of persons or animals to a disease or ailment; or (d) destroying or inhibiting micro-organisms that may be harmful to persons or animals; traffic includes keep or have in possession for trafficking, and trafficking has a corresponding meaning; treatment centre means a place that is approved under section 59AB as a treatment centre; Uniform Standard means – (a) the Standard for the Uniform Scheduling of Medicines and Poisons, of the Commonwealth, published by the Australian Government under the Therapeutic Goods Act 1989 of the Commonwealth; or (b) any similar standard published in substitution for that standard; or (c) if the standard, or a standard published in substitution for that standard, has been amended under that Act, that standard as so amended; vehicle means any mode of transport, other than an aircraft or a boat; veterinary surgeon means a registered veterinary surgeon as defined in the Veterinary Surgeons Act 1987 , except in section 36 and Parts V and VA in which case the veterinary surgeon must be present in Tasmania and acting in the course of veterinary practice in Tasmania;; volunteer ambulance officer has the same meaning as in the Ambulance Service Act 1982 ; wholesale dealing – (a) means the sale or supply by a wholesale dealer in the ordinary course of his business to persons authorised by or under this Act to be in possession of or to sell a scheduled substance; and (b) includes the sale or supply to other persons in wholesale quantities in the ordinary course of that business for use in a public institution or in connection with a prescribed profession, business, trade, or industry carried on by a person who requires any such substance for use, but not for resale, in connection with his profession, business, trade, or industry. (1A) In this Act, a reference to an analysis or examination of a plant is a reference to such an analysis or examination for the purpose of determining whether or not the plant is a prohibited plant. (2) In this Act – (a) a reference to a scheduled substance is a reference to the substance as specified in the Uniform Standard; and (b) a reference to a substance by reference to a Schedule of a particular number is taken to be a reference to the substance as specified in the Schedule of that number to the Poisons List. (3) Without restricting the generality of the expression "possession", a substance or plant shall, for the purposes of this Act, be deemed to be in the possession of a person so long as it is on any land or premises occupied by him or is enjoyed or controlled by him in any place or is in his order and disposition unless he proves that he had no knowledge of the substance or plant. (4) In this Act, the expression this Part includes the regulations made under or for the purposes of the Part of this Act in which the expression occurs. (5) For the purposes of the Poisons List or of any order made under section 14 a substance may be described– (a) by reference to any one or more of the following matters, namely: (i) the common or scientific name of the substance; (ii) any class of substances; (iii) the composition of the substance; (iv) the purposes for which the substance may be used; (v) the manner in which the substance is packed; (vi) such other factor or circumstance as may be specified in relation to the substance in the Poisons List or in any such order; or (b) in any other manner so specified. (6) In this Act, a reference to a Commonwealth Act cited by its short title includes a reference to that Act as amended from time to time and to any Commonwealth Act passed in substitution for that Act. (7) . . . . . . . . (8) The definition of prohibited substance substituted by section 4 of the Poisons Amendment Act 2013 is taken to have had effect on and from 1 July 2012. 3A. Matters to be taken into account in deciding whether a natural person is a fit and proper person (1) Without limiting the matters to which the responsible licensing authority may have regard in deciding whether a natural person is a fit and proper person to hold a licence, the responsible licensing authority may have regard to the following: (a) any conviction of the person for an indictable offence; (b) any civil penalty (however described) imposed upon the person under a law of the Commonwealth, a State or a Territory; (c) any revocation or suspension of a licence or permit (however described) held by the person under a law of the Commonwealth, a State, a Territory or another country, being a law relating to the prohibition or regulation of drugs; (d) the connections and associations that the person has with other persons (including but not limited to the person's relatives); (e) the person's previous business experience; (f) the capacity of the person to comply with conditions of the licence; (g) whether the person has a sound and stable financial background or is in financial circumstances that may significantly limit the person's capacity to comply with his or her obligations under a licence; (h) whether the person is of good repute, having regard to matters going to their character, honesty and professional and personal integrity; (i) the person's history of compliance with this Act. (2) Subsection (1)(d) , (e) , (g) and (h) does not apply in relation to a poppy research licence or a poppy grower's licence. 