Chapter 7: Compliance and enforcement

One dimension of the ND Act is that it establishes a regulatory framework for medicinal cannabis. The ODC can be viewed in that setting as an Australian Government regulatory body. The ND Act contains a familiar range of regulatory functions and powers that are exercisable by the ODC under delegation from the Secretary of the department. They include powers to impose conditions on licences, investigate compliance by licence holders with those conditions and the requirements of the ND Act, enter premises, question people, gather information, issue directions, and vary and revoke licences. Those controls are reinforced by civil penalty and offence provisions in the ND Act.

There was little comment during this Review in submissions and consultations on the nature and breadth of those powers and how they are being exercised. There was general acceptance that the regulatory focus is important in the medicinal cannabis scheme, given Australia's overriding obligation to comply with the Single Convention. The Convention emphasises the need for tight government control on the cultivation and manufacture of cannabis as a narcotic drug that is susceptible to misuse and criminal enterprise.

There was frequent acknowledgement too in this Review that both the ODC and industry have worked constructively - separately and in collaboration - to ensure voluntary compliance with licence obligations and regulatory standards. That is typically branded as the central goal of effective regulation.

The regulatory framework is nevertheless a fundamental and lasting feature of the ND Act. At this early stage of the medicinal cannabis scheme, the primary emphasis has been on implementation and the grant of licences and permits. Circumstances may later require more assertive compliance enforcement activity and the exercise of regulatory powers that have been little used to date.

This chapter describes the regulatory framework in the ND Act, with some observations and recommendations. This is done to highlight the central place of the regulatory framework in the medicinal cannabis scheme. The principal recommendation at the end of the chapter is that the ODC develop and publish more extensive guidance than has been published to date on the ODC's regulatory approach and priorities.

Licence and permit conditions

The ND Act imposes several standard conditions on all licences granted under the ND Act. There is elaboration of some conditions in the ND Regulation.[177] Additional conditions can also be imposed individually on licences. Breach of a licence condition is a ground for revocation of the licence.[178]

The conditions imposed by the ND Act upon all licences include:

• the licence holder must inform persons who are authorised to engage in activities under the licence of the conditions that are relevant to them and of any directions under the ND Act[179]
• the licence holder must employ or engage suitable staff, such as adults who have not been convicted in the previous five years of a serious offence or a drug related offence and who have not used illicit drugs in that period[180]
• activities undertaken under the licence must be authorised by a permit[181]
• an authorised inspector can inspect the premises in which cultivation, production or manufacture is undertaken, and take samples[182]
• the licence holder must notify the Secretary, firstly, of any matter that may affect whether the licence holder or a business associate is a fit and proper person as required by the ND Act, secondly, of any breach of the licence, and thirdly, of any matter that is a ground for revocation of the licence.[183]

Additional conditions that may be imposed individually on licences and permits can deal with matters such as the activities authorised by the licence, handling of cannabis plants and products, description of cannabis products, waste disposal and destruction, documentation and record keeping, security and access to premises, sampling, auditing and reporting, compliance with codes of practice, contingency planning, engagement of staff and contractors, advertising in relation to cannabis products and insurance.[184]

Special conditions are also imposed on manufacture licences to reinforce the special licensing requirement in s 11K of the ND Act that the intended use of the drug to be manufactured is for research or a clinical trial relating to medicinal cannabis, or as a medicinal cannabis product that is supplied or is a registered good under the TG Act.[185]

One other regulatory requirement, though not expressed in the ND Act as a condition, operates in the same way. The Act requires that a licence specify matters such as the term of the licence, the name of the licence holder, the authorised activities, the premises at which they will be carried out, and 'the persons authorised by the licence to engage in activities authorised by the licence'.[186] The effect of that last stipulation is that a licence may contain as an annex a list of senior employees, and that any departure or arrival of a new senior employee will require a variation of the licence.

