KAVA MANAGEMENT ACT 1998

NORTHERN TERRITORY OF AUSTRALIA KAVA MANAGEMENT ACT 1998 As in force at 1 July 2021 Table of provisions Part 1 Preliminary 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 2A Objects of Act .................................................................................. 1 3 Interpretation ................................................................................... 1 4 Application ....................................................................................... 5 5 Act to bind Crown ............................................................................ 5 7 Delegation ....................................................................................... 5 8 Guidelines........................................................................................ 5 Part 1A Administration 8A Appointment of Director of Kava Management ................................ 6 8B Annual report ................................................................................... 6 8C Approved forms ............................................................................... 6 8D Protection from liability .................................................................... 6 Part 2 Obligations, offences and penalties, &c. Division 1 Obligations and offences Subdivision 1 Possession of Kava 9 Possession of trafficable quantity or more of kava .......................... 7 10 Possession of less than trafficable quantity or less than 25 litres of kava ............................................................................... 7 11 Forfeiture and disposal of kava or thing seized under section 10 ........................................................................................ 8 Subdivision 2 Other obligations and offences 12 Supply of kava ................................................................................. 8 12A Supply of kava to intoxicated person ............................................... 9 13 Cultivation of kava ......................................................................... 10 14 Manufacture and production of kava ............................................. 10 15 Pricing and packaging ................................................................... 10 16 Obligation of wholesale licensee ................................................... 11 17 Obligations of retail licensee .......................................................... 11 18 Licensee to keep, &c., records as prescribed ................................ 12 19 Licensee to lodge returns .............................................................. 12 20 False statement ............................................................................. 13 -- 1 of 72 -- Kava Management Act 1998 ii 21 Person to comply with request of authorised officer ...................... 13 22 Confidentiality ................................................................................ 13 Division 2 Procedure, evidentiary, &c. 23 Knowledge of age immaterial ........................................................ 14 24 Parties to offences committed outside Territory............................. 14 25 Prosecution of licensee for actions of employee............................ 14 26 Criminal liability of executive officer of body corporate .................. 14 27 Evidentiary ..................................................................................... 16 28 Possession by authorised officer ................................................... 16 Part 2A Price of kava 28A Director determines price of kava .................................................. 17 28B Matters Director to take into account in determining price ............. 18 Part 3 Authorised officers 29 Authorised officers ......................................................................... 18 30 Identity cards ................................................................................. 18 31 Functions of authorised officers ..................................................... 18 32 Powers of authorised officers ........................................................ 19 Part 4 Analysts 33 Appointment of analysts ................................................................ 21 34 Analyst's certificate ........................................................................ 21 Part 5 Pre-trial orders for destruction of exhibits 35 Definitions ...................................................................................... 22 36 Extent of order for destruction ....................................................... 22 37 Application to Court for order for destruction ................................. 22 38 Determination of Court for destruction on first mention of charge ........................................................................................... 22 39 Adjournment .................................................................................. 23 40 Order on committal for trial ............................................................ 23 41 Review of determination for retention of kava................................ 23 42 Order on initial hearing of trial........................................................ 23 43 Destruction of kava ........................................................................ 24 44 Matters for consideration on determination for retention of kava ............................................................................................... 24 -- 2 of 72 -- Kava Management Act 1998 iii Part 6 Detention, return, forfeiture and disposal of kava or thing seized Division 1 Director 46 Delivery of kava or thing seized to Director ................................... 25 47 Detention of kava or thing seized .................................................. 25 Division 2 Return, forfeiture and disposal of kava 48 Application ..................................................................................... 25 49 Return of kava or thing seized ....................................................... 25 50 Return of seized vehicle pending prosecution ............................... 26 51 Forfeiture of kava or thing seized .................................................. 26 52 Disposal of kava or thing ............................................................... 27 Part 7 Licence areas Division 1 Preliminary 53 Definitions ...................................................................................... 27 Division 2 Declaration of licence areas 54 Application for declaration of licence area ..................................... 28 55 Explanation of application .............................................................. 28 56 Application may be varied.............................................................. 29 57 Consideration and decision of Minister .......................................... 29 58 Notice of declaration ...................................................................... 30 Division 3 Kava management plans 58A Kava management plan required for each licence area ................ 31 58B Purpose, form and content of kava management plans ................ 31 58C Preparation and approval of kava management plan .................... 31 58D Amendment or replacement of kava management plan ................ 32 Part 8 Licensing Division 1 General 59 Licences ........................................................................................ 34 59A Number of licences that may be granted under Act ....................... 34 60 Application for licence .................................................................... 34 61 Notice of application ...................................................................... 35 62 Objections...................................................................................... 36 63 Matters to be determined regarding applicants.............................. 36 64 Consideration and decision of Director .......................................... 37 65 Duration and renewal of licence .................................................... 38 -- 3 of 72 -- Kava Management Act 1998 iv 65A Condition of licence that holder to comply with Act etc. ................. 39 65B Specification of conditions on licence ............................................ 39 65C Licensee to comply with conditions of licence ............................... 39 66 Licence not transferable ................................................................ 40 Division 2 Variation of licences 67 Director may vary conditions ......................................................... 40 68 When variation takes effect ........................................................... 40 Division 3 Miscellaneous 71 Surrender of licence ...................................................................... 40 72 Acting licensee .............................................................................. 41 Part 9 Control of conduct of licensees Division 1 Complaints 73 Making of complaint ....................................................................... 42 Division 2 Directions 75 Director may give directions .......................................................... 43 Division 3 Suspension, variation and cancellation of licence 76 Suspension or variation in certain circumstances .......................... 44 77 Cancellation of licence ................................................................... 45 Part 10 Review of decisions 78 Definitions ...................................................................................... 46 79 Notice of delegate decision............................................................ 46 80 Application for review .................................................................... 46 81 Effect of application on delegate decision ..................................... 47 82 Director to consider application ..................................................... 47 82A Conducting and deciding review .................................................... 47 82B Notice of decision on review .......................................................... 48 82C Application to NTCAT for review of Director's decision.................. 48 Part 11 Miscellaneous 83 Duplicate licence ........................................................................... 48 84 Delivery, lodgement or issue of applications etc. ........................... 48 85 Authorisation for research purposes etc. ....................................... 49 86 Undercover operations .................................................................. 49 87 Power of police .............................................................................. 50 -- 4 of 72 -- Kava Management Act 1998 v 88 Acquisition to be on just terms ....................................................... 50 89 Regulations.................................................................................... 50 Part 12 Transitional matters for Licensing (Director-General) Act 2014 Division 1 Definitions 90 Definitions ...................................................................................... 52 Division 2 Applications 91 Application to Commission – not yet considered ........................... 53 92 Application to Commission – under active consideration ............... 53 93 Active consideration ...................................................................... 53 Division 3 Review of decisions 94 New review regime applies to post-commencement decisions...... 54 Division 4 Complaints and applications to cancel licence 95 New complaints regime applies to post-commencement complaints ..................................................................................... 54 96 Complaint made before commencement – pending action ............ 54 97 Complaint made before commencement – complaint being dealt with ....................................................................................... 54 98 Application for cancellation made before commencement ............ 55 Division 5 General matters 99 Continuation of ongoing documents and things ............................. 55 Part 13 Transitional matters for Statute Law Amendment (Directors' Liability) Act 2015 100 Offences – before and after commencement................................. 57 Part 14 Transitional matters for Licensing (Director) Repeal Act 2020 101 Definitions ...................................................................................... 57 102 Applications to be decided by Director .......................................... 57 103 Director to complete delegate decision reviews............................. 58 104 Continuation of instruments, appointments, documents etc. ......... 58 Schedule 1 Areas of land that may not be declared to be licensed areas -- 5 of 72 -- Kava Management Act 1998 vi Schedule 2 Reviewable decisions ENDNOTES -- 6 of 72 -- NORTHERN TERRITORY OF AUSTRALIA ____________________ As in force at 1 July 2021 ____________________ KAVA MANAGEMENT ACT 1998 An Act to prohibit and regulate the cultivation, manufacture, production, possession and supply of kava, to encourage responsible practices and procedures in relation to the possession, supply and consumption of kava and for related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Kava Management Act 1998. 2 Commencement This Act comes into operation on the date fixed by the Administrator by notice in the Gazette. 2A Objects of Act The objects of this Act are: (a) to establish mechanisms and procedures for prohibiting and regulating the supply, possession and consumption of kava and for controlling the price of kava; (b) to reduce the health, social and economic problems associated with consumption of kava by the implementation of harm minimisation principles and other responsible practices relating to supply, possession and consumption of kava; and (c) to encourage the involvement of communities in the regulation of the supply, possession and consumption of kava, and the implementation of harm minimisation principles and other responsible practices relating to the supply, possession and consumption of kava, in their community areas. 