EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS (NARCOTIC SUBSTANCES) REGULATIONS
STATUTORY RULES 1989 NO. 380
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR INDUSTRY, TECHNOLOGY AND COMMERCE
Section 270 of the Customs Act 1901 (“the Act”) provides in part that “The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act ...”
Subsection 4(1) of the Act provides that “Narcotic substance” means a substance or thing the name of which is specified in column 1 of Schedule VI or any other substance or thing for the time being declared by the regulations to be a narcotic substance’.
The Schedule to the Customs (Narcotic Substances) Regulations specifies substances which, in conjunction with subsection 4(1) of the Act, are declared to be “narcotic substances”, thereby attracting the sanction of imprisonment under the Act.
Certain drugs such as “Ecstasy” (3,4-Methylenedioxymetamphetamine) are prescribed in the Customs (Prohibited Imports) Regulations but are not prescribed as a ‘narcotic substance’ under the Act. This has the unintended consequence that importers of such drugs may be made the subject of a pecuniary penalty (of a maximum amount of $50,000) but may not be prosecuted for a criminal offence, with the sanction of imprisonment as would be the case if those drugs were ‘narcotic substances’ under the Act. The Statutory Rules (regulations 3 and 5) repeal the previous Schedule and substitute a new Schedule to the Customs (Narcotic Substances) Regulations to include certain drugs not previously covered, to correct the above anomaly.
In addition to the above amendment regulations 2 and 4 prescribe commercial and trafficable quantities respectively for the narcotic substances whose names are specified in the Schedule, because a different level of penalty applies depending upon the amount of a narcotic substance imported illegally.
Overview
The Customs (Narcotic Substances) Regulations 1989, issued under the authority of the Minister of State for Industry, Technology and Commerce, were enacted to address a legislative gap concerning the classification of certain drugs as "narcotic substances" under the Customs Act 1901. The problem identified was that certain drugs, such as "Ecstasy" (3,4-Methylenedioxymetamphetamine), were prohibited imports under the Customs (Prohibited Imports) Regulations but were not classified as narcotic substances under the Act. This discrepancy meant that while importers of these drugs could be subject to a pecuniary penalty, they could not be prosecuted for a criminal offence, unlike those who import substances explicitly declared as narcotic substances. The regulations aim to rectify this anomaly by amending the Schedule to the Customs (Narcotic Substances) Regulations to include these previously unclassified drugs, ensuring they attract the appropriate criminal sanctions. Furthermore, the regulations also set out commercial and trafficable quantities for the listed narcotic substances to ensure appropriate penalties based on the quantity imported illegally.
Scope and Application
The Customs (Narcotic Substances) Regulations, made under the Customs Act 1901, specify substances that are classified as "narcotic substances" and are subject to the sanctions outlined in the Act. This legislation applies to any person or entity importing or attempting to import these substances into Australia, as well as to any commercial activities involving these substances. The geographic scope of the Act extends to the Commonwealth of Australia, ensuring uniform enforcement across state and territory boundaries. Notably, the Act does not specify exclusions or exemptions, meaning that all imports of substances listed as narcotic are subject to its provisions. The regulations also establish different penalties based on the quantities of narcotics involved, which is detailed through subordinate instruments that further define commercial and trafficable quantities. This regulatory framework is designed to ensure that the importation of these substances is strictly controlled and that appropriate penalties, including imprisonment, are applied to offenders.
Key Provisions
The Customs (Narcotic Substances) Regulations, made under section 270 of the Customs Act 1901, detail specific narcotic substances through Schedule VI (section 4(1)). These substances, when imported, attract severe penalties, including imprisonment. The regulations now clarify and update which substances are classified as narcotic substances, ensuring that certain drugs, like "Ecstasy," are appropriately included. This amendment resolves a previous inconsistency where some substances, though prohibited under other regulations, did not carry the same criminal sanctions as true narcotic substances.
These regulations impose clear obligations on parties involved in the importation of goods. Importers must ensure that any substances they seek to bring into Australia are not classified as narcotic substances unless explicitly permitted. This includes understanding the updated Schedule and adhering to any specified quantities that trigger different levels of penalties. Failure to comply can result in significant legal repercussions.
Under these regulations, the penalties for breaching the Act are stringent. The importation of narcotic substances not listed in the Schedule can result in a pecuniary penalty of up to $50,000, while the importation of those listed can lead to imprisonment. The severity of the penalty often depends on the quantity of the substance involved, with higher quantities attracting harsher penalties. The updated regulations ensure that all narcotic substances, regardless of their specific classification or previous ambiguities, are treated with the appropriate level of legal seriousness.