This Review examined the standard conditions that are imposed on medicinal cannabis and manufacture licences. The following observations can be made:

• There were 51 standard conditions - 24 in medicinal cannabis licences and 24 in manufacture licences.
• Roughly one-third (18) of those conditions are required by the ND Act to be imposed on licences; the other two-thirds are imposed on a discretionary basis.[187]
• As many as 22 of the standard conditions that are imposed in medicinal cannabis licences and in manufacture licence are framed in similar terms (14 are statutory conditions, and 8 imposed conditions). The result is that an entity that holds both types of licences may have duplicate obligations under both licences.
• Some conditions merely restate the overriding legal obligation of the licence holder to act in accordance with the ND Act, ND Regulation and licence and permit conditions.

Comment

Four recommendations are made below concerning licence conditions and their administration. The following can be said to explain those recommendations.

First, a relatively large number of conditions are currently imposed on licences. These are in addition to the numerous and specific requirements in the ND Act and ND Regulation that a licence holder is required to observe. The number and breadth of conditions can add to the compliance burden facing a licence holder, not least because a breach of a licence condition must be notified to the ODC and is a ground for suspension or revocation of the licence.

It is important, accordingly, that conditions are appropriately framed and imposed. The ODC should review the standard licence and permit conditions, with a view to imposing licence conditions only as required and that the conditions are appropriately framed. The imposition of conditions can be further streamlined if Recommendation 7 in Chapter 6 is implemented to establish a single licence structure.

Second, the ND Act provides that it is a condition of a licence that the licence holder takes reasonable steps not to employ or engage a person to carry out activities authorised by the licence if the person is in a class of persons prescribed in the ND Regulation.[188] Regulations 18 and 39 prescribe the following two classes of person who will not be regarded as suitable staff:

• 'persons who are undertaking, or who have undertaken, treatment for drug addiction'[189]
• 'the person has, during the [previous] 5 years … used illicit drugs'.[190]

Both conditions are more restrictive than the ND Act, which provides that a licence holder shall take reasonable steps not to employ a person convicted of a serious offence in the previous five years.[191] It is relevant too that the Secretary, in deciding whether a person is fit and proper to hold a licence under the Act, can decide to excuse the fact that the person has been convicted of a serious offence during the previous ten years.[192]

An additional difficulty with the first condition is that it operates as a permanent bar against employment and could be read as a deterrent to seeking treatment. This restriction could be deleted from regs 18 and 39 as those regulations already constrain the employment of those who have a drug addiction or have been convicted of a drug-related offence in the previous five years.

Third, the requirement in the ND Act (listed above) that a licence must contain the names of all authorised persons goes further than necessary. The requirement is ambiguous: one interpretation (which is less demanding) is that a licence must list senior staff of a licence holder who are responsible for supervising all activities authorised by the licence; but another interpretation (which is more far-reaching) is that all authorised persons in a facility be listed on a licence, with the added consequence that any change to the list be the subject of a licence variation application. The Act could be amended to include a more flexible requirement, for example, that the authorised persons to be listed in a licence will be specified in the ND Regulation.

Fourth, the notification requirement that is imposed as a standard condition on all licences can potentially operate in an unfairly prejudicial way to licence holders. Failure to comply with this condition is a ground for revocation.[193] Yet the circumstances in which notification is required may not be clear-cut - 'a matter that may affect whether the licence holder is a fit and proper person to hold the licence', 'a matter that may affect whether ... a business associate ... is a fit and proper person to be associated with the licence holder' and 'any other matter that may require or permit the Secretary to revoke the licence'.[194]

As a practical matter it would be in the interest of a licence holder to be diligently proactive in notifying matters of potential relevance to the ODC. In part, that is what the ND Act intends to bring about.

However, the ND Act does not directly address how the ODC is to respond to or deal with any notification. By implication, a notification may trigger the exercise by the ODC of its compliance and enforcement powers, such as the power to vary or revoke a licence, issue a direction to the licence holder, require information to be provided or to conduct an inspection.

The range of options available to the ODC - that can involve quite serious enforcement action - mean that it would be inappropriate to prescribe how and when the ODC is to respond following a notification. On the other hand, silence on the part of the ODC can place the licence holder in an uncertain position that is unfairly prejudicial. Questions that may go (unanswered) through the mind of the licence holder include whether the notification was adequate or unnecessary, whether other action is required regarding the matter that was notified, and whether there are similar matters that require notification.