3 Interpretation (1) In this Act: affected person, see section 78. -- 7 of 72 -- Part 1 Preliminary Kava Management Act 1998 2 analyst means an analyst appointed under section 33. approved form means a form approved under section 83A. authorised officer means: (a) a person appointed to be an authorised officer under section 29(1); (b) a member of the Police Force; or (c) an inspector appointed under section 16 of the Liquor Act 2019. commercial quantity means: (a) 25 or more kilograms of kava; (b) 25 or more litres of kava prepared as a drink; or (c) 20 or more kava plants. cultivate includes grow, sow or scatter the seed produced by kava and plant, nurture, tend or harvest kava. delegate decision, see section 78. Director means the Director of Kava Management appointed under section 8A. incorporated association means an Aboriginal corporation as defined in section 3 of the Aboriginal Councils and Associations Act 1976 (Cth). kava, whether prepared as a drink or in another form: (a) means: (i) the plant or a part of the plant piper methysticum; (ii) a kava lactone; or (iii) a substance produced by chemical synthesis that has the same pharmacological effect as a kava lactone; and (b) includes any substance that is not kava or is not identifiable as kava that is used or dealt with by a person together with kava as if it were kava. -- 8 of 72 -- Part 1 Preliminary Kava Management Act 1998 3 kava lactone means an extract obtainable from the plant piper methysticum that is demethoxy-yangonin, dihydrokavain, dihydromethysticin, kavain, methysticin or yangonin. kava management plan means a kava management plan referred to in section 58A(1), and includes an amended kava management plan or a replacement kava management plan. kava plant means a whole kava plant or a root or part of a root or any other part of a kava plant. licence means a retail licence or a wholesale licence issued or renewed under Part 8 of this Act. licence area means an area declared under section 57(2)(a) to be an area where kava may be sold for consumption. licensee means the holder of a retail licence or a wholesale licence. manufacture includes the process of extracting and refining kava. possession includes being subject to a person's control notwithstanding that the thing possessed is in the custody of another person. premises includes a structure, building, area of land or other place (whether built on or not) and a part of a structure, building, area of land or place. produce means: (a) prepare, package or produce; (b) offering to prepare, package or produce; or (c) doing or offering to do an act preparatory to, in furtherance of or for the purpose of preparing, packaging or producing. retail licensee means the holder of a retail licence. reviewable decision, see section 78. sell includes offer or expose for sale. supply means: (a) give, distribute, sell, administer, transport or supply, whether or not for fee, reward or consideration or in expectation of fee, reward or consideration; -- 9 of 72 -- Part 1 Preliminary Kava Management Act 1998 4 (b) have or keep in possession for supply; (c) offering to do an act referred to in paragraph (a); or (d) doing or offering to do an act preparatory to, in furtherance of, or for the purpose of an act referred to in paragraph (a), and includes barter and exchange. trafficable quantity means: (a) more than 2 kilograms but less than 25 kilograms of kava; or (b) more than 4 but less than 20 kava plants, but does not include a quantity of kava prepared as a drink. vehicle means any means of transport whether by land or water or through the air. wholesale licensee means the holder of a wholesale licence. Note for subsection (1) The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act. (2) For the purposes of this Act and the Regulations, a person takes part in the supply, cultivation, manufacture or production of kava if the person: (a) takes or causes to be taken or participates in a step in the process of the supply, cultivation, manufacture or production of kava; (b) provides or arranges finance for a step in that process; or (c) provides the premises or vehicle in or on which a step in that process is taken or suffers or permits a step in that process to be taken in or on the premises or vehicle in respect of which the person is the owner, lessee or occupier or participates in the management. (3) In this Act, a reference to an offence against this Act is to be read and construed as including an attempt or a conspiracy to commit the offence. -- 10 of 72 -- Part 1 Preliminary Kava Management Act 1998 5 4 Application This Act does not apply in relation to: (a) possession of a product listed or registered under the Therapeutic Goods Act 1989 of the Commonwealth of which kava is a component or ingredient in accordance with that Act; or (b) possession by a person who has attained the age of 18 years of a quantity of kava that is equal to or less than 2 kg and that the person has as an incoming passenger brought or carried into Australia in his or her personal baggage. 5 Act to bind Crown This Act binds the Crown not only in right of the Territory but, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities. 7 Delegation (1) The Minister may delegate any of the Minister's powers and functions under this Act to: (a) the Director; or (b) the Chief Health Officer. (2) The Director may delegate any of the Director's powers or functions under this Act, other than a power under Part 10, to a public sector employee. 8 Guidelines (1) Subject to the approval of the Minister, the Director may make guidelines with respect to the operation of this Act and the Regulations for the purpose of assisting licensees, persons wishing to apply for a licence or members of the public generally. (2) Guidelines under subsection (1) are to be published in the manner determined by the Director. (3) An action of a person under this Act or the Regulations is to comply with the guidelines published under this section. -- 11 of 72 -- Part 1A Administration Kava Management Act 1998 6 Part 1A Administration 8A Appointment of Director of Kava Management The Minister must, in writing, appoint a person to be the Director of Kava Management. 8B Annual report (1) The Director must, within 3 months after the end of each financial year, give the Minister a report on the operation of this Act during that year. (2) The Minister must table a copy of the report in the Legislative Assembly within 6 sitting days after the Minister receives the report. 8C Approved forms The Director may approve forms for this Act. 8D Protection from liability (1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act as the Director or a delegate of the Director. (2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission. (3) In this section: exercise of a power includes the purported exercise of the power. performance of a function includes the purported performance of the function. -- 12 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 1 Obligations and offences Subdivision 1 Possession of Kava Kava Management Act 1998 7 Part 2 Obligations, offences and penalties, &c. Division 1 Obligations and offences Subdivision 1 Possession of Kava 9 Possession of trafficable quantity or more of kava A person (whether he or she is in or outside a licence area and whether or not he or she has attained the age of 18) must not possess a quantity of kava that is equal to or more than the trafficable quantity unless doing so in accordance with a licence. Maximum penalty: In the case of a trafficable quantity – 100 penalty units or imprisonment for 2 years. In the case of a commercial quantity – imprisonment for 8 years. 10 Possession of less than trafficable quantity or less than 25 litres of kava (1) A person who has not attained the age of 18 (whether he or she is inside or outside a licence area) must not possess a quantity of kava that is less than the trafficable quantity or a quantity of kava prepared as a drink that is less than 25 litres. (2) If a person who has attained the age of 18 is outside a licence area, the person must not possess a quantity of kava that is less than the trafficable quantity or a quantity of kava prepared in the form of a drink that is less than 25 litres unless doing so in accordance with a licence. (3) Where an authorised officer has reason to believe that a person is not complying with subsection (1) or (2), the authorised officer may seize the kava, or a thing he or she reasonably believes to be kava, that is in the possession of the person. (4) If kava or a thing that an authorised officer reasonably believes to be kava is in the immediate vicinity of a person who the officer on reasonable grounds believes: (a) is not complying with subsection (1) or (2); or (b) would not be complying with those subsections if the kava or thing was in his or her possession), -- 13 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 1 Obligations and offences Subdivision 2 Other obligations and offences Kava Management Act 1998 8 the kava or thing may be taken to be in the possession of the person and dealt with under subsection (3) and section 11 as if the kava or thing is in the possession of the person. (5) A person who fails to comply with this section does not commit an offence against this Act and no prosecution may be instituted under this section against the person in relation to possession of the kava or thing. 11 Forfeiture and disposal of kava or thing seized under section 10 (1) On the seizure of kava or a thing under section 10, the kava or thing is forfeited to the Territory and the authorised officer must: (a) take the kava or thing to a police station; or (b) if the kava is prepared as a drink or the authorised officer reasonably believes that the thing is kava prepared as a drink – immediately dispose of or destroy the kava or thing by emptying the receptacle containing the kava or thing. (2) Where an authorised officer seizes kava or a thing under section 10, he or she must, as soon as reasonably possible, make a record of the kava or thing seized in the approved form and manner. (3) A record made under subsection (2) is to be delivered to the Director in the approved form. (4) Kava or a thing referred to in subsection (1)(a) is to be destroyed or disposed of in a manner determined by the Director. Subdivision 2 Other obligations and offences 12 Supply of kava (1) A person must not supply kava to another person, or take part in the supply of kava to another person, unless doing so in accordance with a licence. Maximum penalty: In the case of a quantity less than the trafficable quantity – 50 penalty units. In the case of a trafficable quantity – 100 penalty units or imprisonment for 2 years. In the case of a commercial quantity – imprisonment for 8 years. -- 14 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 1 Obligations and offences Subdivision 2 Other obligations and offences Kava Management Act 1998 9 (2) A person must not supply kava to: (a) a person who has not attained the age of 18 years; or (b) a person who the person knows or has reason to believe will supply the product to a person who has not attained the age of 18 years. Maximum penalty: In the case of a quantity less than the trafficable quantity – 100 penalty units or imprisonment for 2 years. In the case of a trafficable quantity – imprisonment for 8 years. In the case of a commercial quantity – imprisonment for 14 years. (3) A person must not send a person who has not attained the age of 18 years to purchase or collect kava from a licensee. Maximum penalty: In the case of a quantity less than the trafficable quantity – 100 penalty units or imprisonment for 2 years. In the case of a trafficable quantity – imprisonment for 8 years. In the case of a commercial quantity – imprisonment for 14 years. (4) A person commits an offence against this section whether or not the supply of kava took place in or outside the Territory and, if the supply took place outside the Territory, whether or not the supply of kava to the person is an offence in that place. 12A Supply of kava to intoxicated person A person must not supply kava to a person who is intoxicated by kava, alcohol or a drug. Maximum penalty: For a first offence –100 penalty units or imprisonment for 6 months. For a second or subsequent offence – 200 penalty units or imprisonment for 12 months. -- 15 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 1 Obligations and offences Subdivision 2 Other obligations and offences Kava Management Act 1998 10 13 Cultivation of kava A person must not cultivate kava or take part in the cultivation of kava. Maximum penalty: In the case of a quantity less than the trafficable quantity – 50 penalty units or imprisonment for 2 years. In the case of a trafficable quantity – imprisonment for 5 years. In the case of a commercial quantity – imprisonment for 8 years. 14 Manufacture and production of kava A person must not manufacture or produce kava, or take part in the manufacture or production of kava, unless doing so in accordance with a licence. Maximum penalty: In the case of a quantity less than the commercial quantity – imprisonment for 5 years. In the case of a commercial quantity – imprisonment for 8 years. 15 Pricing and packaging (1) A licensee must not supply kava unless it is: (a) for the price determined under Part 2A; and (b) packaged in a manner that complies with the Regulations. Maximum penalty: In the case of a natural person – 100 penalty units. In the case of a body corporate – 500 penalty units. (2) An offence against this section is a regulatory offence. -- 16 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 1 Obligations and offences Subdivision 2 Other obligations and offences Kava Management Act 1998 11 16 Obligation of wholesale licensee A wholesale licensee must not supply kava to a person unless that person is a retail licensee or a wholesale licensee. Maximum penalty: In the case of a quantity less than the trafficable quantity: (a) if the offender is a natural person – 50 penalty units; or (b) if the offender is a body corporate – 250 penalty units. In the case of a trafficable quantity: (a) if the offender is a natural person – 100 penalty units or imprisonment for 2 years; or (b) if the offender is a body corporate – 500 penalty units. In the case of a commercial quantity: (a) if the offender is a natural person – imprisonment for 8 years; or (b) if the offender is a body corporate – 1,000 penalty units. 17 Obligations of retail licensee A retail licensee must not: (a) purchase kava except from a wholesale licensee; or (b) supply kava unless doing so in the licence area in respect of which the licensee's licence is issued. Maximum penalty: In the case of a quantity less than the trafficable quantity: (a) if the offender is a natural person – 50 penalty units; or (b) if the offender is a body corporate – 250 penalty units. -- 17 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 1 Obligations and offences Subdivision 2 Other obligations and offences Kava Management Act 1998 12 In the case of a trafficable quantity: (a) if the offender is a natural person – 100 penalty units or imprisonment for 2 years; or (b) if the offender is a body corporate – 500 penalty units. In the case of a commercial quantity: (a) if the offender is a natural person – imprisonment for 8 years; or (b) if the offender is a body corporate – 1,000 penalty units. 18 Licensee to keep, &c., records as prescribed (1) A licensee must keep records as prescribed in relation to the purchase and disposal of kava. Maximum penalty: In the case of a natural person – 50 penalty units. In the case of a body corporate – 250 penalty units. (2) A licensee must produce the records required to be kept under the Regulations on being requested to do so by an authorised officer. Maximum penalty: In the case of a natural person – 100 penalty units. In the case of a body corporate – 500 penalty units. (3) An offence against this section is a regulatory offence. 