REPLACEMENT EXPLANATORY STATEMENT
Issued by the Authority of the Assistant Treasurer
Competition and Consumer Act 2010
Consumer Protection Notice No. 5 of 2013
Extension of the ban period for the interim ban on certain consumer goods containing synthetic drug substances
Background
Subsection 109(1)(a)(ii) of Schedule 2, the Australian Consumer Law (the ACL), to the Competition and Consumer Act 2010 (CCA) provides that a responsible Minister (including the Commonwealth Minister) may impose an interim ban on consumer goods of a particular kind, if it appears to the responsible Minister that a reasonably foreseeable use (including a misuse) of those goods will or may cause injury to any person.
Subsection 111(1) of the ACL provides for an interim ban on consumer goods to be imposed by a responsible Minister and remain in force for a period of 60 days. Subsection 111(2) of the ACL provides for an interim ban on consumer goods to be extended by the responsible Minister, prior to the interim ban ending, for a period of up to 30 days.
The Commonwealth Minister (the Assistant Treasurer) imposed an interim ban on certain consumer goods containing synthetic drug substances on 18 June 2013. It was registered on the Federal Register of Legislative Instruments on 18 June 2013.
Extension of the Interim Ban on Certain Consumer Goods Containing Synthetic Drug Substances
The interim ban applies to the supply of certain consumer goods containing psychoactive substances (generally referred to as synthetic drugs) that are a form of synthetic cannabinomimetic, NBOMe type substance, or synthetic cocaine type substance that are proscribed by Schedule 9 of the Poisons Standard 2012 as well as other named products believed to be synthetic drugs. The taking of unapproved psychoactive substances is hazardous to consumer’s health and may result in death, serious illness or serious injury.
The interim ban was initially made following the imposition of similar interim bans in both New South Wales and South Australia. The Assistant Treasurer decided that the imminent risk of death, serious illness or serious injury in relation to the use of these drugs warranted a national interim ban on their supply. The national interim ban was imposed without delay (as provided for under section 132J of the CCA) and overrode the state interim bans where they applied to the same goods.
The control of the supply of synthetic drug type substances is generally given effect through State and Territory drug laws. The national interim ban was imposed because New South Wales and Northern Territory did not, at that time, have drug laws that prohibited the supply of consumer goods containing synthetic drug substances. The imposition of the ban meant that the supply of these goods was prohibited while the New South Wales and Northern Territory governments took steps to update laws to include coverage of all substances that are proscribed by Schedule 9 of the Poisons Standard 2012.
The interim ban on the supply of certain consumer goods containing synthetic drug substances lapses on 16 August 2013. While the Northern Territory has updated its drug laws to prohibit the supply of substances proscribed by Schedule 9 of the Poisons Standard 2012, New South Wales requires additional time to put in place legislation to address these hazards and protect consumers. The Assistant Treasurer has therefore decided to extend the interim ban for a period of 30 days.
The interim ban was imposed via Consumer Protection Notice No. 3 of 2013 and is available on the ComLaw website - http://www.comlaw.gov.au/Details/F2013L01053
Consultation
Section 131E of the CCA provides that a notice made under section 111 of the ACL is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA). Section 17 of the LIA requires that the rule maker should consult prior to making a legislative instrument. Section 18 of the LIA outlines the circumstances where consultation may be unnecessary or inappropriate. An instrument which is of a minor or machinery nature and that does not substantially alter existing arrangements is an example where consultation is unnecessary or inappropriate (subsection 18(2)(a)).
The Legislative Instrument extending the interim ban for a period of 30 days is of a minor nature and does not significantly alter existing arrangements and therefore consultation has not been undertaken.
When the interim ban was imposed, the Assistant Treasurer decided that the banned substances created an imminent risk of death, serious illness or serious injury. The Assistant Treasurer decided and gave notice that the interim ban should be made without delay, as provided for under section 132J of the CCA. As a result, consultation did not take place prior to imposing the interim ban. However, after the interim ban was imposed, the Commonwealth Minister invited any person who supplied or proposed to supply goods which were captured under the interim ban to request a conference with the ACCC. A conference was not requested.
Commencement
The Legislative Instrument specifies that it commences on the day it is registered on the Federal Register of Legislative Instruments.
Disallowance
This legislative instrument is not subject to disallowance due to section 44 of the Legislation Act 2003.
Sunsetting
The legislative instrument is not subject to sunsetting due to section 54 of the Legislation Act 2003.
Period of Effect
This extension to the Interim Ban on Certain Consumer Goods Containing Synthetic Drug Substances is effective for a period of 30 days unless revoked.