EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 278
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2005 (No. 6)
Customs (Prohibited Exports) Amendment Regulations 2005 (No. 4)
Subsection 270(1) of the Customs Act 1901 (the Customs Act) provides in part that the
Governor-General may make regulations not inconsistent with the Customs Act prescribing all matters which by the Customs Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Customs Act or for the conduct of any business relating to the Customs.
Sections 50 and 112 of the Customs Act provide, in part, that the Governor-General may, by regulation, prohibit the importation or exportation, respectively, of goods into or from Australia and that the powers may be exercised by prohibiting the importation or exportation of goods absolutely or by prohibiting the importation or exportation of goods unless specified conditions or restrictions are complied with.
The Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) and the Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) control the importation and exportation, respectively, of the goods specified in the PI and PE Regulations and the Schedules to those Regulations.
The purpose of the amending Regulations is to prohibit the importation into, and exportation from, Australia of 5 chemicals. The 5 chemicals are:
- 5-methoxy-N,N-diisopropyltryptamine (otherwise known as 5-MeO-DiPT);
- 2,5-Dimethoxy-4-ethylthiophenethylamine (otherwise known as 2C-T-2);
- 2,5-Dimethoxy-4-iodophenethylamine (otherwise known as 2C-I);
- 2,5-Dimethoxy-4-n-propylthiophenethylamine (otherwise known as 2C-T-7); and
- 5-Methoxy-alpha-methyltryptamine (otherwise known as 5-MeO-AMT).
These chemicals are from two new categories of synthetic drugs, known broadly as phenethylamines and tryptamines, that are increasingly being used illicitly around the world. Each of these chemicals is regulated in the United States of America, and some European countries. Further, no legitimate uses have been identified for these substances.
The 5 chemicals are listed in the table of ‘Border controlled drugs and quantities’ in section 314.4 of the Criminal Code Act 1995 (the Criminal Code) as inserted by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (the Serious Drugs Act). The Serious Drugs Act amends the Criminal Code to insert new serious drug offences, including criminal offences relating to the importation and exportation of certain drugs. All of the drugs listed in section 314.4 of the Criminal Code were already listed in the PI Regulations and the PE Regulations with the exception of these 5 chemicals.
The new offences in the Criminal Code take effect on 6 December 2005. The amendments were therefore required to ensure that the PI and PE Regulations are consistent with the list in section 314.4 of the Criminal Code. Until the amendments to the PI and PE Regulations were made, Customs officers had no power to seize the 5 new chemicals on detection as prohibited imports or prohibited exports.
The amendments to the PI Regulations prohibit the importation into Australia of the 5 new chemicals, unless the requirements set out in regulation 5 of the PI Regulations are complied with. Broadly speaking, to comply with regulation 5 of the PI Regulations, a permission and a licence to import the drug granted by the Secretary of the Department administering the Therapeutic Goods Act 1989 (the Secretary), or an authorised person, is required.
The amendments to the PE Regulations prohibit the exportation from Australia of the 5 new chemicals, unless the requirements set out in regulation 10 of the PE Regulations are complied with. Broadly speaking, to comply with regulation 10 of the PE Regulations a permission to export the drugs must be granted to a licensed exporter by the Secretary, or an authorised person.
No consultation was undertaken in relation to the amending Regulations as they are of a minor or machinery nature and do not substantially alter existing arrangements.
The amending Regulations commence on 6 December 2005.
