40 Effect of certain representations
(1) A substance (not being a prohibited drug) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a prohibited drug or a specified prohibited drug shall, for the purposes of this Act and the regulations, be deemed to be a prohibited drug or the specified prohibited drug, as the case requires.(2) A growing plant (not being a prohibited plant) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a prohibited plant or a specified prohibited plant shall, for the purposes of this Act and the regulations, be deemed to be a prohibited plant or the specified prohibited plant, as the case requires.
(1) The onus of proving that a substance is fibre of cannabis leaf from which the resin has been extracted shall lie on the accused.(2) The onus of proving any act, matter or thing which is not rendered unlawful by virtue of section 10 (2), 11 (2), 12 (2), 13 (2), 14 (2), 23 (4) (b), 24 (4), 25 (4) or 35A shall lie on the accused.
41 Authorisation of Secretary of Department of Health
An authorisation under this Act of the Secretary of the Department of Health:(a) shall be in writing,(b) may be granted subject to such conditions as the Secretary thinks fit, and(c) may be revoked at any time by notice served on the person to whom it was granted or, if the Secretary thinks fit, by notice published in the Gazette.
41A Authorities for low-THC hemp not to be granted
The Director-General of the Department of Health is not authorised to grant an authority under section 10 (2) (b), 11C (2) (b), 23 (4) (b), 24 (4) (b), 25 (4) (b) or 25A (9) (b) in relation to low-THC hemp.
42 Certificate of Secretary of Department of Health prima facie evidence
In any legal proceedings under this Act, a certificate purporting to be signed by the Secretary of the Department of Health or by an officer of the Department of Health authorised generally or specially by the Secretary in that behalf to do so and to certify that any person is or is not a person who holds a licence, permit or authority under the Poisons and Therapeutic Goods Act 1966 shall, without proof of the signature or of the official character or authority of the person purporting to have signed the certificate, be prima facie evidence of the fact stated in the certificate.
(1) Any analyst analysing any plant or substance submitted to the analyst or under whose supervision the analysis of any plant or substance submitted to the analyst is carried out may give a certificate of the result of the analysis.(2) In any legal proceedings under this Act, the production of a certificate, purporting to be signed by an analyst, shall be prima facie evidence of the identity of the plant or substance analysed, the quantity or mass of the plant or substance analysed and of the result of the analysis, without proof of the signature, employment or appointment of the person appearing to have signed the certificate.(3) Any appointed person analysing any plant submitted to the person may give a certificate of the result of the analysis.(4) In any legal proceedings under this Act, the production of a certificate, purporting to be signed by an appointed person, is prima facie evidence of:(a) the identity of the plant analysed, and(b) the quantity or mass of that plant,without proof of the signature or appointment of the person appearing to have signed the certificate, but only if the plant identified is cannabis plant or cannabis leaf.(5) The Director-General of the Department of Industry and Investment may appoint a person to give certificates for the purposes of this section if the Director-General considers the person to be suitably qualified.(6) In this section:analyst means:
(a) any person employed by the Government of New South Wales as an analyst (including a person employed as an analyst in the NSW Health Service), and(b) any person who is an analyst within the meaning of the Poisons and Therapeutic Goods Act 1966, and(c) a person who:(i) is an analyst (however described) under a law of another State or Territory that corresponds to this Act, and(ii) is, or belongs to a class, prescribed by the regulations for the purposes of this definition.appointed person means a person appointed under subsection (5).
plant includes any part of a plant, and the achene and seed of a plant.
43A Liability of directors etc for offences by corporation—offences attracting executive liability
(1) For the purposes of this section, an executive liability offence is an offence against the regulations:(a) that is prescribed by the regulations as an offence to which this section applies, and(b) that is committed by a corporation.(2) A person commits an offence against this section if:(a) a corporation commits an executive liability offence, and(b) the person is:(i) a director of the corporation, or(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and(c) the person:(i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and(ii) fails to take all reasonable steps to prevent or stop the commission of that offence.Maximum penalty: The maximum penalty for the executive liability offence if committed by an individual.
(3) The prosecution bears the legal burden of proving the elements of the offence against this section.(4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.(5) This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.(6) This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.(7) In this section:director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.
reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:
(a) action towards:(i) assessing the corporation’s compliance with the provision creating the executive liability offence, and(ii) ensuring that the corporation arranged regular professional assessments of its compliance with the provision,(b) action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,(c) action towards ensuring that:(i) the plant, equipment and other resources, and(ii) the structures, work systems and other processes,relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(d) action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.
43B Liability of directors etc for offences by corporation—accessory to the commission of the offences
(1) For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence referred to in section 43A.(2) A person commits an offence against this section if:(a) a corporation commits a corporate offence, and(b) the person is:(i) a director of the corporation, or(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and(c) the person:(i) aids, abets, counsels or procures the commission of the corporate offence, or(ii) induces, whether by threats or promises or otherwise, the commission of the corporate offence, or(iii) conspires with others to effect the commission of the corporate offence, or(iv) is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.Maximum penalty: The maximum penalty for the corporate offence if committed by an individual.
(3) The prosecution bears the legal burden of proving the elements of the offence against this section.(4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.(5) This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.(6) This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.
The Governor may, from time to time, by regulation amend Schedule 1:(a) by adding the name or description of or relating to a prohibited plant or a substance and numbers and amounts relating to the prohibited plant or substance, or(b) by amending a name or description of or relating to a prohibited plant or prohibited drug for the purpose of more accurately describing the plant or substance concerned.
The Governor may, from time to time, by regulation amend Schedule 2:(a) by adding the name or description of or relating to a substance, or(b) by amending a name or description of or relating to a substance for the purpose of more accurately describing the substance.
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) The regulations may, in relation to such prohibited plants or prohibited drugs as may be specified in the regulations, exempt any person or any class or description of persons from such of the provisions of this Act or the regulations as may be so specified in such circumstances, if any, as may be so specified.(2A) The regulations may make provision for or with respect to prohibiting or regulating the sale and storage of:(a) precursors, and(b) any apparatus that is capable of being used in the manufacture or production of a prohibited drug,being such precursors and apparatus as are prescribed by the regulations for the purposes of this section.(3) A regulation may create an offence punishable by a penalty, including a distinct penalty in the case of a second or subsequent offence, not exceeding:(a) 150 penalty units in the case of a corporation, or(b) 50 penalty units in the case of an individual.(4) An offence under the regulations may be prosecuted summarily before the Local Court.(5) A provision of a regulation may:(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind, or(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,or may do any combination of those things.