Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005

Administered by Attorney-General's Department

Legislation au F2005L03950 Regulations Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 293

Issued by the Authority of the Minister for Justice and Customs

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005

Schedule 1 to the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (the Act) repeals drug importation and exportation offences in section 233B of the Customs Act 1901 and relocates those offences to Division 307 of Part 9.1 of the Criminal Code.  Schedule 1 of the Act commenced on 6 December 2005.

Item 76 of Schedule 1 to the Act provides that regulations may make provision for matters of a transitional nature arising from the amendments or repeals made by Schedule 1 to the Act.

The Regulations deal with transitional arrangements for telecommunications interception warrants and surveillance device warrants that apply to the investigation of offences under section 233B of the Customs Act 1901.

The purpose of the Regulations is to ensure that any such warrants that were issued before 6 December 2005, and have not yet expired, may be used to collect evidence of both the offences under section 233B of the Customs Act 1901 (the old offences), and the corresponding new offences in Division 307 of Part 9.1 of the Criminal Code.

Details of the Regulations are set out in the Attachment.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commenced on the day of registration.

The Regulations were made in consultation with the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions and the Australian Crime Commission.  Wider consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements.  It has no direct or substantial indirect effect on business.


ATTACHMENT

Details of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on the day they are registered.

Regulation 3 – Definitions

This regulation defines terms used in the Regulations.

It provides that the term “old law” has the meaning given by item 75 of Schedule 1 to the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (the Act).  Item 75 of Schedule 1 to the Act provides:

Old law means:

(a)     the provisions of Division 2 of Part XIII of the Customs Act 1901 as in force from time to time before the commencement of this Schedule to the extent to which those provisions related to narcotic substances; and

(b)    any law related to those provisions.

 

Division 2 of Part XIII of the Customs Act 1901 contains the section 233B drug importation offences which the Act is repealing and relocating to Division 307 of Part 9.1 of the Criminal Code.

Regulation 4 – Transitional arrangements

The purpose of this regulation is to ensure that surveillance device warrants or telecommunications interception warrants issued for the purpose of investigating offences under section 233B of the Customs Act 1901, and that continue to operate on or after 6 December 2005, can be used for the purpose of investigating either offences under section 233B of the Customs Act 1901 or new corresponding offences under Division 307 of Part 9.1 of the Criminal Code.

A drug importation offence committed before 6 December 2005, or partially committed before that date, will be an offence under section 233B of the Customs Act 1901.  It is important that surveillance device warrants and telecommunications interception warrants can still be used on or after 6 December 2005 to investigate such offences.  Paragraph 4(a) ensures that the warrants can continue to be used for this purpose.

Paragraph 4(a) provides that the warrant continues in force as if a reference in the warrant to a provision of the old law were a reference to the old law as applied by item 75 of Schedule 1 to the Act.  The effect of item 75 of Schedule 1 to the Act is to ensure that the old offences under section 233B of the Customs Act 1901, and any law related to those provisions in place immediately before the commencement of Schedule 1 to the Act, will continue to apply in relation to:

  • criminal conduct engaged in before the commencement of Schedule 1 of the Act, and
  • criminal conduct that spans the old and new schemes.

Sub-regulation 4(a) ensures that existing warrants can continue to be used to investigate such conduct.

A drug importation offence committed on or after 6 December 2005 will be an offence under Division 307 of Part 9.1 of the Criminal Code.  It is also important that surveillance device warrants and telecommunications interception warrants can be used on or after 6 December 2005 to investigate those offences.

Paragraph 4(b) provides that a reference to section 233B, or part thereof, in a warrant includes a reference to the corresponding provision in Division 307 of Part 9.1 of the Criminal Code.  The table in paragraph 4(b) lists the new Criminal Code offence provisions which correspond to the offence provisions in section 233B of the Customs Act 1901.

