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Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014
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 2013 - 2014

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

CRimes legislation amendment »

(Psychoactive substances and other measures) « Bill » 2014

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Minster for Justice, the Hon Michael Keenan MP)



 

CRimes legislation « amendment » (Psychoactive substances and other measures) « Bill » 2014

general Outline

This « Bill » amends the Commonwealth Places (Application of Laws) Act 1970, Criminal Code Act 1995 , « Customs » Act 1901, Financial Transaction Reports Act 1988, International Transfer of Prisoners Act 1997 and the Surveillance Devices Act 2004.

The « Bill » contains a range of measures to improve Commonwealth criminal justice arrangements, including amendments to:

·          ban the importation of all substances that have a psychoactive effect that are not otherwise regulated or banned

·          ensure that Australian « Customs » and Border Protection (ACBPS) officers have appropriate powers to stop these substances at the border

·          correct an error in the definition of a minimum marketable quantity in respect of a drug analogue of one or more listed border controlled drugs

·          introduce new international firearms trafficking offences, amend existing cross-border firearms offences and introduce  mandatory minimum sentences of five years’ imprisonment for these offences

·          streamline the international transfer of prisoners regime within Australia and clarify the processes involved

·          amend certain slavery offences to clarify they have universal jurisdiction, and

·          validate access by the Australian Federal Police (AFP) to certain investigatory powers in designated State airports.  

The « Bill » comprises six schedules.

Schedule 1 will amend the Criminal Code Act 1995 (the Code) and « Customs » Act 1901 (the « Customs » Act) to strengthen the Commonwealth’s ability to respond to new and emerging illicit drugs, also known as ‘new psychoactive substances’ .   New psychoactive substances are designed to mimic the psychoactive effects of illicit drugs, but their chemical compositions are not captured by existing controls on those drugs.  There is evidence that manufacturers design the chemical structures of psychoactive substances to avoid these controls and prohibitions. 

The amendments in Schedule 1 will fill the regulatory gap between when psychoactive substances first appear and when they are controlled under other parts of the Criminal Code or under the Prohibited Imports Regulations.  They will ensure that new psychoactive substances cannot be imported while the Government assesses their harms and considers the appropriate controls to place on them.  The measure takes a precautionary approach to dealing with psychoactive substances.  It is intended to work in parallel with, and not replace, any of the existing schemes which regulate the importation of both illicit drugs and substances with a legitimate « use » into Australia.

Schedule 1 will:

·          introduce an offence into the Code for importing a psychoactive substance that does not have a legitimate « use » or which is not already prohibited

·          introduce an offence into the Code of importing a substance where its presentation contains a representation that it has the same effects as, or substantially similar effects to, a serious drug, or that it is a lawful alternative to a serious drug, and

·          amend the « Customs » Act to allow Australian « Customs » and Border Protection Service (ACBPS) and Australian Federal Police (AFP) officers to exercise appropriate administrative powers to search for, detain, seize and destroy substances prohibited under the new offences in the Criminal Code.  

Schedule 2 will amend the Codeand the « Customs » Act to implement election commitments made in the Government’s Policy to Tackle Crime (the Policy), released in August 2013. In the Policy, the Coalition undertook to implement tougher penalties for gun-related crime, including through the introduction of mandatory minimum sentences of five years’ imprisonment for illegal firearm trafficking.

Schedule 2 will:

·          create new international firearms offences of trafficking prohibited firearms and firearm parts into and out of Australia (new Division 361 of the Code)

·          extend the existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia in Division 360 of the Code to include firearm parts as well as firearms, and

·          introduce a mandatory minimum five year term of imprisonment for the new offences in Division 361 and existing offences in Division 360 of the Code.

Schedule 3 will amend the International Transfer of Prisoners Act 1997 (ITP Act), which governs Australia’s international transfer of prisoners (ITP) scheme.  The ITP scheme aims to promote the successful rehabilitation and reintegration into society of a prisoner, while preserving the sentence imposed by the sentencing country as far as possible.  This is a voluntary scheme which requires the consent of the prisoner, Australia’s Attorney-General, the relevant transfer country, and, where applicable, the relevant Australian state or territory to or from which the prisoner wishes to transfer.

