Drugs, Poisons and Controlled Substances Act 1981 - low THC cannabis authority (review)

This page provides general information and shouldn't be considered as legal advice. Seek legal advice if you're unsure about your legal rights. Be aware that the law can change.

Cases we can hear

You may be able to apply to VCAT to review a decision by the Secretary to:

• refuse to issue an authority to you to cultivate and process low-THC cannabis
• refuse to renew an authority held by you to cultivate and process low-THC cannabis
• suspend, cancel or amend an authority held by you to cultivate and process low-THC cannabis.

Other related applications

Under this Act, VCAT can also review some decisions related to:

• poppy cultivation
• poisons and controlled substances.

Legislation that gives VCAT the power to hear these applications

Section 69B(1) of the Drugs, Poisons and Controlled Substances Act 1981

Documents you need to apply

If you have a decision document, use it to help you complete the VCAT application form and attach a copy of the document to your application.

Time limits

You must make your application within 28 days from when:

• the decision was made, or
• if you have requested a statement of reasons under the Victorian Civil and Administrative Tribunal Act, the statement of reasons is given to you or you are informed that a statement of reasons will not be given.

You may be able to apply for an extension to this time limit.

What does VCAT consider when making a decision?

VCAT may take into consideration the same matters the Secretary has to consider when determining an application.

The Act states that, in order to prevent criminal activity in the cultivation and processing of low-THC cannabis, the Secretary must not issue an authority to an applicant unless satisfied of all the following:

• the applicant or any associate of the applicant has within the 10 years preceding the application not been found guilty of a serious offence
• the applicant and each associate of the applicant is a suitable person to be concerned in or associated with the cultivation, processing, sale or supply of low-THC cannabis
• the applicant's property or premises will be suitable for the cultivation, processing, sale or supply of low-THC cannabis in relation to location, facilities and proposed security arrangements.

In particular, the Secretary may consider whether:

• the applicant and each associate of the applicant is of good repute, having regard to character, honesty and integrity
• in the case of an applicant that is not a natural person, the applicant has a satisfactory ownership, trust or corporate structure
• the applicant is of sound and stable financial background
• the applicant has any business association with any person or body who or which, in the opinion of the Secretary, is not of good repute, having regard to character, honesty and integrity
• each director, partner, trustee, executive officer and secretary and any other person determined by the Secretary to be associated or connected with the ownership, administration or management of the operations or business of the applicant is a suitable person to act in that capacity.

What can VCAT order?

Unless the relevant Act of Parliament gives us different powers, VCAT can:

• affirm the original decision, in which case the original decision will stand
• vary the decision
• set aside the decision and substitute our own decision
• set aside the decision and remit (send back) the matter for reconsideration by the decision maker giving directions or recommendations
• invite the decision-maker to reconsider their decision at any time during the case.

Protected information

Protected information means information used by police. This includes information that may identify a person who provided information to police or who has been involved in a police investigation. It could also include information which, if it was revealed, may compromise a police investigation, pose a risk to a police officer or is not otherwise in the public interest to be disclosed.

We must ask the Secretary whether the grounds for the refusal, suspension, cancellation or amendment were based on any protected information when VCAT receives an application to review a decision under section 69B of the Act.

Section 69BA to 69BE of the Act set out the special procedures where protected information is involved in the Secretary’s decision. You should read those sections carefully if such circumstances apply.

If, the Secretary informs VCAT that the decision was based on protected information, VCAT must appoint a barrister as special counsel to represent the interests of the applicant. The Chief Commissioner of Police will be joined as a party to the proceeding. VCAT will first determine whether the information is protected information in a hearing held in private. 

Any order made by VCAT must only state:

• whether the decision of the Secretary is upheld or overturned
• if the authority is not issued, granted or reinstated, that the applicant or each relevant person has failed to meet fit and proper person requirements.

We may publish reasons for our decision to the extent that those reasons do not relate to protected information.

At any time before a final decision has been made by VCAT in a review proceeding that involved protected information, the Chief Commissioner may request the Secretary to reconsider their decision without relying on the protected information. If such a request is made, the Chief Commissioner must advise VCAT and VCAT must remit the matter for reconsideration by the Secretary.

Apply

We can explain the application process and what the form is asking you for. Contact us to get support.

We can't give you legal advice. This means we can't tell you what to write in your application or recommend how to get the outcome you want.

Seek legal help if you're unsure about your options or need advice about your application.

Do I need a lawyer or professional representative?

You don't need to have legal or other professional representation to appear at VCAT. If you want to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission.

Be aware that the regulatory body in most cases uses legal representation.

If a barrister is appointed by VCAT as a special counsel to represent your interests, they may only represent you to the extent your interests relate to the protected information on which the decision is based. 

There are limitations on what instructions the special counsel can take from you and what information they can communicate to you. The special counsel may also be required to sign a confidentiality undertaking to VCAT.

Find legal services that may be able to assist you.

Access and privacy

VCAT hearings and files are usually public.

VCAT has limited authority to restrict who can access cases and files but, in certain circumstances, you can apply for confidentiality.