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Overview
The Customs (Prohibited Imports) Amendment Regulations 2005 (No. 6) and Customs (Prohibited Exports) Amendment Regulations 2005 (No. 4) were enacted to address a gap in Australia's existing customs regulations by prohibiting the importation and exportation of five newly identified synthetic drugs. These amendments were made under the authority of the Customs Act 1901, which allows the Governor-General to make regulations necessary for the enforcement of the Act. The policy objective of these regulations was to align Australian customs controls with those of other countries that already regulate these substances and to prevent the illicit use of these chemicals in Australia, given their association with drug offences. These regulations were introduced to ensure consistency with the new serious drug offences outlined in the Criminal Code Act 1995, which were enacted by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005. The amendments took effect on 6 December 2005, providing customs officers with the legal authority to seize these substances when detected as prohibited imports or exports.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2005 (No. 6) and the Customs (Prohibited Exports) Amendment Regulations 2005 (No. 4) extend the application of the Customs Act 1901 by prohibiting the importation and exportation of five specified chemicals into and from Australia, respectively. These chemicals, which include 5-methoxy-N,N-diisopropyltryptamine, 2,5-Dimethoxy-4-ethylthiophenethylamine, 2,5-Dimethoxy-4-iodophenethylamine, 2,5-Dimethoxy-4-n-propylthiophenethylamine, and 5-Methoxy-alpha-methyltryptamine, are part of two new categories of synthetic drugs, namely phenethylamines and tryptamines, that are increasingly being used illicitly worldwide. The amendments ensure consistency with the Criminal Code Act 1995, which lists these substances as border controlled drugs. Importation is subject to a permit and licence from the Secretary of the Department administering the Therapeutic Goods Act 1989, while exportation requires a permission granted by the Secretary or an authorised person. These regulations apply nationally across Australia and align with the new serious drug offences introduced by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005, which took effect on 6 December 2005.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2005 (No. 6) and Customs (Prohibited Exports) Amendment Regulations 2005 (No. 4) (the amending Regulations) serve to align the Customs (Prohibited Imports) Regulations 1956 (PI Regulations) and the Customs (Prohibited Exports) Regulations 1958 (PE Regulations) with the updated list of border controlled drugs as inserted by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Serious Drugs Act). Specifically, these regulations add five new chemicals to the list of prohibited imports and exports, thereby prohibiting their entry into and departure from Australia unless certain conditions are met (section 314.4 of the Criminal Code Act 1995). These chemicals are 5-methoxy-N,N-diisopropyltryptamine (5-MeO-DiPT), 2,5-Dimethoxy-4-ethylthiophenethylamine (2C-T-2), 2,5-Dimethoxy-4-iodophenethylamine (2C-I), 2,5-Dimethoxy-4-n-propylthiophenethylamine (2C-T-7), and 5-Methoxy-alpha-methyltryptamine (5-MeO-AMT).
Under the amending Regulations, the importation of these five chemicals is strictly prohibited unless the requirements set out in regulation 5 of the PI Regulations are fulfilled. Compliance with these regulations necessitates obtaining a permission and a licence to import the drug from the Secretary of the Department administering the Therapeutic Goods Act 1989 or an authorised person. Similarly, the exportation of these chemicals is prohibited unless the requirements in regulation 10 of the PE Regulations are met, which involves obtaining a permission to export the drugs from the Secretary or an authorised person. These regulations ensure that there is a controlled process for the import and export of these substances, which are identified as having no legitimate uses and are subject to regulation in other jurisdictions.
The amending Regulations impose specific obligations on individuals and entities involved in the importation or exportation of these chemicals. Importers must ensure they have obtained the necessary permissions and licences from the appropriate authority before attempting to bring these substances into Australia. Exporters must similarly ensure they have the required permissions before attempting to export these chemicals from Australia. Failure to comply with these requirements can result in legal consequences, including the seizure of the goods by Customs officers. Additionally, there may be serious criminal penalties associated with the unauthorised importation or exportation of these substances, as outlined in the Criminal Code Act 1995.
The unauthorised importation or exportation of these chemicals can lead to significant legal repercussions. Under the Criminal Code Act 1995, the importation or exportation of these substances without the necessary permissions can result in criminal charges. The penalties for such offences can be severe, including substantial fines and imprisonment. For instance, under section 314.4 of the Criminal Code, the maximum penalty for importing these substances can be up to 25 years imprisonment, reflecting the serious nature of these offences. Similarly, exporting these substances without the required permissions can result in penalties that reflect the seriousness of contravening these regulations, thereby emphasising the importance of compliance with the amended provisions.