Since the ITP scheme has been in place, it has become clear that improvements to the ITP Act are required to clarify and streamline the process, to make the scheme more straightforward, operate more efficiently, and reduce unnecessary burdens on the resources required to process ITP applications.  The amendments in this Schedule seek to address these issues, with the effect being timelier processing of applications, reduced resource burden and improved usability of the legislation by prisoners, while still maintaining prisoners’ rights and due process.

The amendments in Schedule 3 will:

·          remove the requirement for the Attorney-General to make a final decision where a transfer cannot proceed due to an application not meeting all requirements under the ITP Act (i.e. an unviable application)

·          impose a one-year time limit on reapplications from prisoners whose applications are refused, or who withdraw their applications

·          clarify that prisoners with suspended sentences may be transferred under the ITP scheme

·          clarify that a prisoner who wishes to transfer to Australia may apply for transfer either to the country in which they are serving their sentence or directly to Australia

·          clarify that the date on which the assessment of dual criminality is based is the date the application for transfer is received

·          clarify that the definition of ‘joint prisoner’ includes a prisoner who was convicted in one or more Australian states and/or territories

·          clarify that the option of writing to a transfer country to advise that the Attorney-General’s consent would be given if a variation were made to the terms of transfer is a discretionary, rather than a mandatory, requirement

·          broaden the definition of ‘prisoner’s representative’ to include a prisoner’s close family member, and

·          remove references to prescribed application forms.

Schedule 4 amends the Code to clarify that the slavery offences in section 270.3 have universal jurisdiction.  This approach accords with the prohibition of slavery as a jus cogens (peremptory) norm of customary international law - meaning that it is non-derogable and applies at all times and in all circumstances - and one that is expressly prohibited by a number of treaties to which Australia is a party.  It is also in keeping with Australia’s recognition of universal jurisdiction as a well-established principle of international law, and one which extends to a range of crimes including piracy, genocide, war crimes, torture and other crimes against humanity.

The purpose of Schedule 5 is to validate action undertaken by a member of the AFP, or a special member under the Commonwealth Places (Application of Laws) Act 1970 , for an investigation of an applied State offence in relation to a Commonwealth place that would otherwise have been invalid because the Commonwealth place was not, for a time, a designated State airport.  This retrospective application is limited to the period starting 19 March 2014 and ending on 16 May 2014 and refers only to those investigatory powers specified in subsection 5(3A) of the Commonwealth Places (Application of Laws) Act 1970 .

Schedule 6 will make minor and technical amendments to the Code, the Financial Transaction Reports Act 1988 (FTR Act) and the Surveillance Devices Act 2004 .

The purpose of the « amendment » to the FTR Act is to give permanent effect to an exemption granted by the AUSTRAC CEO in relation to account blocking obligations of cash dealers in certain circumstances. A consequential « amendment » has also been made to the Surveillance Devices Act 2004 to remove reference to an offence against a repealed section of the FTR Act.

These amendments will give permanent effect to an exemption granted by the AUSTRAC CEO from an obligation for cash dealers to block accounts in certain circumstances.  This exemption was granted by the AUSTRAC CEO due to the fact that the obligation was largely duplicative of safeguards in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 .

In addition, Schedule 6 will make minor amendments to Division 301.11 of the Code to correct an error in the definition of a minimum marketable quantity in respect of a drug analogue of 1 or more listed border controlled drugs.  This error occurred when Division 301.11 was inserted into the Code in November 2012 by the Crimes Legislation « Amendment » (Serious Drugs, Identity Crime and Other Measures) Act 2012.

FINANCIAL IMPACT STATEMENT

The measures within this « Bill » will have little or no impact on Government revenue.