Overview

The Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005, enacted by the Parliament of Australia, was introduced to address the need for a more streamlined and robust framework for dealing with serious drug offences. The Act aims to enhance the effectiveness of law enforcement in combating drug-related crimes by relocating drug importation and exportation offences from the Customs Act 1901 to the Criminal Code. This shift was intended to better align the enforcement mechanisms with the criminal justice system, ensuring that penalties and investigative powers are more cohesively administered. The Act was designed to fill a legislative gap by providing a clearer and more comprehensive approach to prosecuting and preventing serious drug offences, reflecting a policy objective to strengthen the legal apparatus against drug-related criminal activities. The Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005 were formulated to address transitional issues arising from the amendments made by the Act. These regulations were developed to ensure that surveillance device warrants and telecommunications interception warrants issued prior to the commencement of the Act on 6 December 2005 could still be utilised to investigate both the old offences under section 233B of the Customs Act 1901 and the corresponding new offences under Division 307 of Part 9.1 of the Criminal Code. This transitional measure was necessary to maintain the continuity of ongoing investigations and to prevent any legal vacuum that might result from the legislative changes. The Regulations were made in consultation with relevant law enforcement and prosecutorial authorities to ensure their practicality and effectiveness.

Scope and Application

The Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005 applies to existing surveillance device warrants and telecommunications interception warrants issued for the purpose of investigating offences under section 233B of the Customs Act 1901. These warrants must continue to operate on or after the commencement date of 6 December 2005. The transitional arrangements provided in the Regulations ensure that these warrants can be used to investigate either the old offences under section 233B of the Customs Act 1901 or the new corresponding offences under Division 307 of Part 9.1 of the Criminal Code. The Regulations have a Commonwealth reach, applying across Australia as they implement amendments made by Commonwealth legislation. There are no stated exclusions or exemptions in the Regulations themselves, though certain warrants may cease to operate if they are superseded by new warrants issued under the new Criminal Code provisions. The Regulations extend the application of the Act by providing transitional arrangements that allow existing warrants to continue to operate in relation to both the old and new offences.

Key Provisions

The key operative sections of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Transitional Regulations 2005 pertain to the transitional arrangements for telecommunications interception warrants and surveillance device warrants, as outlined in Regulation 4 (paragraphs 4(a) and 4(b)). Regulation 4 ensures that warrants issued before the commencement date of 6 December 2005, which have not yet expired, can be used to investigate both the old drug importation and exportation offences under section 233B of the Customs Act 1901 and the corresponding new offences under Division 307 of Part 9.1 of the Criminal Code. Regulation 4(a) clarifies that such warrants will continue to apply as if references to the old law were references to the old law as applied by item 75 of Schedule 1 to the Act, ensuring the warrants remain effective for conduct engaged in before the commencement of the Act and for conduct spanning the old and new schemes. Regulation 4(b) extends the application of these warrants to the new offences by including references to section 233B in the warrants as references to the corresponding provisions in Division 307 of Part 9.1 of the Criminal Code. The Regulations impose specific obligations on parties and entities involved in investigations that were initiated under the old law but continue beyond the commencement date. These obligations include ensuring that warrants issued before 6 December 2005 can be utilised for both the old and new offences. This is crucial for maintaining the continuity of investigations that were already in progress and for ensuring that no evidence collected under valid warrants becomes inadmissible due to the legislative changes. Investigators, law enforcement agencies, and legal practitioners must be aware of these transitional provisions to ensure compliance with the law and the effective continuation of ongoing investigations. The Regulations do not explicitly state any offences, penalties, or civil/criminal consequences for breach. However, it is implied that any misuse of warrants not in accordance with the transitional provisions could lead to legal challenges regarding the admissibility of evidence obtained under those warrants. The primary intent of the Regulations is to facilitate a smooth transition and avoid legal complications arising from the changes in legislation, thereby ensuring that the integrity of ongoing investigations is maintained without disruption.

Legal classification tags

Area of Law
Criminal Law
Instrument
Regulation
Concepts
Commencement Provisions
Transitional Provisions
Definitions & Interpretation
Regulatory Standards
Enforcement Powers
Reporting & Disclosure Obligations

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.