19 Licensee to lodge returns (1) A licensee must not refuse or fail to lodge a return required to be lodged under this Act or the Regulations. Maximum penalty: In the case of a natural person – 50 penalty units. In the case of a body corporate – 250 penalty units. -- 18 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 1 Obligations and offences Subdivision 2 Other obligations and offences Kava Management Act 1998 13 (2) A licensee must not lodge a return which is false in any particular. Maximum penalty: In the case of a natural person – 100 penalty units. In the case of a body corporate – 500 penalty units. (3) An offence against this section is a regulatory offence. 20 False statement A person must not knowingly make a false or misleading statement in connection with a matter under this Act. Maximum penalty: 50 penalty units or imprisonment for 12 months. 21 Person to comply with request of authorised officer (1) A person must not: (a) refuse or fail to comply with a request or requirement of an authorised officer made under section 32; or (b) otherwise obstruct or hinder an authorised officer in the proper execution of his or her duties. (2) A person must not make a false statement in answer to a request of an authorised officer to make a statement or provide proof of his or her age under section 32(4). Maximum penalty: 50 penalty units. 22 Confidentiality A person must not, except in the course of his or her duty under this Act or in the course of proceedings in a court in respect of an offence against this Act or the Regulations, divulge to another person information that he or she has acquired by reason of the inspection of premises, books, documents or papers under this Act or the Regulations. Maximum penalty: 50 penalty units. -- 19 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 2 Procedure, evidentiary, &c. Kava Management Act 1998 14 Division 2 Procedure, evidentiary, &c. 23 Knowledge of age immaterial Where an offence against this Act is committed in respect of a person who has not attained the age of 18, it is immaterial that the accused did not know that the person had not attained the age of 18 or that the accused believed that the person had attained the age of 18. 24 Parties to offences committed outside Territory A person in the Territory who is a party to an act done at a place outside the Territory that: (a) is an offence under the law in force in that place; and (b) if it had been done in the Territory, would be an offence against this Act, commits an offence against this Act and, on being found guilty of that offence, is liable to the same penalty and forfeiture as if the act had been done in the Territory. 25 Prosecution of licensee for actions of employee (1) Where the actions of a person employed by a licensee would constitute an offence against this Act, the licensee may be prosecuted for the offence (whether or not the person employed is also prosecuted) as if the licensee had personally performed those actions. (2) A reference in subsection (1) to a person employed by a licensee includes a reference to a person whose services are provided to a licensee under a contract with the person or another person. 26 Criminal liability of executive officer of body corporate (1) An executive officer of a body corporate commits an offence if the body corporate commits an offence by contravening a declared provision (a relevant offence). Maximum penalty: The maximum penalty that may be imposed on an individual for the relevant offence. -- 20 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 2 Procedure, evidentiary, &c. Kava Management Act 1998 15 (2) An offence against subsection (1) is a regulatory offence. (3) It is a defence to a prosecution for an offence against subsection (1) if the defendant: (a) was not in a position to influence the conduct of the body corporate in relation to the contravention; or (b) took reasonable steps to prevent the contravention; or (c) did not know, and could not reasonably have been expected to know, that the contravention would happen. (4) In deciding whether the defendant took (or failed to take) reasonable steps to prevent the contravention, a court must consider the following: (a) any action the defendant took directed towards ensuring the following (to the extent the action is relevant to the contravention): (i) the body corporate arranged regular professional assessments of the body corporate's compliance with the declared provision; (ii) the body corporate implemented any appropriate recommendation arising from an assessment under subparagraph (i); (iii) the body corporate's employees, agents and contractors had a reasonable knowledge and understanding of the requirement to comply with the declared provision; (b) any action the defendant took when the defendant became aware that the contravention was, or could be, about to happen. (5) Subsection (4) does not limit the matters the court may consider. (6) This section does not affect the liability of the body corporate. (7) This section applies whether or not the body corporate is prosecuted for, or found guilty of, the relevant offence. (8) This section does not apply if the body corporate would have a defence to a prosecution for the relevant offence. -- 21 of 72 -- Part 2 Obligations, offences and penalties, &c. Division 2 Procedure, evidentiary, &c. Kava Management Act 1998 16 (9) In this section: declared provision means: (a) section 12(1) or (2), 13 or 14; or (b) a provision of the Regulations prescribed by regulation. executive officer, of a body corporate, means a director or other person who is concerned with, or takes part in, the management of the body corporate. 27 Evidentiary (1) In respect of a charge against a person for the alleged committal of an offence against this Act: (a) proof that kava was at the material time in or on premises or a vehicle of which the person was the occupier or in control, or the management or control of which the person was concerned with, is evidence that the kava was at that time in the person's possession unless it is shown that the person neither knew nor had reason to suspect that the kava was in or on the premises or vehicle; (b) the operation of section 32 of the Criminal Code is excluded unless the person shows his or her honest and reasonable belief in the existence of a state of things material to the charge; and (c) the burden of proving an authorisation to do an act or make an omission lies on the person. (2) If a sample of a quantity of a substance seized under this Act and alleged to be kava is analysed or examined by an analyst and the results of the analysis or examination establishes the presence of a kava lactone in the sample, for the purpose of establishing whether a person committed an offence against this Act relating to the substance seized, the whole of the quantity of the substance seized is to be taken to be kava. 28 Possession by authorised officer (1) Notwithstanding this Act, the possession of kava by an authorised officer is not an offence if the kava: (a) was seized or obtained in the performance of his or her functions and the exercise of his or her powers under this Act or any other law in force in the Territory; -- 22 of 72 -- Part 2A Price of kava Kava Management Act 1998 17 (b) is in the authorised officer's possession pending the institution and hearing of proceedings for an offence against this Act or any other law in force in the Territory; or (c) is in the authorised officer's possession for a purpose associated with the administration of this Act. (2) Kava is to be taken to be in the possession of an authorised officer for a purpose associated with the administration of this Act if it is held by the authorised officer for: (a) analysis or examination for the purpose of prosecuting an offence against this Act or any other law in force in the Territory; (b) for the purpose of giving evidence in those proceedings; (c) delivery to a police station or the Director; or (d) the destruction or disposal of the kava. (3) Where proceedings for an offence against this Act have commenced: (a) an authorised officer who has obtained kava is not, by reason only of that circumstance, to be taken to be a party to or guilty of an offence against this Act; and (b) any evidence given in the proceedings by the authorised officer is not, in the absence of evidence to the contrary, to be taken to be the evidence of an accomplice. Part 2A Price of kava 28A Director determines price of kava (1) Subject to this Part, the Director determines the price of kava. (2) The Director must, in writing, determine: (a) the price for which kava is supplied by wholesale licensees; and (b) the price for which kava is supplied by retail licensees. (3) The Director may determine different prices to apply in different licence areas. -- 23 of 72 -- Part 3 Authorised officers Kava Management Act 1998 18 28B Matters Director to take into account in determining price In determining the price of kava, the Director must take into account the localities of the licence areas, the financial viability of the operations of the licensees and harm minimisation issues relevant to the communities where kava is supplied or consumed. Part 3 Authorised officers 29 Authorised officers (1) The Minister may, by notice in writing, appoint a person to be an authorised officer for the purposes of this Act. (2) A member of the Police Force or an inspector appointed under section 16 of the Liquor Act 2019 is an authorised officer while exercising the powers conferred on an authorised officer by this Act. 30 Identity cards (1) The Director must issue to each authorised officer appointed under section 29(1) an identity card containing a photograph and the signature of the authorised officer. (2) Subject to section 32(3), an authorised officer must produce his or her identity card on being requested to do so by a person in respect of whom the authorised officer has exercised or is about to exercise his or her powers under this Act. (3) A person must as soon as reasonably possible after ceasing to be an authorised officer return his or her identity card to the Director. Maximum penalty: 5 penalty units. (4) An offence against subsection (3) is a regulatory offence. 31 Functions of authorised officers (1) It is the function of an authorised officer to ensure that this Act and the Regulations are being observed. (2) An authorised officer is subject to the directions of the Director or, in the case of a member of the Police Force, the Commissioner of Police when performing his or her functions. -- 24 of 72 -- Part 3 Authorised officers Kava Management Act 1998 19 32 Powers of authorised officers (1) Where an authorised officer has reasonable grounds to suspect that: (a) kava is being produced or supplied, whether with or without a licence, on particular premises or in or on a particular vehicle; or (b) an offence against this Act or the Regulations has occurred, is occurring or is likely to occur on premises or in or on a vehicle, the authorised officer may, without a search warrant but with the assistance he or she thinks necessary: (c) enter or board, with the force that is necessary and reasonable, or inspect or search the premises or vehicle; (d) search or detain a person: (i) who is in or on the premises or vehicle or who he or she reasonably believes is about to enter or board or has recently left the premises or vehicle; and (ii) on whom he or she reasonably suspects there may be something that is evidence of or that otherwise relates to the offence; (e) require the person in charge of a vehicle to cause it to stop or to bring it to a place in the Territory and to remain in control of it at that place until an authorised officer permits him or her to depart from that place; (f) stop, search and detain a person on whom he or she reasonably believes that there may be something that is evidence of or that otherwise relates to the offence; or (g) take any other action that is necessary and reasonable to prevent the commission of an offence against this Act or the Regulations. (2) An authorised officer who enters premises or gets into or boards a vehicle in pursuance of this section may: (a) with the force that is necessary and reasonable, open and search a cupboard, drawer, chest, trunk, box, cage, package or other receptacle, whether a fixture or not; -- 25 of 72 -- Part 3 Authorised officers Kava Management Act 1998 20 (b) if he or she reasonably believes that: (i) the vehicle or a receptacle found in or on the premises or vehicle; (ii) a thing found in or on the vehicle or a receptacle referred to in subparagraph (i); or (iii) a thing found on a person searched in or on the premises or vehicle, is evidence of or otherwise relates to an offence that has been or is being committed against this Act or the Regulations, seize, take, detain, remove and secure the vehicle, receptacle or thing; (c) examine, take stock of and take samples of any kava or a thing he or she reasonably believes to be kava; (d) inspect any documents; (e) remove and retain a document which he or she has reasonable grounds to believe is evidence of or otherwise relates to an offence against this Act or the Regulations for so long as is reasonably necessary for the purpose of making copies of the document; or (f) seize and remove any kava or a thing he or she reasonably believes to be kava which he or she has reasonable grounds to believe is evidence of or otherwise relates to an offence against this Act or the Regulations. (3) Unless, before commencing a search of premises, a vehicle or a person under this section, an authorised officer produces his or her identity card to: (a) the person who is or appears to be in charge of the premises or vehicle; or (b) the person he or she is about to search, the authorised officer is not authorised to search the premises, vehicle or person, as the case may be. -- 26 of 72 -- Part 4 Analysts Kava Management Act 1998 21 (4) Where an authorised officer has reasonable grounds to believe that a person may be able to assist the officer in inquiries in connection with an offence against this Act or the Regulations that has been, may have been, is being or may be committed, the officer may request the person: (a) if the person's name or address is not known to the authorised officer – to state his or her name and address; (b) if the person's age is not known to the authorised officer: (i) to state the date and place of his or her birth; and (ii) to provide proof of his or her age; and (c) to state, if known by the person, the name or identity of the supplier of any kava in the person's possession. (5) A female must not be searched under this section except by a female. Part 4 Analysts 33 Appointment of analysts The Minister may, by notice in the Gazette, appoint a person to be an analyst for the purposes of carrying out the sampling, analysis or examination of a thing seized under this Act. 34 Analyst's certificate In proceedings for an offence against this Act, the production of a certificate purporting to be signed by an analyst in relation to an analysis or examination made by the analyst is, without proof of the analyst's signature or that he or she is an analyst, evidence of: (a) the identity and quantity of the thing analysed or examined; and (b) the result of the analysis or examination and of the other matters relevant to the proceedings stated in the certificate, and, in the absence of evidence to the contrary, is conclusive evidence. -- 27 of 72 -- Part 5 Pre-trial orders for destruction of exhibits Kava Management Act 1998 22 Part 5 Pre-trial orders for destruction of exhibits 35 Definitions In this Part: Court means the Local Court. kava means kava, or a thing alleged to be kava, that is seized under this Act. order means an order under this Part. 36 Extent of order for destruction An order for the forfeiture and destruction of kava is not to be made unless: (a) the quantity of kava seized is more than 3 times the quantity of kava required for the sampling and analysis of the kava; and (b) the order authorises the destruction of not more than the quantity of kava that represents the quantity of the kava seized less 3 times the quantity of kava required for the sampling and analysis of the kava. 37 Application to Court for order for destruction (1) At any time after the seizure of kava under this Act, the Director or an authorised officer may apply to the Court for an order for the forfeiture to the Territory and the destruction of the kava. (2) On hearing the application, the Court may make an order that the kava is to be retained or that the kava is forfeited to the Territory and is to be destroyed. 