An appropriate balance could be struck through the publication by the ODC of guidance on how notifications are dealt with and the procedure to be followed by a licence holder to gain clarity following a notification. The guidance should form part of the proposed regulatory guidance that is the subject of Recommendation 20 below.

Recommendation 13

The Office of Drug Control review the standard licence conditions that are imposed on medicinal cannabis, cannabis research and manufacture licences, to ensure that conditions are not imposed unnecessarily and that conditions are appropriately framed.

Recommendation 14

The Narcotic Drugs Regulation 2016, regulations 18 and 39 be amended:

• to delete the condition that a licence holder take reasonable steps not to employ a person who has sought treatment for drug addiction
• to amend the condition that a licence holder take reasonable steps not to employ a person who has used illicit drugs during the previous five years, by providing instead (in terms similar to sections 8H and 9G of the Narcotic Drugs Act 1967) that the Secretary may excuse reliance on that condition if the licence holder has taken reasonable steps to ascertain drug usage by employees and has disclosed any relevant knowledge to the Office of Drug Control.

Recommendation 15

Sections 8M(e), 9L(e) and 11N(e) of the Narcotic Drugs Act 1967 be amended to require that a licence specify the persons who are required by the Narcotic Drugs Regulation 2016 to be specified as persons who can engage in activities authorised by the licence.

Recommendation 16

The Office of Drug Control include guidance on the operation of the notification requirements in sections10K and 12N of the Narcotic Drugs Act 1967, when undertaking a review of the ODC publication, Guidance: Compliance, Enforcement and Inspections, as proposed in Recommendation 20.

The ND Act provides for the appointment of authorised inspectors to exercise the extensive range of regulatory enforcement powers listed in the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act).[195] These include powers of entry, inspection, search, seizure, monitoring, investigation and questioning. The powers can be exercised for the purposes of monitoring compliance with the offence and civil penalty and information gathering provisions of the ND Act. An authorised inspector may also issue an infringement notice, request and accept an enforceable undertaking, seek a civil penalty order, or apply for an injunction under the Regulatory Powers Act.

The ND Act confers a related power on authorised inspectors to enter licensed premises without consent or a warrant to monitor compliance with the ND Act.[196] It is also a condition imposed on licences that an authorised inspector can inspect the premises in which cultivation, production or manufacture is undertaken, and take samples.[197]

The practice implemented by the ODC is to undertake both planned and unannounced inspections of licensed premises. A planned inspection is ordinarily undertaken during the licence approval process, and the intention is to undertake at least one unannounced inspection of each licensee during each 12 month period. Inspections may also be undertaken for other purposes, such as monitoring site remediation and crop destruction. Twelve inspections were undertaken in 2018 (both announced and unannounced), and it is expected that more will be taken as more licences and permits are granted.

Comment

The ND Act appropriately provides for the exercise of the regulatory powers listed in the Regulatory Powers Act and the ND Act. The Regulatory Powers Act sets out the criteria and limitations on the exercise of the powers conferred by that Act. The exercise of these powers is subject to judicial scrutiny under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1904 (Cth).[198]

Information gathering powers

The ND Act confers information gathering powers that are exercisable in the consideration of licence and permit applications, and more generally in the administration of the ND Act. The powers include:

• requiring a licence applicant to allow inspection of the land or premises to which a licence application relates[199]
• requiring an applicant or licence holder to provide information or documents that are reasonably required for the administration of the ND Act[200]
• requesting information or documents relevant to a licence or permit from any source[201]
• requiring a State or Territory agency to provide relevant information or documents (subject to special restrictions applying to sensitive law enforcement information).[202]

Comment

It is appropriate that the ND Act includes those information gathering powers. They are an essential regulatory tool to ensure that officers administering the ND Act are fully and properly informed of all relevant matters, especially in deciding if licence applicants or holders are fit and proper to engage in cultivation, research or manufacture of cannabis products. It is equally important that the powers are exercised lawfully and reasonably having regard to the rights of those from whom information is being collected, often by compulsory direction.