3B. Matters to be taken into account in deciding whether a body corporate is a fit and proper person (1) Without limiting the matters to which the responsible licensing authority may have regard in deciding whether a body corporate is a fit and proper person to hold a licence, the responsible licensing authority may have regard to the following: (a) any conviction of the body corporate for an offence against a law of the Commonwealth, a State or a Territory; (b) any civil penalty (however described) imposed upon the body corporate under a law of the Commonwealth, a State or a Territory; (c) if there is such a conviction or imposition of a civil penalty upon the body corporate – (i) whether the offence concerned was committed, or the conduct to which the civil penalty relates occurred, at a time when any person who is presently a director or officer of the body corporate was such a director or officer; and (ii) whether the offence concerned was committed, or the conduct to which the civil penalty relates occurred, at a time when any shareholder of the body corporate who is presently in a position to influence the management of the body corporate was such a shareholder; (d) any revocation or suspension of a licence or permit (however described) held by the body corporate under a law of the Commonwealth, a State, a Territory or another country, being a law relating to the prohibition or regulation of drugs; (e) whether a person who is, or is to be, the responsible officer in relation to the licence is a fit and proper person; (f) whether – (i) each director of the corporation is a fit and proper person; or (ii) more than 10% of the corporation is owned by a person who is not a fit and proper person; (g) the connections and associations that the body corporate, and its directors and officers, have with other persons (including but not limited to relatives of such directors and officers); (h) the previous business experience of the directors and officers of the body corporate, and of the shareholders of the body corporate who are presently in a position to influence the management of the body corporate; (i) whether the body corporate has a sound and stable financial background or is in financial circumstances that may significantly limit the capacity of the body corporate to comply with its obligations under a licence; (j) the capacity of the body corporate to meet the conditions of the licence; (k) whether the directors and officers of the body corporate are of good repute, having regard to matters going to their character, honesty and professional and personal integrity; (l) the body corporate's history of compliance with this Act. (2) Subsection (1)(g) , (h) , (i) and (k) does not apply in relation to a poppy research licence or a poppy grower's licence. 4. Meaning of drug-seeking behaviour For the purposes of this Act, a person is taken to exhibit drug-seeking behaviour in respect of a drug of dependence if there is reason to believe that – (a) he or she is seeking to obtain a drug of dependence for the purpose of selling or supplying it to another person; or (b) he or she is seeking to obtain a drug of dependence for a non-medical purpose; or (c) as a result of the administration to him or her of the drug, he or she exhibits – (i) impaired ability to manage properly the use of any such drug; or (ii) behaviour which suggests such impaired ability; or (d) failure to obtain drugs of dependence for a non-medical purpose is likely to cause the person to exhibit signs of mental or physical distress or disorder. 5. Construction of Act The provisions of this Act are in addition to, and not in derogation of, the provisions of – (a) the Health Practitioner Regulation National Law (Tasmania); (b) the Fertilizers Act 1993 ; (ba) . . . . . . . . (c) the Public Health Act 1997 ; and (ca) the Food Act 2003 ; and (d) the Agricultural and Veterinary Chemicals (Control of Use) Act 1995 – but the provisions of those Acts shall be read subject to the express provisions of this Act, and, where a provision of any of those Acts is inconsistent with a provision of this Act, the last-mentioned provision, to the extent of the inconsistency, prevails. PART 1A - General Provisions Relating to Licences 6. Applications for licences or renewal of licences (1) An application under this Act for a licence, or for the renewal of a licence, must – (a) except in the case of a licence referred to in section 16 , be in a form approved by the responsible licensing authority; and (b) except in the case of a poppy research licence or a poppy grower's licence, be accompanied by the prescribed fee, if any; and (c) contain the information, and be accompanied by the records, that the responsible licensing authority requires to determine the application. (2) An application under this Act for the renewal of a licence must be lodged not less than 30 days before the expiration of the licence. (3) Despite subsection (2) , the responsible licensing authority, in its discretion, may accept an application for the renewal of a licence lodged less than 30 days before the expiration of the licence. (4) If an application for renewal of a licence is lodged, or is accepted, under this section, the licence continues in force until the licence is renewed or the responsible licensing authority refuses to renew the licence. (5) The renewal of a licence takes effect, or is taken to have taken effect, from the date on which the licence was due to expire. 