38 Determination of Court for destruction on first mention of charge (1) Subject to this section, where a person is charged with an offence that relates to kava that has not been ordered to be forfeited and destroyed under section 37, on the first occasion on which the charge is mentioned before the Court, the Court may make an order that the kava is to be retained or that the kava is forfeited to the Territory and is to be destroyed. (2) Where the accused is legally represented and no party objects to the destruction of the kava, the Court must make an order that the kava is forfeited to the Territory and is to be destroyed. -- 28 of 72 -- Part 5 Pre-trial orders for destruction of exhibits Kava Management Act 1998 23 (3) Where the accused is not present before the Court, the accused is present but is not legally represented or a party objects to the destruction of the kava, the Court may make an order that: (a) the kava is forfeited to the Territory and is to be destroyed; or (b) if there is a requirement to retain the kava or the Court is satisfied that it is in the interests of justice or that there is some other sufficient reason for doing so, the kava is to be retained. 39 Adjournment (1) The Court must adjourn the hearing of an application under section 37 or postpone the making of an order under section 38 if: (a) no order with respect to the kava is in force and a party to the proceedings requests the adjournment or postponement; or (b) in the opinion of the Court, it is in the interests of justice or there is some other sufficient reason for the adjournment or delay. (2) An adjournment or postponement under this section is to be for a period not exceeding 14 days. 40 Order on committal for trial (1) On the committal for trial of a person for an offence with respect to kava that the Court has not ordered to be forfeited and destroyed, the Court must make an order that the kava is to be retained or that the kava is forfeited to the Territory and is to be destroyed. (2) Where the Court orders that the kava is to be retained, the Court must give reasons for making the order. 41 Review of determination for retention of kava Where a Court makes an order that kava is to be retained, the Court must fix a date, not more than 2 months after the date of the order, on which a further order for the retention of the kava or an order for the forfeiture to the Territory and the destruction of the kava is to be made. 42 Order on initial hearing of trial Where a person is committed for trial for an offence with respect to kava that has not been ordered to be forfeited and destroyed, the court hearing the trial must, on the first occasion on which the matter is mentioned before it, make an order that the kava is to be -- 29 of 72 -- Part 5 Pre-trial orders for destruction of exhibits Kava Management Act 1998 24 retained or that the kava is forfeited to the Territory and is to be destroyed. 43 Destruction of kava (1) Subject to subsection (2) and section 85, where a court makes an order for the destruction of kava, the kava is to be destroyed as soon as reasonably possible after the expiry of: (a) the period of 7 days from the date on which the order was made; or (b) if the order specifies a longer period – that period. (2) A court making an order for the destruction of kava may revoke or vary the order. 44 Matters for consideration on determination for retention of kava In determining whether to make an order that kava is to be retained or is to be forfeited and destroyed, a court must consider: (a) the amount of kava seized; (b) whether the kava can reasonably be securely retained; (c) the period of retention; (d) the purpose of retention; (e) the amount of kava required for the purpose of sampling and analysis; (f) a report, if any, of an analyst relating to the kava; (g) whether the arrest of a person in relation to the kava is imminent; (h) the number of persons charged with offences in relation to the kava; (j) when the hearing of the charge relating to the kava is likely to be concluded; (k) whether any other order has been or will be made relating to the kava; (m) any claim of a person to be lawfully entitled to the kava; and (n) any other matter which, in the opinion of the court, is relevant. -- 30 of 72 -- Part 6 Detention, return, forfeiture and disposal of kava or thing seized Division 2 Return, forfeiture and disposal of kava Kava Management Act 1998 25 Part 6 Detention, return, forfeiture and disposal of kava or thing seized Division 1 Director 46 Delivery of kava or thing seized to Director Subject to this Act, an authorised officer who seizes kava or another thing under this Act must, as soon as reasonably possible after seizing it, deliver the kava or thing to the Director. 47 Detention of kava or thing seized Subject to this Part, the Director may retain possession of kava or a thing delivered under section 46 until the institution of proceedings against this Act or the Regulations in relation to the kava or thing and, if necessary, during the proceedings. Division 2 Return, forfeiture and disposal of kava 48 Application This Division applies subject to Part 5. 49 Return of kava or thing seized (1) Where kava or another thing is seized and delivered to the Director under this Act and: (a) no proceedings are instituted for an offence relating to the kava or thing; or (b) proceedings were instituted for an offence referred to in paragraph (a) but the person accused of committing the offence was not found guilty and no order for the forfeiture and disposal of kava has been made under Part 5 or otherwise by the court, the Director must, by notice in writing, invite the person from whom the kava or thing was seized, or another person appearing to the Director to be the owner of the kava or thing, to claim delivery to him or her of it. (2) A person to whom a notice is directed under subsection (1) who wishes to make a claim for the delivery of the kava or thing to him or her must make the claim not later than 30 days after the date of the notice. -- 31 of 72 -- Part 6 Detention, return, forfeiture and disposal of kava or thing seized Division 2 Return, forfeiture and disposal of kava Kava Management Act 1998 26 (3) Where a person who receives a notice under subsection (1) makes a claim for the delivery of the kava or thing seized, the Director must deliver the kava or thing into the custody or possession of the Local Court to be dealt with by the court under section 130B of the Local Court (Criminal Procedure) Act 1928 as if it were property the subject of an application by a claimant of property under that section. 50 Return of seized vehicle pending prosecution (1) Notwithstanding section 49, the owner or another person who would, but for the seizure of a vehicle under this Act, be entitled to possession of the vehicle may, any time before the trial of a person for an offence to which the seizure of the vehicle relates, apply to the Minister for the return of the vehicle to him or her. (2) Where an application is made to the Minister under subsection (1), the Minister may, after considering the recommendations of the Director in relation to the application and being satisfied that the applicant was not knowingly involved in the act allegedly constituting the offence and had no reason to suspect that it might be used in connection with the alleged commission of the offence, release the vehicle to the applicant subject to the conditions relating to its production as evidence at the trial referred to in that subsection as the Minister thinks fit. 51 Forfeiture of kava or thing seized (1) If no claim is made for the delivery of kava or a thing under section 49, the kava or thing is, by force of this subsection, forfeited to the Territory. (2) If: (a) a person is found guilty of an offence relating to kava or a thing seized and delivered to the Director under this Act; and (b) the kava or thing has not already been forfeited by an order made under Part 5, the kava or thing is, by force of this subsection, forfeited to the Territory. (3) Where proceedings are instituted against a person for an offence against this Act involving kava but he or she is not found guilty of the offence, the court before which the person was tried may order that all or some of the kava be forfeited to the Territory. (4) A forfeiture under subsection (2) is in addition to any penalty imposed on a person found guilty of the offence. -- 32 of 72 -- Part 7 Licence areas Division 1 Preliminary Kava Management Act 1998 27 52 Disposal of kava or thing (1) All kava and things forfeited to the Territory under this Act may be destroyed or disposed of in a manner determined by the Director. (2) Without limiting the generality of subsection (1), where the Minister approves, a vehicle that has been forfeited may be sold or returned to a person who immediately before the forfeiture of the vehicle had a legal or equitable interest in it and who, in the opinion of the Minister, was not knowingly involved in the act constituting the offence or alleged offence, and had no reason to suspect that it might be used in connection with the commission or alleged commission of the offence to which the seizure of the vehicle relates. Part 7 Licence areas Division 1 Preliminary 53 Definitions In this Part: area does not include: (a) a municipality as defined in section 7 of the Local Government Act 2019; (b) the area at Jabiru described in Part A of Schedule 1; (c) the area at Nhulunbuy described in Part B of Schedule 1; or (d) an area that the Minister by notice in the Gazette determines may not be declared to be a licence area. council means a council for a Territory region or a shire under the Local Government Act 2019. resident, in relation to an area in respect of which an application is made under section 54, means a person who: (a) is 18 or more years of age; and (b) resides in the area or has a right or interest in land within the area. -- 33 of 72 -- Part 7 Licence areas Division 2 Declaration of licence areas Kava Management Act 1998 28 right or interest in land includes the entitlement by Aboriginal tradition, within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 of the Commonwealth, to use or occupy land. Division 2 Declaration of licence areas 54 Application for declaration of licence area (1) At least 10 residents of an area may apply to the Minister for the Minister to declare, in writing, that the area is a licence area. (1A) A council may apply to the Minister for the Minister to declare, in writing, that: (a) the whole of the local government area in respect of which the council is constituted is a licence area; or (b) a part of the local government area in respect of which the council is constituted is a licence area; or (c) 2 or more non-contiguous parts of the local government area in respect of which the council is constituted is a licence area. (2) An application is to: (a) be in writing; (b) be signed by each applicant or, in the case of an application made under subsection (1A), a person authorised by the applicant; and (c) include a description of the area or areas in sufficient detail to enable the Minister to identify the location of the proposed licence area. 55 Explanation of application (1) After receiving an application under section 54 the Minister must: (a) inform the residents of the area or areas to which the application relates and any other persons who, in the opinion of the Minister, are sufficiently interested in whether or not the area is or areas are declared to be a licence area to be informed (who may include persons residing in the vicinity of the area or areas), of the receipt of the application; and (b) fix a date, time and place for a meeting with those residents and other persons and advise them of that date, time and place, -- 34 of 72 -- Part 7 Licence areas Division 2 Declaration of licence areas Kava Management Act 1998 29 in the manner the Minister considers appropriate. (2) At the meeting held in accordance with subsection (1)(b), the Minister or the Minister's nominee must: (a) explain to the persons present the effect of declaring an area or areas to be a licence area; and (b) endeavour to ascertain the needs and opinions of the residents and other persons referred to in subsection (1) on the proposal to declare the area or areas a licence area. 56 Application may be varied The applicants under section 54 may, by notice in writing to the Minister: (a) after the meeting referred to in section 55, vary the application by altering the area or areas to which the application relates, but not so as to increase the size of the proposed licence area; or (b) at any time before the Minister declares the area or areas to be a licence area, withdraw the application. 