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

Administered by Department of the Treasury

Legislation au F2013L01584 Not in force Legislative Instrument

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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. 

 

 

Overview

The Competition and Consumer Act 2010 (CCA) was enacted to provide a comprehensive framework for consumer protection in Australia, aiming to ensure fair trading and competition, and to protect consumers from misleading or deceptive conduct. One significant aspect of the Act is its provision for interim bans on consumer goods that pose a significant risk to health and safety. The Assistant Treasurer, as a responsible Minister, can impose such interim bans under the Australian Consumer Law (ACL), which is Schedule 2 of the CCA. In June 2013, an interim ban on certain consumer goods containing synthetic drug substances was imposed due to the imminent risk of death, serious illness, or serious injury associated with their use. This interim ban was subsequently extended for an additional 30 days to provide New South Wales with more time to update its legislation, ensuring a coordinated national response to the dangers posed by these substances.

Scope and Application

The Consumer Protection Notice No. 5 of 2013, issued under the Competition and Consumer Act 2010, extends the interim ban on the supply of certain consumer goods containing synthetic drug substances, such as synthetic cannabinomimetics, NBOMe type substances, and synthetic cocaine type substances, which are proscribed by Schedule 9 of the Poisons Standard 2012. The interim ban applies to goods that pose a significant risk of causing death, serious illness, or serious injury if consumed. This legislation was enacted to address the imminent risk these substances posed to public health, overriding state-level interim bans where applicable and ensuring a unified national approach. The extension of the ban for an additional 30 days was deemed necessary due to the ongoing legislative updates in New South Wales aimed at aligning their drug laws with the Poisons Standard 2012. The interim ban is applicable across the Commonwealth, superseding state-specific regulations in instances where state laws did not adequately cover the proscribed substances. The legislative instrument is not subject to disallowance or sunsetting, ensuring its continued effect unless explicitly revoked.

Key Provisions

The main operative sections of the Consumer Protection Notice No. 5 of 2013 extend the interim ban on certain consumer goods containing synthetic drug substances. As per section 109(1)(a)(ii) of the Australian Consumer Law (ACL), a responsible Minister, including the Commonwealth Minister, can impose an interim ban on consumer goods if it appears that a reasonably foreseeable use of those goods may cause injury to any person. This interim ban can remain in force for 60 days as per section 111(1) of the ACL and can be extended by the responsible Minister for up to 30 days as per section 111(2). The Notice extends the ban period for an additional 30 days, bringing the total ban period to 90 days. The obligations imposed by this Act are primarily on the suppliers of the consumer goods containing synthetic drug substances. These suppliers are prohibited from supplying any goods that fall under the ban until the ban is lifted. Suppliers are expected to comply with the ban by ensuring that none of the listed synthetic drugs are included in the products they supply. This obligation extends to all forms of synthetic cannabinomimetic, NBOMe type substances, and synthetic cocaine type substances proscribed by Schedule 9 of the Poisons Standard 2012. There are significant penalties and consequences for breaching the interim ban. Such breaches can result in both civil and criminal liabilities. Under the Competition and Consumer Act 2010, supplying goods that are in breach of the interim ban can attract severe penalties. This includes substantial fines for corporations and imprisonment for individuals, with the exact penalties varying depending on the severity and intent of the breach. The Act does not specify the maximum penalties but indicates that they can be severe, reflecting the hazardous nature of the substances involved. The Act also emphasises the importance of compliance and the potential legal ramifications for non-compliance. The Commonwealth Minister, having assessed the imminent risk of death, serious illness or serious injury posed by these substances, has taken decisive action to protect consumers. The extension of the ban underscores the seriousness with which the government views the hazards associated with these synthetic drugs and highlights the importance of adhering to the regulatory framework designed to safeguard public health.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.