7. Investigation of application (1) On receipt of an application for a licence or the renewal of a licence, the responsible licensing authority may carry out the investigations and inquiries that the responsible licensing authority considers necessary to determine the application. (2) The responsible licensing authority may, by notice in writing to a person who has applied for a licence, or for the renewal of a licence, require the person to – (a) provide the information, and produce the records, that are relevant to the investigation of the application and are specified in the notice; and (b) provide the responsible licensing authority with the authorities and consents that the responsible licensing authority requires in order to obtain from other persons financial or other confidential information concerning the applicant. (3) Despite subsection (2) , a responsible licensing authority may not require a person who has applied for a poppy research licence or a poppy grower's licence, or for the renewal of such a licence, to – (a) provide information, or produce records, that relate to financial matters or the connections or associations that the person has with other persons; or (b) provide an authority or consent so as to enable the authority to obtain, from other persons, financial information concerning the person or information as to the connections or associations that the person has with other persons. (4) If a requirement made under this section is not complied with, the responsible licensing authority may refuse to determine the application. 8. Suitability of applicant (1) The responsible licensing authority must not grant a licence to a person, or renew a licence granted to a person, unless satisfied that the person is a fit and proper person to hold the licence. (2) The responsible licensing authority must not grant a licence to a person, or renew a licence granted to a person, if the responsible licensing authority must, under the regulations, refuse to grant or to renew, respectively, the licence. (3) The responsible licensing authority may refuse to grant to a person a licence, or to renew a licence granted to a person, if – (a) the person has been found guilty of an offence that, in the opinion of the responsible licensing authority, makes the person unsuitable to be involved in any activity authorised by, or associated with, the licence; or (b) the responsible licensing authority may, under the regulations, refuse to grant or to renew, respectively, the licence. (4) The regulations may make further provision for the circumstances in which the responsible licensing authority may refuse, or is required to refuse, to grant a licence to a person or to renew, or to refuse to renew, a licence granted to a person. (5) A relevant licensing authority is to give to the applicant for a licence or the renewal of a licence, written notice of the decision of the authority to grant or renew, or to refuse to grant or renew, the licence and, if the authority refuses to grant or to renew the licence, written reasons for the refusal. 9. Conditions and restrictions of licence (1) A responsible licensing authority may grant or renew a licence on the conditions and restrictions it thinks fit and specifies in the licence. (2) A licence granted or renewed under this Act is subject to – (a) the conditions and restrictions that are imposed on the licence by this Act or the regulations; and (b) the conditions and restrictions that are specified in the licence under subsection (1) at the time it is granted or renewed, or as varied at any other time under this section. (3) If the responsible licensing authority, either on receipt of an application for the renewal of a licence granted under this section or at any time while the licence is in force, considers it necessary or desirable in the public interest to do so, the authority may vary the conditions or restrictions to which the licence is subject under subsection (2)(b) – (a) by amending the existing conditions or restrictions; or (b) by substituting new conditions or restrictions for existing conditions or restrictions; or (c) by imposing additional conditions or restrictions; or (d) by amending a list or schedule of substances which forms part of those conditions or restrictions. (4) If the responsible licensing authority varies the conditions or restrictions of a licence as provided by subsection (3) , the authority is to do one of the following: (a) cause the licence to be appropriately amended to record the variation of the conditions or restrictions and to be re