57 Consideration and decision of Minister (1) In deciding whether to declare an area or areas to be a licence area, the Minister: (a) must consider the needs and opinions of the residents and the other persons referred to in section 55(1); (b) may conduct the investigations in relation to the application he or she thinks fit; and (c) if the area is or areas are within or in the vicinity of a local government area or an area controlled or managed by an incorporated association – must consult with the local government council for the local government area or the incorporated association to ascertain its views regarding the area or areas that the Minister should declare to be a licence area and any other matters relating to the possession, supply and consumption of kava within the proposed licence area that the Minister considers appropriate. -- 35 of 72 -- Part 7 Licence areas Division 2 Declaration of licence areas Kava Management Act 1998 30 (2) After due consideration of an application under subsection (1), the Minister may: (a) declare an area or areas in respect of which the application was made to be an area or areas where kava may be sold for consumption; or (b) refuse to declare an area or areas in respect of which the application was made to be an area or areas where kava may be sold for consumption. (3) A declaration under subsection (2)(a) may be made in respect of: (a) the area or areas of land described in the application; or (b) an area or areas of land that is equal to, greater than or less than the area or areas described in the application and that includes or include a substantial part of the area or areas described in the application. (4) A declaration under subsection (2)(a) does not take effect until notice of the declaration is published in the Gazette in accordance with section 58(1). 58 Notice of declaration (1) The Minister must, not later than 14 days after declaring an area or areas of land to be a licence area under section 57, cause notice of the declaration to be published in the Gazette and: (a) in a newspaper or other publication circulating throughout the area or areas; or (b) in any other manner the Minister considers suitable to publicise the making of the declaration throughout the area or areas. (2) The notice of the declaration is to: (a) include a description of the licence area in sufficient detail to identify the location of the area; (b) include a statement that kava may be sold for consumption within the licence area; and (c) specify the date the declaration takes effect. -- 36 of 72 -- Part 7 Licence areas Division 3 Kava management plans Kava Management Act 1998 31 Division 3 Kava management plans 58A Kava management plan required for each licence area (1) There is to be a kava management plan for each licence area. (2) The Director must not grant a retail licence in respect of a licence area unless a kava management plan has been prepared and approved under section 58C in respect of the licence area. 58B Purpose, form and content of kava management plans (1) The purpose of a kava management plan is to set out: (a) the practices and procedures for or in relation to the possession, supply and consumption of kava in the licence area where it applies; and (b) measures relating to the minimisation of harm to residents and the amenity of the community that results from the possession, supply and consumption of kava in the licence area. (2) A kava management plan: (a) is to be in writing; (b) may apply in one licence area only; and (c) is to specify the licence area where it applies. (3) The Regulations may: (a) prescribe the content and form of a kava management plan; (b) prescribe the manner in which a kava management plan is to be prepared; and (c) provide for the publication of a kava management plan. 58C Preparation and approval of kava management plan (1) The person who applies or persons who apply under section 54(1) or (1A) to the Minister to declare an area or areas as a licence area must prepare a kava management plan for the licence area. (2) A person who prepares or the persons who prepare a kava management plan must do so in consultation with the Director, the Commissioner of Police and the Chief Health Officer and must, on completing it, give the kava management plan to the Director for approval. -- 37 of 72 -- Part 7 Licence areas Division 3 Kava management plans Kava Management Act 1998 32 (3) The Director must not approve a kava management plan unless satisfied that the kava management plan: (a) appropriately provides for the matters specified in section 58B(1)(a) and (b); and (b) complies with this Division and the Regulations; and (c) in the case of a kava management plan that will be applying in a licence area that is, or part of which is, within a local government area or an area controlled or managed by an incorporated association – is supported by the local government council for the local government area or the incorporated association; and (d) was developed to the reasonable satisfaction of the Commissioner of Police and the Chief Health Officer. (3A) In addition, the Director must not approve a kava management plan unless the Director has consulted the residents of the licence area in which the kava management plan will apply about that kava management plan. (3B) For subsection (3A), consultations with residents must be conducted in the same manner in which consultations were conducted with them under section 55 about the application to declare the licence area and section 55 applies (with the necessary changes) accordingly. (4) A kava management plan has no effect unless it is approved by the Director. 58D Amendment or replacement of kava management plan (1) At least 10 residents of a licence area, or a council for a local government area of which part is a licence area, may: (a) prepare an amendment to the kava management plan applying in the licence area; or (b) prepare a kava management plan to replace the kava management plan applying in the licence area. (2) A person who prepares or the persons who prepare an amendment to a kava management plan or a replacement kava management plan must do so in consultation with the Director, the Commissioner of Police and the Chief Health Officer and must, on completing it, give the amendment or replacement kava management plan to the Director for approval. -- 38 of 72 -- Part 7 Licence areas Division 3 Kava management plans Kava Management Act 1998 33 (3) The Director must not approve an amendment to a kava management plan or a replacement kava management plan unless satisfied that: (a) the amended plan or the replacement plan appropriately provides for the matters specified in section 58B(1)(a) and (b); and (b) the amended plan or the replacement plan complies with this Division and the Regulations; and (c) in the case of an amended plan or a replacement plan that will be applying in a licence area that is or part of is within a local government area or an area controlled or managed by an incorporated association – the amended plan or the replacement plan is supported by the local government council for the local government area or the incorporated association; and (d) the amendment to the plan or the replacement plan was developed to the reasonable satisfaction of the Commissioner of Police and the Chief Health Officer. (4) In addition, the Director must not approve an amendment to a kava management plan or a replacement kava management plan unless the Director has consulted the residents of the licence area in which the amendment or replacement plan will apply about that amendment or replacement plan. (4A) For subsection (4), consultations with residents must be conducted in the same manner in which consultations were conducted with them under section 55 about the application to declare the licence area and section 55 applies (with the necessary changes) accordingly. (4B) However, the Director may approve an amendment to a kava management plan without consulting the residents of the licence area as required by subsection (4) if the Director, the Commissioner of Police and the Chief Health Officer agree the amendment is minor in nature. (5) An amendment to a kava management plan or a replacement kava management plan has no effect unless it is approved by the Director. -- 39 of 72 -- Part 8 Licensing Division 1 General Kava Management Act 1998 34 Part 8 Licensing Division 1 General 59 Licences (1) The Director may issue a retail licence or a wholesale licence, in an approved form, to an individual or a body corporate to sell kava. (2) A retail licence is granted for the purpose of selling kava within a particular licence area. (3) A wholesale licence is granted for the purpose of selling kava to a retail licensee or another wholesale licensee. (5) Nothing in this Act prevents: (a) a wholesale licensee applying for a retail licence; or (b) a retail licensee applying for a wholesale licence. 59A Number of licences that may be granted under Act (1) The Minister must, by notice in the Gazette, determine: (a) the maximum number of wholesale licences that the Director may grant; and (b) the maximum number of retail licences that the Director may grant in respect of a licence area. (2) The Minister must not make a determination under subsection (1) unless he or she has received and considered recommendations from the Director relating to the number of wholesale licences or retail licences (as the case requires) that the Director considers should be granted. (3) The Director must not grant more than the number of licences determined under subsection (1). 60 Application for licence (1) Subject to subsection (2) and (2A), an individual who has attained the age of 18 years or a body corporate may apply to the Director for the grant of a wholesale licence or a retail licence. (2) An application for a retail licence is to be made in respect of a licence area (which the applicant must specify in the application). -- 40 of 72 -- Part 8 Licensing Division 1 General Kava Management Act 1998 35 (2A) A person may not make an application for a retail licence unless the person ordinarily resides or carries on business in the licence area to which his or her application relates. (3) An application under subsection (1) is to be lodged in the approved form and accompanied by: (a) the written consents and signed authorities necessary for the Director to investigate the suitability of the applicant to hold the licence; (b) the prescribed information that the Director requires to support the application; and (c) the prescribed fee. 61 Notice of application (1) An applicant for a licence must, not less than 28 days after lodging an application under section 60, publish notice of making the application: (a) in a newspaper or other publication nominated by the Director; or (b) in any other manner the Director considers suitable to publicise the making of the application. (2) Notice under subsection (1) is to be in an approved form and is to specify: (a) the name and address of the applicant; (b) the type of licence applied for; (c) in the case of an application for a retail licence – the licence area where the applicant proposes to sell kava; (d) that objections to the granting of the licence may be made to the Director before the expiration of 28 days after the date the notice is first published in a newspaper; and (e) any other particulars required by the Director. (3) Where an applicant for a retail licence proposes to supply kava within or in the vicinity of a local government area or an area controlled or managed by an incorporated association, the Director must give notice of the making of the application to the local government council for that area or the incorporated association. -- 41 of 72 -- Part 8 Licensing Division 1 General Kava Management Act 1998 36 62 Objections (1) A person may object to the granting of a licence on any ground other than the ground that the grant of the licence may or will adversely affect the business carried on under another licence. (2) An objection is to be: (a) in writing and is to set out the grounds on which the objection is made and the facts relied on; (b) signed by the person making the objection; and (c) lodged with the Director not later than 28 days after the first publication of the notice in a newspaper under section 61. (3) If an objection is lodged, the Director must do the following: (a) inform the applicant of the objection and give the applicant an opportunity to comment in writing on the substance of the objection; (b) conduct the investigations concerning the objection he or she thinks fit. 63 Matters to be determined regarding applicants (1) Where an application for a licence is made, the Director must determine: (a) whether the applicant is a fit and proper person to hold the licence; (aa) if there is more than one application for the same licence – whether the applicant would be the most suitable person from amongst the applicants to hold the licence; and (b) in the case of a retail licence – whether the grant of the licence is in accordance with the needs and opinions of the residents of the licence area to which the application relates. (2) In determining the matters referred to in subsection (1), the Director may make the investigations he or she thinks fit including investigations to inform the Director of: (a) if the applicant is an individual – the character of the applicant; (b) if the applicant is a body corporate: (i) the membership of the body corporate; -- 42 of 72 -- Part 8 Licensing Division 1 General Kava Management Act 1998 37 (ii) the character of the officers, employees or agents of the body corporate; and (iii) the management or proposed management of the body corporate; and (c) the capacity of the applicant (including financial capacity) to conduct the business associated with the licence applied for. (3) Where the Director has given notice of the application to a local government council or an incorporated association under section 61(3), in determining the matters referred to in subsection (1) the Director must have regard to any recommendations made by the council or the association. (4) For the purpose of determining an application, the Director may obtain: (a) from the Commissioner of Police: (i) a written report of the criminal history (notwithstanding that part of the criminal history is a spent conviction within the meaning of the Criminal Records (Spent Convictions) Act) 1992 in respect of an applicant or, if the applicant is a body corporate, a person who is an officer, employee or agent of the applicant; and (ii) any other evidence in relation to the character of the applicant, officer, employee or agent that may assist the Director; and (b) information concerning the financial background of the applicant or, if the applicant is a body corporate, a person who is an officer, employee or agent of the applicant. (5) For the purposes of subsection (4)(a)(i), the criminal history of a person is that which is: (a) in the Commissioner of Police's possession; or (b) ordinarily accessible to the Commissioner of Police through arrangements with the police service of the Commonwealth or a State or another Territory of the Commonwealth. 64 Consideration and decision of Director (1) The Director must determine an application for a licence as soon as reasonably possible after the application is lodged. -- 43 of 72 -- Part 8 Licensing Division 1 General Kava Management Act 1998 38 (2) In determining the application, the Director must consider the objections, the comments on and investigations concerning the objections, the prescribed matters (if any) and the investigations conducted regarding the application. (3) Having done so, the Director must decide to: (a) issue the licence subject to the conditions the Director determines to be necessary or desirable in the circumstances of the application; or (b) refuse to grant the licence. (4) After making the decision, the Director must give notice of the decision and a statement of the reasons for the decision to each affected person. (5) If more than one application was made for the grant of the same licence, the Director may refuse to grant a licence if satisfied that the applicant would not be the most suitable person from amongst the applicants to hold the licence. (6) If the Director refuses to grant a licence under this section, the Director may refund the whole or any part of the prescribed fee paid under section 60(3). 