EXPLANATORY STATEMENT
Comptroller-General of Customs (Export Restriction of drug like substances) Guidelines 2020.
National Health Act 1953
Background
- Division 4D of Part VII of the National Health Act 1953 (‘the Act’) imposes restrictions on the export of drug like substances such that a person cannot take Pharmaceutical Benefits Scheme (PBS) subsidised medicines overseas, by carriage or consignment, other than for personal use or for the use of someone who is accompanying the person.
2. Division 4D of the Act also establishes processes and provides certain enforcement related powers to, and obligations for, Customs officers, the Comptroller-General of Customs and the Chief Executive Medicare to deal with restricted drug like substances to be carried overseas in personal baggage or consigned for export.
3. As part of these processes, subsection 99ZS(1) of the Act enables the Comptroller-General of Customs, by legislative instrument, to issue guidelines for the performance of functions and duties, and the exercise of powers of Customs officers in relation to matters arising under Division 4D of the Act.
4. The Legislation Act 2003 (the Legislation Act) provides for all legislative instruments, other than exempt instruments, to automatically repeal (sunset) progressively in accordance with the timeframes set out in section 50 of that Act. The timeframes are the first of April or the first of October, falling on or after the tenth anniversary of registration of an instrument (unless the instrument was registered on 1 January 2005).
5. If a legislative instrument is not remade, it will cease to have any legal effect from the date it sunsets.
6. The guidelines made by the Comptroller-General of Customs under subsection 99SZ(1) of the Act (the Guidelines for Detention of, Dealing with, and Disposal of Drug like substances, made on 12 February 2001) sunset on 1 October 2017. The Comptroller-General of Customs (Export Restriction of drug like substances) Guidelines 2020 (the Guidelines) will replace the previous guidelines.
7. In addition, subsection 99ZS(2) provides that the Chief Executive Medicare may, by legislative instrument, issue complementary guidelines for the performance of the functions and duties, and for the exercise of the powers of the Chief Executive Medicare, or Services Australia employees, in relation to matters arising under Division 4D of the Act. These guidelines are the National Health (Export Restriction – Chief Executive Medicare) Guidelines 2020, which were made by the Chief Executive Medicare on 23 April 2020 and registered on 28 April 2020. The previous guidelines made by the Chief Executive Medicare also sunset on 1 October 2017.
Purpose and operation
8. The Guidelines set out the administrative processes to be followed by Customs officers in performing functions and duties, and exercising powers, under Division 4D of the Act relating to drug like substances, including in relation to:
- the examination and inspection of items of baggage, and articles consigned for export;
- the detention of drug like substances;
- the transfer of detained drug like substances; and
- the copying, retaining, transferring dealing with documents relating to drug like substances.
9. The content of the Guidelines is in similar terms as the previous Guidelines. The key differences are that the Guidelines:
- contain minor and machinery updates including name changes to organisations and office-bearers; and
- update guidance on the detention of drug like substances by Customs officers, and the transfer of detained drug like substances and documents to the Chief Executive Medicare.
Commencement
10. The Guidelines will commence on the first day it is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003. The National Health (Export Restriction – Chief Executive Medicare) Guidelines 2020 have the same commencement provision.
Consultation
11. The Guidelines have been developed in consultation with the Services Australia, which assists the Chief Executive Medicare to perform certain functions under Division 4D of the Act. No further consultation was undertaken as the Guidelines only contain administrative processes to be followed by Customs officers. The changes to the Guidelines from the previous guidelines are minor and machinery in nature and do no substantially alter existing arrangements.
ATTACHMENT A – to Explanatory Statment
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Comptroller-General of Customs (Export Restriction of drug like substances) Guidelines 2020.
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
Division 4D of Part VII of the National Health Act 1953 (‘the Act’) imposes restrictions on the export of drug like substances such that a person cannot take Pharmaceutical Benefits Scheme (PBS) subsidised medicines overseas, by carriage or consignment, other than for personal use or for the use of someone who is accompanying the person.
Division 4D of the Act also establishes processes and provides certain powers to Customs officers, the Comptroller-General of Customs and the Chief Executive Medicare to deal with restricted drug like substances to be carried overseas in personal baggage or consigned for export.
As part of these processes, subsection 99ZS(1) of the Act enables the Comptroller-General of Customs, by legislative instrument, to issue guidelines for the performance of functions and duties, and the for exercise of powers that can be exercised by Customs officers in relation to matters arising under Division 4D of the Act.
These guidelines contain administrative processes to be followed by Customs officers in respect of the performance of those functions.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights, as it does not raise any human rights issues.