To ensure that interests of that nature are properly balanced, the Administrative Review Council (ARC) adopted a set of twenty best-practice principles, described as 'a guide to government agencies, to ensure fair, efficient and effective use of coercive information-gathering powers'.[203] Matters covered in the principles include the 'trigger' threshold for the exercise of a coercive power, delegation of powers, training, notices, examinations, privilege and exchange of information with other agencies.

The ARC best-principles can provide appropriate guidance for the ODC in relation to the information gathering powers that are exercisable under the ND Act. The principles should be consulted and possibly referred to in the regulatory guidelines that are recommended later in this chapter.

Two specific issues regarding the information gathering powers also require noting. One issue concerns the way that s 14J of the ND Act has been used to request information from applicants during consideration of licence applications. This goes to the administration of the ND Act and is discussed in Chapter 9.

The other issue relates to the protection of information held by the Secretary (or regulator) that is 'sensitive law enforcement information'. The information gathering powers that are summarised above can be used by the regulator to require a Commonwealth, State or Territory law enforcement agency to provide information that may require special protection against disclosure. Disclosure may pose a risk of prejudicing Australia's law enforcement interests by, for example, disrupting law enforcement efforts, revealing law enforcement methods, endangering informants or witnesses or discouraging law enforcement agencies from sharing information with other agencies.

Disclosure that could pose those risks is defined by the ND Act as 'sensitive law enforcement information'.[204] It is protected in several ways: the information is not to be disclosed in the reasons explaining a decision that is reviewable (such as revocation of a licence);[205] if the information is to be relied upon in making a reviewable decision the giver of that information must first be consulted;[206] the natural justice hearing rule is displaced to the extent that it would otherwise require the disclosure of sensitive law enforcement information to a person;[207] it is an offence (subject to exceptions) to disclose sensitive law enforcement information that a person has obtained under the ND Act;[208] if a party commences proceedings in the AAT to review a decision made under the ND Act, the Secretary may apply to the Tribunal for an order to protect sensitive law enforcement information from being disclosed during the course of the proceedings.[209]

There is a question as to whether the provisions in the ND Act relating to the protection of sensitive law enforcement information in the course of AAT proceedings go far enough to ensure adequate protection. The extent of any protection may depend on the Secretary applying to the Tribunal to make an order and on the terms of an order the Tribunal is prepared to make. In deciding whether to make an order the Tribunal is required 'to take as the basis of its consideration the principle that it is desirable' that proceedings be held in public and that all evidence before the Tribunal is made available to the parties, and also to consider 'the confidential nature … of the information' to which an order may relate.[210]

It is a contested issue from time to time in court or tribunal proceedings as to whether an item of information that one party wishes to remain confidential should be disclosed in the proceedings. It is ultimately for the court or tribunal to rule on that matter. That is not to say that a law enforcement agency will not harbour a concern either that an item of information should not be disclosed in tribunal proceedings or that the AAT should be properly informed by a non-disclosure application and submissions before that can occur. There is a risk, arising from those possibilities, that a law enforcement agency will be disinclined to provide the ODC with information that would assist it in conducting extensive background checks on individuals involved in the medicinal cannabis industry.

The ND Act recognises and seeks to give effect to those considerations. In addition to the protection measures already mentioned, two other protections are that the head of a State or Territory law enforcement agency can decline to provide sensitive law enforcement information when required to do so;[211] and information that is known by the Secretary (or regulator) to be sensitive law enforcement information is to be identified as such.[212]

The current provisions were inserted into the ND Act in late 2016, in recognition of the special protection required for sensitive law enforcement information.[213] The Statement of Compatibility with Human Rights that accompanied the Narcotic Drugs Amendment Bill 2016 explained: 'These amendments to the ND Act are proposed to give law enforcement agencies confidence that they can share pertinent information and that it won't be released to the applicant or to third parties, thus protecting ongoing criminal investigations and investigation techniques'.[214] The Explanatory Memorandum for the amending Bill also noted: 'the amendments are designed to strike an appropriate balance between protecting law enforcement operations and intelligence and upholding administrative law principles and requirements'.[215] The same issue, of striking that balance, arises in many other regulatory schemes and the balance is generally struck in the same way.[216]

Any lingering concerns about the protection of sensitive law enforcement information are best taken up in consultation between the ODC and Commonwealth, State and Territory law enforcement agencies. A desirable option may be an administrative protocol requiring that law enforcement agencies are properly informed in advance of any relevant AAT proceedings so they can be consulted about a potential application or submission to the Tribunal. Equally, an administrative protocol can spell out the arrangements put in place to implement the requirement of the ND Act to identify sensitive law enforcement information that is held by the ODC.