65 Duration and renewal of licence (1) Subject to subsection (1A), a licence remains in force for 12 months after the date it is issued. (1A) If the holder of a licence has applied to renew the licence under subsection (2) and, on the expiry of the licence in accordance with subsection (1), the Director has not made a decision under subsection (3) to renew or refuse to renew the licence, the licence remains in force until the Director makes the decision. (2) An application to renew a licence is to be: (a) lodged with the Director not later than 60 days before the date of the expiry of the licence; and (b) in the approved form and accompanied by: (i) the written consents and authorities necessary for the Director to investigate whether or not to renew the licence; (ii) the prescribed information the Director requires to support the application; and -- 44 of 72 -- Part 8 Licensing Division 1 General Kava Management Act 1998 39 (iii) the prescribed fee. (3) For the purposes of considering an application for renewal of a licence, sections 63 and 64(1) and (2) apply with the necessary changes and, after determining the application, the Director must decide to: (a) renew the licence subject to the conditions that the Director determines are necessary or desirable in the circumstances of the application; or (b) refuse to renew the licence. (3AA) After making the decision, the Director must give notice of the decision and a statement of the reasons for the decision to each affected person. (3A) In addition to the other matters the Director must consider in determining an application for renewal of a licence, the Director must consider the extent to which the applicant has implemented the harm minimisation measures in the kava management plan approved for the licence area and the harm minimisation measures in the applicant's last application for grant or renewal of the licence. (6) Where the Director refuses to grant a licence under this section, the Director may refund the whole or any part of the prescribed fee paid to the Director under subsection (2). 65A Condition of licence that holder to comply with Act etc. It is a condition of a licence issued or renewed under section 64 or 65 that the holder of the licence must comply with this Act, the Regulations and the terms and conditions of the licence. 65B Specification of conditions on licence The conditions imposed on a licence under section 64 or 65 are to be specified on the licence. 65C Licensee to comply with conditions of licence A licensee must comply with the conditions of the licence. Maximum penalty: In the case of a natural person – 500 penalty units. In the case of a body corporate – 2 500 penalty units. -- 45 of 72 -- Part 8 Licensing Division 3 Miscellaneous Kava Management Act 1998 40 66 Licence not transferable A licence is not transferable. Division 2 Variation of licences 67 Director may vary conditions The Director may: (a) on the Director's own motion if the Director considers it is necessary or desirable to do so; or (b) on the application by a licensee in an approved form lodged with the Director; by notice in writing served on the licensee, vary the conditions of a licence. 68 When variation takes effect A variation of the conditions of a licence takes effect on the later of the following: (a) the date specified in the notice under section 67; (b) if the decision to vary the conditions was made by a delegate of the Director – the expiration of the period for applying for a review of the decision. Division 3 Miscellaneous 71 Surrender of licence (1) A licensee may surrender his or her licence by lodging it with the Director. (2) The surrender of a licence does not have effect until it is accepted by the Director. (3) On the acceptance by the Director of the surrender of a licence, the person whose licence is surrendered ceases to be a licensee but remains liable for: (a) an act or omission done, caused, permitted or made by him prior to the surrender; and (b) a liability incurred by him under this Act prior to the surrender. -- 46 of 72 -- Part 8 Licensing Division 3 Miscellaneous Kava Management Act 1998 41 72 Acting licensee (1) If a licensee is, or is expected to be, unable for any reason to conduct the licensee's business under a licence, the Director may appoint a person who in the Director's opinion is a fit and proper person to conduct the business of the licence to act in the place of the licensee. (2) For the purpose of appointing a person to act under subsection (1): (a) the Director may make the investigations the Director thinks fit to determine the character of a proposed appointee and section 63(2) and (4) applies with the necessary changes; and (b) notwithstanding sections 59(5) and 60(2): (i) a person appointed may be the holder of another licence; and (ii) the usual place of residence or usual place of business of a person appointed to act in the place of a retail licensee is not required to be within the licence area in respect of which the licensee's licence was granted. (3) On appointing a person under subsection (1) the Director must re- issue the licence endorsed with the name of the person appointed as the person who conducts the business under the licence. (4) A person appointed under subsection (1) to act as a licensee has all the rights, authorities, powers, functions and obligations of the licensee and for all purposes is to be taken to be the licensee while the appointment is in force. (5) An appointment under subsection (1) continues in force until: (a) the expiration of the period that the licensee is unable to conduct the business under the licence; (b) the Director grants another licence in respect of the business conducted under the licence; (c) the licence is surrendered; or (d) the licence is cancelled, whichever occurs first. -- 47 of 72 -- Part 9 Control of conduct of licensees Division 1 Complaints Kava Management Act 1998 42 (6) A reference in subsection (1) to a reason for the inability of a licensee to conduct the licensee's business under a licence is to be read as including a reference to: (a) a period of absence of the licensee; (b) the death of the licensee; (c) the bankruptcy, application to take the relief of a law for the relief of bankrupt or insolvent debtors or making of an assignment of the licensee's property, interest or remuneration for the benefit of the licensee's creditors; and (d) an illness or other mental or physical incapacity of the licensee. Part 9 Control of conduct of licensees Division 1 Complaints 73 Making of complaint (1) A person may make a complaint to the Director regarding: (a) the conduct of a licensee; or (b) the possession, supply or consumption of kava in a licence area. (2) A complaint must be: (a) in writing and must set out the grounds on which the complaint is made and the facts relied on by the person to constitute the grounds; and (b) signed by the person making it. (3) If a complaint is lodged with the Director, the Director must: (a) inform the licensee of the complaint and give the licensee sufficient opportunity to provide a written reply to the complaint; and (b) consider and investigate the substance of the complaint as the Director thinks fit, taking into account any written reply of the licensee under paragraph (a). -- 48 of 72 -- Part 9 Control of conduct of licensees Division 2 Directions Kava Management Act 1998 43 (4) After considering and investigating a complaint, the Director must: (a) determine that, in the opinion of the Director, the complaint is of a frivolous, irrelevant or malicious nature, and dismiss the complaint; or (b) determine that no further action is warranted; or (c) determine to give a direction under section 75 in response to the complaint; or (d) determine to take action under section 77 in response to the complaint. (5) The Director must give notice of a determination under subsection (4) to the person who made the complaint and the licensee against whom the complaint was made. Division 2 Directions 75 Director may give directions Where a licensee: (a) contravenes or fails to comply with a condition of his or her licence; or (b) has contravened or failed to comply with this Act or another law in force in the Territory relating to the cultivation, manufacture, production, supply or possession of kava, the Director may, by notice in writing, direct the licensee to: (c) take, within the time specified in the notice, an action to rectify or minimise the effects of the licensee's contravention or failure; or (d) refrain from taking an action in relation to the contravention or failure. -- 49 of 72 -- Part 9 Control of conduct of licensees Division 3 Suspension, variation and cancellation of licence Kava Management Act 1998 44 Division 3 Suspension, variation and cancellation of licence 76 Suspension or variation in certain circumstances (1) The Director may, by notice in writing to a licensee, suspend, impose a condition on or vary a condition of his or her licence where: (a) a complaint is made under section 73 and, in the opinion of the Director, it is in the public interest to do so until the determination or dismissal of the complaint; (ab) the Director proposes to cancel the licence under section 77(2) and, in the opinion of the Director, it is in the public interest to do so until a decision on the cancellation is made; (b) the Director has issued a direction to a licensee under section 75 and is of the opinion that suspension of his or her licence is in the interest of the public until compliance with the direction; (c) a licensee has contravened or failed to comply with his or her licence, this Act or the Regulations and in the opinion of the Director the contravention or failure to comply is of sufficient gravity to justify the suspension or variation of the licence; or (d) subject to subsection (1A), there is an emergency situation (for example, a natural disaster, a medical emergency or community unrest, or the licensee or another licensee is supplying adulterated or contaminated kava) and, in the opinion of the Director, it is in the public interest to do so. (1A) The suspension of the licence or imposition or variation of a condition under subsection (1)(d) is not to have effect for more than 7 days after the licence is suspended or the condition imposed or varied. (2) A notice under subsection (1) is to specify the reasons for the suspension or variation. (3) The suspension or variation of a licence takes effect on: (a) the date on which the licensee receives the notice referred to in that subsection; or (b) if a later date is specified in the notice – that date. -- 50 of 72 -- Part 9 Control of conduct of licensees Division 3 Suspension, variation and cancellation of licence Kava Management Act 1998 45 (4) The Director may, if the Director considers suspension or variation of a licence is no longer justified, revoke the notice of suspension or variation given under subsection (1). 77 Cancellation of licence (1) Each of the following is a ground for cancelling a licence: (a) the licensee is in the custody of the Commissioner of Correctional Services; (b) the licensee has been found guilty of an offence against this Act or the Regulations; (c) the licensee has been found guilty of an offence relating to the cultivation, production, possession or supply of a drug; (d) the licensee has contravened a direction given under section 75; (e) the licensee otherwise appears not to be a fit or proper person to hold a licence. (2) If the Director believes a ground for cancelling a licence exists, the Director must give the licensee written notice: (a) stating that the Director proposes to cancel the licence; and (b) stating the ground for the proposed cancellation and the facts relied on to constitute the ground; and (c) inviting the licensee to make a written submission in response to the proposed cancellation within a specified period not less than 28 days after the notice is given. (3) After considering any written submission received from the licensee in response to the notice, the Director may decide to cancel the licence by written notice to the licensee if satisfied: (a) on the balance of probabilities, that a ground for cancelling the licence exists; and (b) that cancelling the licence is appropriate in relation to that ground. -- 51 of 72 -- Part 10 Review of decisions Kava Management Act 1998 46 Part 10 Review of decisions 78 Definitions In this Part: affected person, for a reviewable decision, means a person to whom any of the following applies: (a) for a decision that relates to disciplinary action relating to a licence – the person is the licensee; (b) for a decision that was made in relation to an application – the person is the applicant; (c) the person made a submission, complaint or objection (however described) during the process that resulted in the decision being made. delegate decision means a reviewable decision that is made by a delegate of the Director. reviewable decision means a decision specified in Schedule 2. 79 Notice of delegate decision (1) As soon as practicable after making a delegate decision, a delegate of the Director must give written notice of the decision to each affected person. (2) The notice must state the following: (a) the delegate decision and the reasons for it; (b) that the affected person may apply for a review of the decision under section 80; (c) the period allowed for applying for a review. 80 Application for review (1) An affected person for a delegate decision may apply to the Director for a review of the decision. (2) The application must be made: (a) within 28 days after written notice of the delegate decision is given to the affected person; or (b) by any later date allowed by the Director. -- 52 of 72 -- Part 10 Review of decisions Kava Management Act 1998 47 (3) The application must: (a) be in the approved form; and (b) be accompanied by the fee prescribed by regulation; and (c) state the grounds on which it is made and the facts relied on to establish the grounds. 81 Effect of application on delegate decision (1) The making of the application does not stay the operation of the delegate decision. (2) Despite subsection (1), the Director may stay the operation of the delegate decision pending completion of the review. 82 Director to consider application (1) On receipt of the application, the Director must review the delegate decision. (2) Despite subsection (1), if satisfied the application is frivolous or vexatious, the Director may reject the application without reviewing the delegate decision. 