EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 298
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs (Prohibited Imports) Amendment Regulations 2009 (No. 5)
Section 270 of the Customs Act 1901 (the Customs Act) provides, in part, that the Governor‑General may make regulations not inconsistent with the Act, as necessary to give effect to the Act.
Section 50 of the Act provides that the Governor-General may, by regulation, prohibit the importation of goods into Australia. This power may be exercised by prohibiting the importation of goods absolutely, or by prohibiting the importation of goods unless specified conditions or restrictions are complied with.
The Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations) control the importation of the goods specified in various regulations and Schedules.
The amending Regulations amend the provisions in the Principal Regulations related to the importation of performance enhancing drugs.
Regulation 5G of the Principal Regulations prohibits the importation of substances mentioned in Schedule 7A to the Principal Regulations unless permission has been given. Schedule 7A lists substances such as growth hormones and other performance enhancing substances (Schedule 7A substance).
Subregulation 5G(2) provides that the import prohibition does not apply to a Schedule 7A substance if:
– the substance is required for the medical treatment of a person who is a passenger on a ship or aircraft;
– the substance is imported into Australia on the ship or aircraft;
– the substance was prescribed by a medical practitioner for that treatment; and
– the amount of the substance imported does not exceed the amount of the substance prescribed by the medical practitioner for the person receiving the treatment.
However, subregulation 5G(3) provides that the exception from the import control in subregulation 5G(2) does not apply if the Schedule 7A substance is required for the medical treatment of:
– a person who is a competitor within the meaning of the Australian Sports Drug Agency Act 1990 (the Drug Agency Act); or
– a person who has come to Australia for purposes relating to the performance of a competitor or the management of a competitor or a competitor's interests.
The amending Regulations update subregulation 5G(3) to reflect that the Drug Agency Act has been repealed and replaced by the Australian Sports Anti-Doping Authority Act 2006 (the ASADA Act) and incorporates new terminology in the ASADA Act, which uses the term 'athlete' instead of 'competitor' and introduced the term 'support person' in relation to an athlete.
The amending Regulations amend subregulation 5G(3) so that the exception in subregulation 5G(2) does not apply to a Schedule 7A substance that is being imported for the medical treatment of:
– an 'athlete' within the meaning of the ASADA Act; or
– a person who is a 'support person' within the meaning of the ASADA Act and who has come to Australia for purposes relating to the performance of an athlete or the management of an athlete or an athlete's interests.
The amending Regulations also update the examples contained in subregulation 5G(3) to reflect the change in terminology from 'competitor' to 'athlete'.
No consultation was undertaken specifically 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 the day after they are registered on the Federal Register of Legislative Instruments.
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Overview
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 5) were enacted to update the regulatory framework concerning the importation of performance-enhancing drugs in Australia. This amending instrument was introduced to address the need for legislative consistency with the replacement of the Australian Sports Drug Agency Act 1990 by the Australian Sports Anti-Doping Authority Act 2006. The Regulations were issued under the authority of the Minister for Home Affairs, and they reflect the changes in terminology from "competitor" to "athlete" and the introduction of "support person" as defined in the ASADA Act. The policy objective of these Regulations is to ensure that the importation of performance-enhancing substances remains tightly controlled, particularly in relation to the medical treatment of athletes and their support personnel, while maintaining the integrity of Australia's anti-doping regulations. The Regulations are set to commence on the day after their registration on the Federal Register of Legislative Instruments.
Scope and Application
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 5) amends the Customs (Prohibited Imports) Regulations 1956 to update the terminology used in relation to the importation of performance enhancing drugs, aligning it with the Australian Sports Anti-Doping Authority Act 2006. This change ensures that the regulations reflect current legislative terminology and definitions. Specifically, the term 'competitor' has been replaced with 'athlete', and the term 'support person' has been introduced to cover individuals involved in the performance and management of an athlete's interests. The Regulations apply to the importation of substances listed in Schedule 7A, which includes growth hormones and other performance enhancing substances, and affect those who import these substances for medical treatment. The geographic scope of these Regulations is national, covering all imports into Australia. The Regulations provide an exception for the importation of Schedule 7A substances if they are required for the medical treatment of a person who is not an athlete or support person, provided that certain conditions are met, such as the substance being imported on the person as a passenger and the amount not exceeding the prescribed amount. The Regulations do not apply if the substance is imported for the treatment of an athlete or support person who has come to Australia for the purpose of performance or management of an athlete's interests. The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Key Provisions
The Customs (Prohibited Imports) Amendment Regulations 2009 (No. 5) primarily focus on updating the regulatory framework governing the importation of performance-enhancing substances. Specifically, Regulation 5G of the Principal Regulations, which deals with the prohibition on importing certain substances unless permission has been granted, is amended. Regulation 5G(3) is updated to reflect changes in the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act), which replaced the Australian Sports Drug Agency Act 1990. The term 'competitor' is replaced with 'athlete', and 'support person' is introduced to align with the new terminology used in the ASADA Act.
The amendments impose specific obligations on individuals and entities seeking to import substances listed in Schedule 7A, such as growth hormones and other performance-enhancing drugs. The import of these substances is strictly prohibited unless certain conditions are met. These conditions include the necessity for medical treatment, importation on the same vessel or aircraft as the patient, prescription by a medical practitioner, and adherence to the prescribed amount. However, the exception for importing these substances for medical treatment does not apply if they are intended for the use of an 'athlete' or a'support person' as defined in the ASADA Act, or if the individual has come to Australia for reasons related to the performance or management of an athlete.
Failure to comply with the import restrictions outlined in these regulations can result in serious legal consequences. The importation of prohibited substances without the necessary permissions constitutes an offence under the Customs Act 1901. Those found guilty of contravening these provisions may face significant penalties, including substantial fines and potential imprisonment. The specific penalties are not detailed in the amending Regulations but would be governed by the overarching provisions of the Customs Act and any applicable case law.
In summary, the Customs (Prohibited Imports) Amendment Regulations 2009 (No. 5) ensure that the importation of performance-enhancing substances is tightly regulated, with specific exceptions for medical use that exclude athletes and their support persons. These amendments reflect legislative changes under the ASADA Act and aim to maintain the integrity of sports by preventing the misuse of such substances. Compliance with these regulations is mandatory for all importers, and failure to adhere to them can lead to severe legal repercussions.