Recommendation 17

The Office of Drug Control take account of the best practice principles on coercive information gathering powers published by the Administrative Review Council, when undertaking a review of the ODC publication, Guidance: Compliance, Enforcement and Inspections, as proposed in Recommendation 20.

Recommendation 18

The Office of Drug Control initiate discussion with Commonwealth, State and Territory law enforcement agencies:

• to ensure there is a shared understanding of the protections in the Narcotic Drugs Act 1967 for sensitive law enforcement information, and
• to ascertain if there is a need for an administrative protocol regarding the operation of those protections, especially as they apply to sensitive law enforcement information that may be provided to the Administrative Appeals Tribunal in proceedings before the Tribunal for the review of a decision under the Narcotic Drugs Act 1967.

Directions

A direction may be issued to a current or former licence holder on a range of issues. Failure to comply with a direction is both an offence and a civil penalty default.[217] Directions may:

• require a licence holder to take specified measures to ensure the security of land or licensed premises, and to control entry or departure thereon
• relate to the possession, control or handling of cannabis products
• relate generally to a licence or permit, as considered appropriate
• require the destruction of cannabis products that were cultivated, produced or manufactured in breach of a licence and/or
• relate generally to the manufacturing or labelling of drugs or narcotic preparations.[218]

Comment

It was noted above that the power to issue a direction relating to the destruction of cannabis products could be used to ensure consistency with destruction requirements applying under some State and Territory legislation.

There are grounds specified in the ND Act on which a licence or permit must be revoked, and grounds on which a licence or permit may be revoked. The grounds on which a licence or permit must be revoked are that the Secretary is satisfied on reasonable grounds that:

• the licence holder has engaged in conduct that constitutes a serious offence since the licence was granted
• the licence holder is no longer a fit and proper person to hold the licence, or
• a business associate is no longer fit and proper to be associated with the holder of the licence.[219]

The grounds on which a licence or permit may be revoked include that the Secretary is satisfied on reasonable grounds that:

• a condition of the licence has been breached
• the licence holder has engaged in conduct that is an offence against the ND Act
• false or misleading information was provided in support of the licence or permit application;
• a charge payable in respect of the licence is unpaid
• the premises or security arrangements applying to the licence or cannabis products are not suitable
• activities authorised by the licence have been undertaken at premises not covered by the licence or
• the licence holder has not provided information as required.[220]

The ND Act requires that written notice of a proposed revocation must be given to a licence holder, and that procedural fairness steps be followed.[221]

No revocation of a licence or permit has yet occurred.

The discretionary grounds for revocation can alternately be used as discretionary grounds for suspension of a licence or permit.[222] The procedure for suspension is spelt out in the ND Regulation. In summary:

• a licence holder shall ordinarily be given 20 business days' notice of a suspension decision, except that suspension can take place on the date of notification if the Secretary is satisfied on reasonable grounds that there is a risk that cannabis plants, cannabis or cannabis resin may be lost, diverted or stolen if the suspension does not take place immediately[223]
• the period of suspension must not be more than six months, but a lesser period can be specified[224]
• the notice of suspension can allow specified production to occur under the licence during the suspension[225]
• written notice of a proposed suspension must be given to a licence holder, and procedural fairness steps followed, unless the suspension is to operate immediately.[226]

Comment

The ND Act necessarily confers power to revoke and suspend licences and permits. The grounds for doing so are appropriately tied to the obligations the ND Act imposes on licence holders, as well as the regulatory risks the ND Act is directed at. There is a guarantee of procedural fairness as to the procedure to be followed if revocation or suspension action is initiated. That guarantee is legally enforceable, including by internal review under the ND Act and by judicial review under the ADJR Act and the Judiciary Act 1903 (Cth).