82A Conducting and deciding review (1) In reviewing the delegate decision, the Director must: (a) take into account any matter that this Act requires the Director to take into account in reviewing the decision; and (b) follow the procedures for review determined by the Director; and (c) comply with the rules of natural justice. (2) After reviewing the delegate decision, the Director must: (a) affirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute a new decision. -- 53 of 72 -- Part 11 Miscellaneous Kava Management Act 1998 48 82B Notice of decision on review (1) As soon as practicable after making a decision under section 82A, the Director must give written notice of the decision to the following persons: (a) the applicant; (b) any other affected person. (2) The notice must state the following: (a) the Director's decision and the reasons for it; (b) details of any right the person has under this Act to apply for a review of, or to appeal, the Director's decision. 82C Application to NTCAT for review of Director's decision (1) Subject to subsection (2), an affected person for a reviewable decision may apply to NTCAT for review of the decision. (2) An affected person may only apply to NTCAT once the person has exhausted any other available avenue of review under this Division. Note for section 82C A delegate decision must be reviewed by the Director under this Division before an application is made to NTCAT. Part 11 Miscellaneous 83 Duplicate licence Where the Director is satisfied that a licence has been destroyed, lost or stolen, the Director may, on the application of the licensee in the approved form and on payment of the prescribed fee, issue a duplicate licence to the licensee. 83A Approved forms The Director may approve forms for this Act. 84 Delivery, lodgement or issue of applications etc. A document that is required or permitted to be given, delivered, issued to or lodged with a person under this Act may be given, delivered, issued or lodged by post, facsimile transmission or electronic mail transmission. -- 54 of 72 -- Part 11 Miscellaneous Kava Management Act 1998 49 85 Authorisation for research purposes etc. (1) The Chief Health Officer may in writing, and subject to the conditions he or she thinks fit, authorise a person to possess, cultivate, manufacture or produce kava for the purposes of medical or scientific research. (1A) The Director may, in writing, authorise a person to possess, consume, cultivate, manufacture or produce kava for the purposes of medical research, forensic research, scientific research, study, education or consumer testing. (2) An authorisation of a body corporate under subsection (1) or (1A) is to be taken to authorise each person who is directly involved in the research to which it relates to possess, cultivate or produce kava in accordance with, and subject to the conditions (if any) of, the authorisation on behalf of the body corporate. (3) A person authorised under this section: (a) must comply with and not contravene an authorisation under this section; and (b) if acting in accordance with the authorisation, does not commit an offence against this Act. (4) An authorisation under this section may authorise a person to possess kava that has been forfeited to the Territory under an order of a court under Part 5. 86 Undercover operations (1) A member of the Police Force of or above the rank of Commander may, in writing, and subject to the conditions he or she thinks fit, authorise another member of the Police Force or another person who is not a member of the Police Force to: (a) acquire or supply kava; or (b) have kava in the member's or person's possession, for the purpose of detecting the commission of an offence against this Act. (2) Without limiting the generality of section 28, a member of the Police Force or other person authorised under subsection (1) may, in the course of acting in accordance with his or her authorisation, acquire, supply or possess kava for the purpose of detecting the commission of an offence against this Act. -- 55 of 72 -- Part 11 Miscellaneous Kava Management Act 1998 50 (3) A member of the Police Force or other person who acquires kava in the course of acting in accordance with an authorisation under subsection (1) must, as soon as reasonably possible after acquiring the kava: (a) deliver it to another member of the Police Force; or (b) supply the kava in accordance with the authorisation. 87 Power of police The powers conferred by this Act on a member of the Police Force, including the Commissioner of Police, are in addition to and not in derogation of any other power he or she may have under any other law in force in the Territory. 88 Acquisition to be on just terms Where the application of a provision of this Act or a regulation made under this Act would, but for this section, result in an acquisition of property otherwise than on just terms, the person from whom the property is acquired is entitled to receive just compensation for the acquisition and a court of competent jurisdiction may determine the amount of the compensation or make the order that, in its opinion, is necessary to ensure that the acquisition is on just terms. 89 Regulations (1) The Administrator may make regulations, not inconsistent with this Act, prescribing matters that are: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Without limiting the generality of subsection (1), the Regulations may provide for: (a) the fees payable in relation to matters under this Act; (c) the information to be provided by a person making an application under this Act in support of the application; (d) the size of the notice of an application published in a newspaper under Part 8; (e) the criteria establishing eligibility for the grant of a licence; -- 56 of 72 -- Part 11 Miscellaneous Kava Management Act 1998 51 (f) the conditions that may be imposed on a licence and the matters to be taken into account by the Director in determining which of the conditions to impose on a licence; (g) the manner, form and content of records and documents to be kept and lodged by a licensee; (h) the keeping of registers relating to licences issued and licensees; (j) the packaging of kava; (k) the regulation or control of the pricing of kava; (m) the prohibition, regulation or control of the advertising, marketing and promotion of kava; (n) the prohibition or regulation of the production of kava and the substances that may be added to kava for supply and the control of the quality of kava for supply; (p) the handling, storage and destruction of kava seized and removed under this Act; (q) the sampling, analysis and examination of kava; (r) the erection of signs to indicate that an area is a licence area and the markings to appear on the signs; (s) the designation of an offence against a regulation as a regulatory offence; and (t) prescribing penalties not exceeding 100 penalty units or, in the case of a body corporate, 500 penalty units for offences against the Regulations. (3) The Regulations may apply, adopt, incorporate or apply by reference, either wholly or in part or with or without modification, a standard, code, specification or method, as in force at a particular time or as in force from time to time, prescribed or published by an authority or body, whether or not a Territory authority or body. (4) A code, standard or specification applied, adopted or incorporated under this section may require anything referred to in the code, standard or specification to be in accordance with another code, standard or specification the code, standard or specification refers to. -- 57 of 72 -- Part 12 Transitional matters for Licensing (Director-General) Act 2014 Division 1 Definitions Kava Management Act 1998 52 (5) The Minister: (a) must cause a copy of each code, standard and specification adopted, incorporated or applied under subsection (3), and each code, standard and specification referred to in the first- mentioned code, standard or specification, to be made available for inspection by members of the public at the office of the Director, without charge, during normal office hours; and (b) may cause copies of each code, standard, and specification adopted, incorporated or applied under subsection (3), and each code, standard and specification referred to the first- mentioned code, standard or specification (or a part of the code, standard or specification referred to), to be available for purchase by members of the public on payment of the charge the Director requires. Part 12 Transitional matters for Licensing (Director- General) Act 2014 Division 1 Definitions 90 Definitions In this Part: 2014 Acts means the Licensing (Director-General) Act 2014 and 2014 Amending Act. 2014 Amending Act means the Licensing (Repeals and Consequential Amendments) Act 2014. commencement means the commencement of section 22 of the Licensing (Director-General) Act 2014. Commission means the Commission as defined in section 3 of the NTLC Act. NTLC Act means the Northern Territory Licensing Commission Act as in force immediately before the commencement. NTLC Director means the Director as defined in section 3 of the NTLC Act. old legislation means the NTLC Act and this Act, as in force immediately before the commencement. -- 58 of 72 -- Part 12 Transitional matters for Licensing (Director-General) Act 2014 Division 2 Applications Kava Management Act 1998 53 Division 2 Applications 91 Application to Commission – not yet considered (1) This section applies if, before the commencement: (a) an application had been made under this Act for a decision to be made by the Commission; but (b) the Commission had not commenced active consideration of the application. (2) The application: (a) is taken to be an application made on the commencement for the decision to be made by the Director-General; and (b) must be dealt with and determined in accordance with this Act as amended by the 2014 Amending Act. Note for section 91 The Director-General's decision on the application will be a decision made after the commencement and may therefore be a reviewable decision or a decision to which Part 3 of the Licensing (Director-General) Act 2014 applies. 92 Application to Commission – under active consideration (1) This section applies if, before the commencement: (a) an application had been made under this Act for a decision to be made by the Commission and the Commission had commenced active consideration of the application; but (b) the Commission had not made a decision. (2) The Commission must deal with and determine the application in accordance with the old legislation as if the 2014 Acts had not commenced. (3) However, the Commission's decision is then taken to have been made by the Director-General. Note for section 92(3) As the decision will be made after the commencement and will be taken to be a decision of the Director-General, it may be a reviewable decision. 93 Active consideration Regulations may make provision for determining when active consideration of an application commences for this Division. -- 59 of 72 -- Part 12 Transitional matters for Licensing (Director-General) Act 2014 Division 4 Complaints and applications to cancel licence Kava Management Act 1998 54 Division 3 Review of decisions 94 New review regime applies to post-commencement decisions Part 10, as amended by the 2014 Amending Act, applies only in relation to decisions made after the commencement. Division 4 Complaints and applications to cancel licence 95 New complaints regime applies to post-commencement complaints Subject to section 96, Part 9, Division 1 as amended by the 2014 Amending Act applies only in relation to complaints made after the commencement. 96 Complaint made before commencement – pending action (1) This section applies if, before the commencement: (a) a complaint had been made under section 73, as then in force; but (b) the NTLC Director had not taken action under section 73(3)(c), as then in force, in relation to the complaint. (2) The complaint: (a) is taken to have been made to the Director-General on the commencement; and (b) must be dealt with and determined in accordance with this Act as amended by the 2014 Amending Act. Note for section 96 The Director-General's decision on the complaint will be a decision made after the commencement and may therefore be a reviewable decision or a decision to which Part 3 of the Licensing (Director-General) Act 2014 applies. 97 Complaint made before commencement – complaint being dealt with (1) This section applies if, before the commencement: (a) the NTLC Director had forwarded a complaint to the Commission under section 73(3)(c), as then in force; but (b) the Commission had not made a determination about the complaint under section 74, as then in force. -- 60 of 72 -- Part 12 Transitional matters for Licensing (Director-General) Act 2014 Division 5 General matters Kava Management Act 1998 55 (2) The Commission and NTLC Director must deal with and determine the complaint in accordance with the old legislation as if the 2014 Acts had not commenced. (3) If the Commission determines a complaint as mentioned in subsection (2): (a) the determination has effect as if it had been made before the commencement; and (b) Part 10, as amended by the 2014 Amending Act, does not apply in relation to the determination. 