EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 279
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 the Customs (Prohibited Exports) Amendment Regulations 2005 (No. 4) were introduced to address a gap in the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958, specifically concerning the prohibition of five new synthetic drugs that were not previously covered under these regulations. Enacted under the authority of the Minister for Justice and Customs, these regulations were necessary to align with the amendments made by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005, which introduced new serious drug offences in the Criminal Code Act 1995. The policy objective was to ensure that the importation and exportation of these newly identified synthetic drugs were effectively controlled, thereby preventing their illicit use and trade, and maintaining consistency with international regulatory standards.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2005 (No. 6) and Customs (Prohibited Exports) Amendment Regulations 2005 (No. 4) apply to individuals and entities involved in the importation and exportation of specified chemicals into and from Australia. These Regulations are an extension of the Customs Act 1901, and their purpose is to align with the amendments made by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005, which introduced new serious drug offences into the Criminal Code Act 1995. The chemicals in question, 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, have been classified as border controlled drugs and are subject to stringent import and export controls. The regulations are designed to ensure that these chemicals, which have no legitimate use and are increasingly being used illicitly, are not imported or exported unless specific conditions or restrictions are met, such as obtaining the necessary permissions and licences from the Secretary of the Department administering the Therapeutic Goods Act 1989 or an authorised person. These Regulations are of a minor nature and apply across the Commonwealth of Australia.
Key Provisions
The main operative sections of the Customs (Prohibited Imports) Amendment Regulations 2005 (No. 6) and the Customs (Prohibited Exports) Amendment Regulations 2005 (No. 4) are the amendments to the Customs (Prohibited Imports) Regulations 1956 (PI Regulations) and the Customs (Prohibited Exports) Regulations 1958 (PE Regulations). These amendments, detailed in regulation 5 of the PI Regulations and regulation 10 of the PE Regulations, introduce prohibitions on the importation and exportation of five specified chemicals into and from Australia. 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).
The obligations and requirements imposed by these Regulations are centred around the prohibition of the specified chemicals. Under regulation 5 of the amended PI Regulations, the importation of these chemicals into Australia is prohibited unless a permission and a licence to import the drug are granted by the Secretary of the Department administering the Therapeutic Goods Act 1989 or an authorised person. Similarly, regulation 10 of the amended PE Regulations prohibits the exportation of these chemicals from Australia unless a permission to export the drugs is granted by the Secretary or an authorised person to a licensed exporter. These requirements ensure that the importation and exportation of these chemicals are tightly controlled and monitored, aligning with the broader regulatory framework aimed at preventing illicit use.
In terms of consequences for breach, the Customs Act 1901 and the Criminal Code Act 1995 provide for offences, penalties, and consequences for non-compliance with the Regulations. Under the Customs Act, any person who contravenes the Regulations may be subject to penalties, including fines and imprisonment. The maximum penalties for serious drug offences under the Criminal Code can be substantial, reflecting the seriousness of the importation and exportation of these controlled substances. Specifically, the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 introduced new offences relating to the importation and exportation of certain drugs, with penalties commensurate with the gravity of the offence. Given the specific listing of these chemicals in section 314.4 of the Criminal Code, unauthorised importation or exportation can result in severe criminal penalties, including significant fines and lengthy imprisonment terms.