The revocation grounds could have greater practical relevance if two recommendations in Chapter 6 are accepted - that a procedure be included in the ND Act to enable a licence holder to apply for renewal of a licence; and renewal may be refused on a ground on which the Secretary must or may revoke a licence.

Only one change is recommended to the current revocation provisions in the ND Act. The third ground for mandatory revocation listed above - that a business associate is no longer fit and proper to be associated with a licence holder - should be made a discretionary ground of revocation. This ground, unlike the other two mandatory revocation grounds, does not relate to the conduct or integrity of the licence holder but to that of a third party, a business associate. There is also an element of imprecision in who is a 'business associate' - the term is defined as including both a person with a financial interest in the business who can exercise a 'significant interest' over the business, and a person who holds an 'executive position' in the business.[227]

It is more appropriate that the relationship of a business associate to a licence holder should be a discretionary factor in relation to the revocation of a licence.

Recommendation 19

Sections 10P and 13B of the Narcotic Drugs Act 1967 be amended to provide that the relationship between a business associate and a licence holder is a discretionary ground for the revocation of a licence (subsections 10P(2) and 13B(2)) and not a mandatory ground for revocation (subsections 10P(1) and 13B(1)).

The ND Act imposes a range of offences and civil penalties to ensure that licence holders comply with the requirements of the Act.

A licence holder commits an offence, and is liable to a civil penalty, by

• engaging in cultivation or production that is not authorised by a medicinal cannabis licence or cannabis research licence[228]
• breaching a condition of a medicinal cannabis licence that authorises cultivation[229] and/or
• breaching a condition of a medicinal cannabis licence that authorises production.[230]
• The Regulatory Powers Act also creates offences and imposes civil penalties upon people to whom regulatory action has been directed for failing to comply with some of the obligations imposed by that Act.[231]

Comment

No change is recommended to these provisions in the ND Act.

The compliance, enforcement and regulatory functions and powers in the ND Act are vitally important from several angles.

They underpin the central objective of the ND Act to ensure that Australia complies with its obligations under the Single Convention. Information gathered under the Act is needed to enable the Australian Government to report to the INCB. The effective administration of the regulatory functions provides a reassurance to the Australian Government and the community that the medicinal cannabis scheme is operating as intended.

The exercise of the compliance and enforcement powers can impose significant legal and commercial obligations on licence applicants and holders. Certainty and clarity about how the medicinal cannabis scheme will be administered is a shared expectation of all stakeholders.

Considerations of that kind lie behind the practice of some regulatory bodies of publishing comprehensive regulatory guidance on matters such as:

• the regulatory powers that can be exercised by the body
• the circumstances in which those powers may be exercised
• its approach to using those powers, especially the body's attitude to voluntary compliance, risk management and coercive action
• the regulatory goals and priorities of the body
• the procedural fairness principles that are followed when potentially adverse regulatory action is taken against a person
• that person's rights to question or challenge the regulatory action
• the mechanisms available for industry and stakeholder consultation as regards the body's regulatory approach and priorities.

Two examples of regulatory action guidance that exhibit those features are the TGA Regulatory Compliance Framework and the Office of the Australian Information Commissioner's Privacy Regulatory Action Policy.

The ODC took an early step in publishing a document, Guidance: Compliance, Enforcement and Inspections (October 2016). The document is largely descriptive of the ODC's regulatory enforcement powers.

Since publication of that guide, the ODC has gained significantly greater experience in regulatory strategy issues and when to exercise formal powers under the ND Act. There is also now a more established medicinal cannabis industry that has both a strong interest in the ODC's regulatory stance as well as experience to contribute in shaping a more comprehensive framework. This is evident from the submission to this Review from MCIA, which discusses regulatory issues.^[232] There is also a need, as discussed in Chapter 9, to articulate the ODC's risk management approach.

Overall, it is an appropriate time for the ODC to develop and publish more comprehensive regulatory guidance.

Recommendation 20

The Office of Drug Control review its publication, Guidance: Compliance, Enforcement and Inspections, with a view to developing and publishing more comprehensive and contemporary regulatory guidance. Public consultation be a part of this review.