98 Application for cancellation made before commencement (1) This section applies if, before the commencement: (a) the NTLC Director had made an application to the Commission under section 77, as then in force; but (b) the Commission had not determined the application. (2) The Commission must deal with and determine the application in accordance with the old legislation as if the 2014 Acts had not commenced. (3) If the Commission determines an application as mentioned in subsection (2): (a) the determination has effect as if it had been made before the commencement; and (b) Part 10, as amended by the 2014 Amending Act, does not apply in relation to the determination. Division 5 General matters 99 Continuation of ongoing documents and things (1) This section applies if: (a) before the commencement, a power or function was conferred by this Act on an NTLC entity; and (b) on the commencement, the power or function (or a substantially similar power or function) is conferred on the Director-General. -- 61 of 72 -- Part 12 Transitional matters for Licensing (Director-General) Act 2014 Division 5 General matters Kava Management Act 1998 56 (2) On the commencement, an ongoing document continues with the same force and effect as if it had been issued by, or given to, the Director-General. (3) On the commencement, an ongoing thing continues with the same force and effect as if it had been done by, or in relation to, the Director-General. (4) This section applies subject to the other provisions of this Part and Part 5, Division 2 of the Licensing (Director-General) Act 2014. (5) In this section, a reference to something done before the commencement includes a reference to something done after the commencement in accordance with this Part as if it had been done before the commencement. (6) In this section: NTLC entity means the Commission, the NTLC Director or the Chairperson (as defined in section 3 of the NTLC Act). ongoing document means a document that: (a) was issued by, or given to, the NTLC entity before the commencement in or for the exercise of the power or performance of the function; and (b) immediately before the commencement, had ongoing effect. ongoing thing means a thing that: (a) was done by, or in relation to, the NTLC entity before the commencement in or for the exercise of the power or performance of the function; and (b) immediately before the commencement, had ongoing effect. -- 62 of 72 -- Part 14 Transitional matters for Licensing (Director) Repeal Act 2020 Kava Management Act 1998 57 Part 13 Transitional matters for Statute Law Amendment (Directors' Liability) Act 2015 100 Offences – before and after commencement (1) Section 26, as inserted by the Statute Law Amendment (Directors' Liability) Act 2015, (the new section) applies in relation to a relevant offence committed by a body corporate after the commencement of Part 2, Division 18 of that Act (the commencement) only if: (a) all the conduct constituting the relevant offence occurred after the commencement; and (b) all the conduct of the executive officer constituting the offence against the new section occurred after the commencement. (2) Section 26, as in force before the commencement: (a) continues to apply in relation to offences committed by a body corporate before the commencement; and (b) applies in relation to relevant offences committed by a body corporate after the commencement to which, as a result of subsection (1), the new section does not apply. Part 14 Transitional matters for Licensing (Director) Repeal Act 2020 101 Definitions In this Part: commencement means the commencement of section 3 of the Licensing (Director) Repeal Act 2020. Director means the Director of Licensing appointed under the repealed Act before its repeal. repealed Act means the Licensing (Director) Act 2014. 102 Applications to be decided by Director If an application is made to the Director for a decision to be made under this Act but the decision is not made before the commencement, the application must be decided by the Director as if it was made to the Director. -- 63 of 72 -- Part 14 Transitional matters for Licensing (Director) Repeal Act 2020 Kava Management Act 1998 58 103 Director to complete delegate decision reviews If an application is made to the Director for a review under Part 3 of the repealed Act of a delegate decision made under this Act, but the review is not completed before the commencement, the review must be conducted by the Director as if the application was made to the Director. 104 Continuation of instruments, appointments, documents etc. (1) A statutory instrument or other instrument, an appointment, an approved form or any other document made or issued by the Director under this Act or the repealed Act before the commencement continues in force and is taken after the commencement to have been made or issued by the Director. (2) Without limiting subsection (1), a delegation by the Director under this Act or the repealed Act in force immediately before the commencement is taken after the commencement to be a delegation by the Director and continues in force until amended or revoked under this Act. -- 64 of 72 -- Schedule 1 Areas of land that may not be declared to be licensed areas Kava Management Act 1998 59 Schedule 1 Areas of land that may not be declared to be licensed areas section 53 PART A Area at Jabiru The area comprising the town of Jabiru, constituted and defined by Proclamation made under section 111 of the Crown Lands Act 1992, described in the Schedule to the instrument made under that section on 27 April 1982 and published in Gazette No. G18 dated 7 May 1982 at page 7. PART B Area at Nhulunbuy All those parcels of land at Nhulunbuy in the Northern Territory of Australia containing a total area of 679.83 hectares more or less, being Northern Territory Portions 1192 and 1316 (which include the town centre, the main residential areas and the main industrial area) and being more particularly delineated on Survey Plans A708 and A952 lodged with the Surveyor General, Darwin. -- 65 of 72 -- Schedule 2 Reviewable decisions Kava Management Act 1998 60 Schedule 2 Reviewable decisions section 78 Section Decision 64 Decision to issue, or refuse to grant, licence 65 Decision to renew, or refuse to renew, licence 67 Decision to vary conditions of licence 76 Decision to suspend, impose condition on or vary condition of licence 77 Decision to cancel licence -- 66 of 72 -- ENDNOTES Kava Management Act 1998 61 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Kava Management Act 1998 (Act No. 33, 1998) Assent date 11 May 1998 Commenced 21 May 1998 (Gaz S17, 21 May 1998) Kava Management Amendment Act 1999 (Act No. 53, 1999) Assent date 4 December 1999 Commenced 4 December 1999 Kava Management Amendment Act (No. 2) 1999 (Act No. 66, 1999) Assent date 17 December 1999 Commenced 14 February 2000 (s 2, s 2 Northern Territory Licensing Commission Act 1999 (Act No. 67, 1999) and Gaz G5, 9 February 2000, p 6) Kava Management Amendment Act 2000 (Act No. 66, 2000) Assent date 14 December 2000 Commenced 19 February 2001 (Gaz S3, 13 January 2001) Statute Law Revision Act 2001 (Act No. 3, 2001) Assent date 22 March 2001 Commenced 22 March 2001 Kava Management Amendment Act 2003 (Act No. 15, 2003) Assent date 29 May 2003 Commenced 12 November 2003 (Gaz G45, 12 November 2003, p 3) Statute Law Revision Act 2004 (Act No. 18, 2004) Assent date 15 March 2004 Commenced 5 May 2004 (s 2(1), s 2 Associations Act 2003 (Act No. 56, 2003) and Gaz G18, 5 May 2004, p 2) Statute Law Revision Act (No. 2) 2004 (Act No. 54, 2004) Assent date 15 September 2004 Commenced 27 October 2004 (Gaz G43, 27 October 2004, p 3) -- 67 of 72 -- ENDNOTES Kava Management Act 1998 62 Police Administration Amendment Act 2007 (Act No. 29, 2007) Assent date 12 December 2007 Commenced pt 1 and ss 3 and 15: 1 December 1996 (s 2); pt 4: nc (rep s 9, Act No. 12, 2009: 24 June 2009); rem: 19 December 2007 (Gaz G51, 19 December 2007, p 6) Amending Legislation Justice and Other Legislation Amendment Act 2009 (Act No. 12, 2009) Assent date 26 May 2009 Commenced 24 June 2009 (Gaz G25, 24 June 2009, p 2) Local Government (Consequential Amendments) Act 2008 (Act No. 28, 2008) Assent date 14 November 2008 Commenced 1 July 2008 (s 2) Justice Legislation Amendment (Penalties) Act 2010 (Act No. 12, 2010) Assent date 20 May 2010 Commenced 1 July 2010 (Gaz G24, 16 June 2010, p 2) Public and Environmental Health Act 2011 (Act No. 7, 2011) Assent date 16 March 2011 Commenced 1 July 2011 (Gaz S28, 3 June 2011) Local Government Amendment Act 2013 (Act No. 28, 2013) Assent date 8 November 2013 Commenced 8 November 2013 Local Government Amendment Act 2014 (Act No. 19, 2014) Assent date 2 June 2014 Commenced s 16: 1 July 2014; s 18: 1 December 2014; rem: 2 June 2014 (s 2) Correctional Services (Related and Consequential Amendments) Act 2014 (Act No. 27, 2014) Assent date 4 September 2014 Commenced 9 September 2014 (Gaz S80, 9 September 2014, p 2) Licensing (Repeals and Consequential Amendments) Act 2014 (Act No. 44, 2014) Assent date 5 December 2014 Commenced 1 January 2015 (Gaz S130, 19 December 2014, p 2) Local Government Legislation Amendment Act 2015 (Act No. 8, 2015) Assent date 23 April 2015 Commenced pt 4, div 3: 17 February 2016 (Gaz G7, 17 February 2016, p 2); rem: 23 April 2015 (s 2) Statute Law Amendment (Directors' Liability) Act 2015 (Act No. 26, 2015) Assent date 18 September 2015 Commenced 14 October 2015 (Gaz G41, 14 October 2015, p 3) Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) Assent date 6 April 2016 Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016) -- 68 of 72 -- ENDNOTES Kava Management Act 1998 63 Liquor Act 2019 (Act No. 29, 2019) Assent date 3 September 2019 Commenced 1 October 2019 (Gaz G39, 25 September 2019, p 2) Statute Law Revision and Repeals Act 2019 (Act No. 33, 2019) Assent date 6 November 2019 Commenced pts 2 and 3: 11 December 2019 (Gaz G50, 11 December 2019, p 2); rem: 7 November 2019 (s 2) Local Government Act 2019 (Act No. 39, 2019) Assent date 13 December 2019 Commenced pt 8.6: 1 July 2022; rem: 1 July 2021 (Gaz S27, 30 June 2021) Amending Legislation Statute Law Revision Act 2020 (Act No. 26, 2020) Assent date 19 November 2020 Commenced 20 November 2020 (s 2) Local Government Amendment Act 2021 (Act No. 15, 2021) Assent date 25 May 2021 Commenced 26 May 2021 (s 2) Licensing (Director-General) Repeal Act 2020 (Act No. 4, 2020) Assent date 9 March 2020 Commenced 14 April 2020 (Gaz G13, 1 April 2020, p 2) Statute Law Revision Act 2020 (Act No. 26, 2020) Assent date 19 November 2020 Commenced 20 November 2020 (s 2) 3 SAVINGS AND TRANSITIONAL PROVISIONS s 6 Kava Management Amendment Act (No. 2) 1999 (Act No. 66, 1999) 4 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 3, 29, 49, 53, 63, 68, 78, 79, 80, 81, 91, 96 and 99 and Sch 1. 5 LIST OF AMENDMENTS lt amd No. 66, 2000, s 4 s 2A ins No. 15, 2003, s 4 s 3 amd No. 53, 1999, s 3; No. 66, 1999, s 4; No. 66, 2000, s 5; No. 18, 2004, s 3; No. 28, 2008, s 12; No. 7, 2011, s 140; No. 19, 2014, s 26; No. 44, 2014, s 31; No. 29, 2019, s 374; No. 33, 2019, s 49; No. 4, 2020, s 28; No. 26, 2020, s 3 s 6 amd No. 66, 1999, s 5 rep No. 44, 2014, s 32 -- 69 of 72 -- ENDNOTES Kava Management Act 1998 64 s 7 amd No. 66, 1999, s 5 sub No. 44, 2014, s 32 amd No. 4, 2020, s 29 s 8 amd No. 44, 2014, s 42; No. 4, 2020, s 30 pt 1A hdg ins No. 4, 2020, s 31 ss 8A – 8D ins No. 4, 2020, s 31 s 9 amd No. 66, 2000, s 18; No. 12, 2010, s 3 s 11 amd No. 66, 1999, s 5; No. 44, 2014, s 42; No. 4, 2020, s 36 s 12 amd No. 66, 2000, s 18; No. 12, 2010, s 3 s 12A ins No. 66, 2000, s 6 amd No. 12, 2010, s 3 s 13 amd No. 66, 2000, s 18; No. 12, 2010, s 3 s 14 amd No. 12, 2010, s 3 s 15 amd No. 66, 2000, s 18; No. 15, 2003, s 5; No. 12, 2010, s 3 s 16 amd No. 66, 2000, s 18; No. 12, 2010, s 3 s 17 amd No. 66, 2000, ss 7 and 18; No. 12, 2010, s 3 ss 18 – 22 amd No. 66, 2000, s 18; No. 12, 2010, s 3 s 26 sub No. 26, 2015, s 61 s 27 amd No. 53, 1999, s 4 s 28 amd No. 66, 1999, s 5; No. 44, 2014, s 42; No. 4, 2020, s 36 pt 2A hdg ins No. 15, 2003, s 6 ss 28A – 28B ins No. 15, 2003, s 6 amd No. 44, 2014, s 42; No. 4, 2020, s 36 s 29 amd No. 29, 2019, s 375 s 30 amd No. 66, 2000, s 18; No. 12, 2010, s 3; No. 44, 2014, s 42 s 31 amd No. 44, 2014, s 42; No. 4, 2020, s 36 s 32 amd No. 29, 2007, s 41 s 35 amd No. 8, 2016, s 45 s 37 amd No. 66, 1999, s 5; No. 44, 2014, s 42; No. 8, 2016, s 45; No. 4, 2020, s 36 ss 38 – 41 amd No. 8, 2016, s 45 s 43 amd No. 15, 2003, s 7; No. 8, 2016, s 45 s 45 amd No. 66, 1999, s 5 rep No. 15, 2003, s 8 pt 6 div 1 hdg amd No. 66, 1999, s 5; No. 44, 2014, s 42 sub No. 4, 2020, s 32 s 46 amd No. 66, 1999, s 5; No. 44, 2014, s 42; No. 4, 2020, s 36 s 47 amd No. 66, 1999, s 5; No. 54, 2004, s 7; No. 44, 2014, s 42; No. 4, 2020, s 36 s 49 amd No. 66, 1999, s 5; No. 44, 2014, s 42; No. 8, 2016, s 45; No. 4, 2020, s 36 ss 50 – 52 amd No. 66, 1999, s 5; No. 44, 2014, s 42; No. 4, 2020, s 36 pt 7 div 1 hdg ins No. 66, 2000, s 8 s 53 amd No. 66, 2000, s 9; No. 28, 2008, s 13; No. 28, 2013, s 61; No. 19, 2014, s 26; No. 44, 2014, s 42; No. 39, 2019, s 370 pt 7 div 2 hdg ins No. 66, 2000, s 10 s 54 amd No. 66, 2000, s 11; No. 15, 2003, s 9; No. 28, 2008, s 14; No. 28, 2013, s 61; No. 19, 2014, s 26; No. 39, 2019, s 370 s 55 amd No. 66, 2000, s 12; No. 15, 2003, s 10 s 56 amd No. 15, 2003, s 11 s 57 amd No. 66, 2000, s 13; No. 15, 2003, s 12; No. 19, 2014, s 26 s 58 amd No. 15, 2003, s 13 pt 7 div 3 hdg ins No. 66, 2000, s 14 -- 70 of 72 -- ENDNOTES Kava Management Act 1998 65 s 58A ins No. 66, 2000, s 14 amd No. 44, 2014, s 42; No. 4, 2020, s 36 s 58B ins No. 66, 2000, s 14 s 58C ins No. 66, 2000, s 14 amd No. 15, 2003, s 14; No. 19, 2014, s 26; No. 44, 2014, s 42; No. 8, 2015, s 82; No. 4, 2020, s 36 s 58D ins No. 66, 2000, s 14 amd No. 15, 2003, s 15; No. 28, 2008, s 15; No. 28, 2013, s 61; No. 19, 2014, s 26; No. 44, 2014, s 42; No. 4, 2020, s 36; No. 39, 2019, s 370 s 59 amd No. 66, 2000, s 15; No. 15, 2003, s 16; No. 44, 2014, s 42; No. 4, 2020, s 36 s 59A ins No. 15, 2003, s 17 amd No. 44, 2014, s 42; No. 4, 2020, s 36 s 60 amd No. 66, 1999, s 5; No. 15, 2003, s 18; No. 44, 2014, s 42; No. 4, 2020, s 36 s 61 amd No. 66, 1999, s 5; No. 15, 2003, s 19; No. 19, 2014, s 26; No. 44, 2014, s 42; No. 4, 2020, s 36 s 62 amd No. 66, 1999, s 5; No. 15, 2003, s 20; No. 44, 2014, s 42; No. 4, 2020, s 36 s 63 amd No. 66, 1999, s 5; No. 3, 2001, s 8; No. 15, 2003, s 21; No. 44, 2014, s 42; No. 4, 2020, s 36 s 64 amd No. 66, 1999, s 5; No. 3, 2001, s 8; No. 15, 2003, s 22 sub No. 44, 2014, s 33 amd No. 4, 2020, s 36 s 65 amd No. 66, 1999, s 5; No. 15, 2003, s 23; No. 44, 2014, s 34; No. 4, 2020, s 36 s 65A ins No. 66, 2000, s 16 s 65B ins No. 15, 2003, s 24 s 65C ins No. 15, 2003, s 24 amd No. 12, 2010, s 3 s 67 amd No. 66, 1999, s 5; No. 44, 2014, s 42; No. 4, 2020, s 36; No. 26, 2020, s 3 s 68 amd No. 66, 1999, s 5 sub No. 44, 2014, s 35 amd No. 4, 2020, s 36 ss 69 – 70 rep No. 44, 2014, s 35 s 71 amd No. 66, 1999, s 5; No. 44, 2014, s 42; No. 4, 2020, s 36 s 72 amd No. 44, 2014, s 42; No. 4, 2020, s 36 s 73 amd No. 66, 1999, s 5; No. 66, 2000, s 17 sub No. 44, 2014, s 36 amd No. 4, 2020, s 36 s 74 amd No. 66, 1999, s 5 rep No. 44, 2014, s 36 s 75 amd No. 44, 2014, s 42; No. 4, 2020, s 36 s 76 amd No. 15, 2003, s 25; No. 44, 2014, s 37; No. 4, 2020, s 36 s 77 amd No. 66, 1999, s 5; No. 27, 2014, s 57 sub No. 44, 2014, s 38 amd No. 4, 2020, s 36 pt 10 hdg ins No. 44, 2014, s 38 s 78 sub No. 44, 2014, s 38; No. 4, 2020, s 33 pt 9 div 4 hdg rep No. 44, 2014, s 38 s 79 sub No. 44, 2014, s 38; No. 4, 2020, s 33 pt 10 hdg rep No. 44, 2014, s 38 s 80 sub No. 44, 2014, s 38; No. 4, 2020, s 33 s 81 amd No. 66, 1999, s 5 sub No. 44, 2014, s 38; No. 4, 2020, s 33 -- 71 of 72 -- ENDNOTES Kava Management Act 1998 66 s 82 rep No. 44, 2014, s 38 ins No. 4, 2020, s 33 ss 82A – 82C ins No. 4, 2020, s 33 s 83 amd No. 44, 2014, s 42; No. 4, 2020, s 36 s 83A ins No. 44, 2014, s 39 amd No. 4, 2020, s 36 s 84 amd No. 15, 2003, s 26 s 85 amd No. 15, 2003, s 27; No. 44, 2014, s 42; No. 8, 2016, s 45; No. 4, 2020, s 36 s 89 amd No. 66, 2000, s 18; No. 15, 2003, s 28; No. 44, 2014, s 42; No. 4, 2020, s 36 pt 12 hdg ins No. 44, 2014, s 40 pt 12 div 1 hdg ins No. 44, 2014, s 40 s 90 ins No. 44, 2014, s 40 pt 12 div 2 hdg ins No. 44, 2014, s 40 ss 91 – 93 ins No. 44, 2014, s 40 pt 12 div 3 hdg ins No. 44, 2014, s 40 s 94 ins No. 44, 2014, s 40 pt 12 div 4 hdg ins No. 44, 2014, s 40 ss 95 – 98 ins No. 44, 2014, s 40 pt 12 div 5 hdg ins No. 44, 2014, s 40 s 99 ins No. 44, 2014, s 40 pt 13 hdg ins No. 26, 2015, s 62 s 100 ins No. 26, 2015, s 62 pt 14 hdg ins No. 4, 2020, s 34 ss 101 – 104 ins No. 4, 2020, s 34 sch 1 amd No. 44, 2014, s 42 sch 2 ins No. 44, 2014, s 41 amd No. 4, 2020, s 35 -- 72 of 72 --