•  
• [177] Eg, ND Regulation, ss 18, 19, 20.
• [178] ND Act, s 10P(2)(a).
• [179] ND Act, ss 10E, 12G.
• [180] ND Act, s 10F; ND Regulation reg 18(2); s 12H.
• [181] ND Act, ss 10G, 12J.
• [182] ND Act, ss 10H, 12K.
• [183] ND Act, ss 10K, 12N.
• [184] ND Act, ss 10D, 12F.
• [185] ND Act, ss 12L, 12M.
• [186] ND Act, ss 8M(e), 9L(e), 11N(e).
• [187] ND Act, ss 8K, 11L.
• [188] ND Act, ss 10F, 12H.
• [189] ND Regulation, reg 18(1)(a), 39(1)(a).
• [190] ND Regulation, reg 18(2)(a), 39(2)(a).
• [191] ND Act, ss 10F(1)(b), 12H(1)(d).
• [192] ND Act, ss 8G(8G(1)(b), 8H, 9F(1)(b), 9G.
• [193] ND Act, ss 10P(2)(a), 13B(2)(a).
• [194] ND Act, ss 10K(1)(a),(b), 12N(1)(a),(b).
• [195] ND Act, Chapter 4.
• [196] ND Act, s 14C.
• [197] ND Act, ss 10H, 12K.
• [198] As to overlapping nature of those administrative law review mechanisms, see Administrative Review Council, Federal Judicial Review in Australia, Report No 50 (2012).
• [199] ND Act, ss 8F(3), 9E(3), 11H(3).
• [200] ND Act, s 14J.
• [201] ND Act, s 14K.
• [202] ND Act, s 14L.
• [203] Administrative Review Council, The Coercive Information-gathering Powers of Government Agencies, Report No 48 (2008), p xi.
• [204] ND Act, s 4(1).
• [205] ND Act, ss 11(2)(aa) and (5); 13C(2)(aa) and (5); 15F(1)(b), (2)(e) and (2A); 15J(1)(b) and (4). See also s15N relating to the reasons required to be given if an application for review of a decision is made to the AAT.
• [206] ND Act, ss 15F(2A)(b), 15J(4)(b).
• [207] ND Act, s 21A.
• [208] ND Act, s 14MA.
• [209] The Tribunal can make a range of orders under the AAT Act, s 35, including an order that a private hearing be held, as to the persons who may be present during a private hearing, or restricting the publication of disclosure of evidence either generally or to a party.
• [210] AAT Act, s 35(5).
• [211] ND Act, s 14L(3A).
• [212] ND Act, s 14LA.
• [213] Narcotic Drugs Legislation Amendment Act 2016 (Cth).
• [214] Statement of Compatibility with Human Rights, Narcotic Drugs Legislation Amendment Bill 2016 (2016). The Statement also observed: 'The proposed amendments are designed to strike an appropriate balance between ensuring procedural fairness is accorded to the applicant and protecting sensitive law information from disclosure'.
• [215] Explanatory Memorandum, Narcotic Drugs Legislation Amendment Bill 2016 (2016), p 2-3.
• [216] See also Graham v Minister for Immigration and Border Protection [2017] HCA 33, in which the High Court held, for constitutional reasons, that a provision in the Migration Act 1958 (Cth) could not prevent disclosure of law enforcement information to a federal court for the purpose of reviewing a decision under that Act.
• [217] ND Act, s 15C.
• [218] ND Act, ss 14P, 15, 15A.
• [219] ND Act, ss 10P(1), 13B(1).
• [220] ND Act, ss 10P(2), 13B(2).
• [221] ND Act, ss 11, 13C.
• [222] The ND Act ss 11A and 13D provide that the regulations may make provision for suspension of licences or permits.
• [223] ND Regulation, reg 26(3).
• [224] ND Regulation, reg 26(4),(5)
• [225] ND Regulation, reg 27.
• [226] ND Regulation, reg 28.
• [227] ND Act, s 4(1).
• [228] ND Act, ss 11B, 11D.
• [229] ND Act, s 11C.
• [230] ND Act, s 11E.
• [231] See also ND Act, s 13N relating to civil penalties under the Regulatory Powers Act.
• [232] Submission from MCIA