REGULATION IMPACT STATEMENT

The Regulation Impact Statement for the measure to ban the importation of new psychoactive substances is at Attachment A .

The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required for the remaining measures within this « Bill » as the proposed changes have a minor impact on business, community organisations or individuals.

 



ACRONYMS

ACBPS                                   Australian « Customs » and Border Protection Service

AFP                                         Australian Federal Police

ADJR Act                               Administrative Decisions (Judicial Review) Act 1977

AML/CTF                               Anti-money laundering and counter-terrorism financing

AML/CTF Act                        Anti-Money Laundering and Counter-Terrorism Financing Act 2006

APVMA                                 Australian Pesticides and Veterinary Medicines Authority

ARTG                                     Australian Register of Therapeutic Goods

AUSTRAC                             Australian Transaction Reports and Analysis Centre

CEO                                        Chief Executive Officer of the Australian « Customs » and Border Protection Service

CRC                                        Convention on the Rights of the Child

CRPD                                                 Convention on the Rights of Persons with Disabilities

FTR Act                                  Financial Transaction Reports Act 1988

IBAC                                      Independent Broad-based Anti-corruption Commission of Victoria

ICCPR                                                International Covenant on Civil and Political Rights

ICNA Act                               Industrial Chemicals (Notification and Assessment) Act 1989

ITP Act                                   International Transfer of Prisoners Act 1997

ITP                                          International Transfer of Prisoners

NPS                                         New Psychoactive Substances

TGA                                        Therapeutic Goods Administration



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 »

Crimes Legislation « Amendment » (Psychoactive Substances and Other Measures) « Bill » 2014

This « Bill » is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .

An overview of measures in the « Bill » and their human rights implications is below.

Schedule 1 - New Psychoactive Substances  

Overview

Schedule 1 of the « Bill » amends the Criminal Code (the Code) and the « Customs » Act 1901 (the « Customs » Act) to ban the importation of substances:

·          which mimic the psychoactive effects of illicit drugs but whose chemical structures fall outside existing controls (also known as ‘new psychoactive substances’ or NPS), and

·          the presentation of which includes an express or implied representation that the substance is an alternative to an illicit drug.

This statement will refer to ‘new psychoactive substances’ as ‘NPS’ when the term is used generally to describe the policy issue this legislation seeks to address. When examining how specific provisions in the legislation work, this Statement will refer to the first banned category of substances as ‘prohibited psychoactive substances’ and the second banned category of substances as ‘prohibited serious drug alternatives’.

The aim of the measure is to fill the regulatory gap between when NPS first appear on the market and when they are listed and banned under the Criminal Code or « Customs » (Prohibited Imports) Regulations 1956 (Prohibited Imports Regulations).   The measure is intended to work in parallel with, and not replace, any of the existing schemes which ban the importation of illicit drugs and regulate the importation of substances with a legitimate « use » .

The « Bill » will allow officers of the Australian « Customs » and Border Protection Service (ACBPS) to exercise appropriate powers to search for, detain, seize and destroy prohibited psychoactive substances without a warrant. These powers are substantially similar to, or an extension of, the powers that ACBPS officers currently exercise in relation to special forfeited goods (a category of banned goods which includes illicit drugs). These powers are set out in Parts XII and XIII of the « Customs » Act.  

ACBPS officers require these powers given the ACBPS’s role as the primary agency maintaining the integrity of the Australian border. The powers will only be used in narrow circumstances and will be subject to a number of safeguards to ensure that the « Bill » balances the legitimate interests of the Commonwealth in preventing serious and organised crime against the need for governments to protect human rights.  

 



 

Human rights implications

The measure to ban the importation of prohibited psychoactive substances and prohibited serious drug alternatives engages the following human rights:

·          the right to life under article 3 of the Universal Declaration on Human Rights, article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) and article 6(1) of the Convention on the Rights of the Child (CRC)

·          the protection of children from the illicit « use » of drugs under article 33 of the CRC

·          the presumption of innocence under 14(2) of the ICCPR.

·          the right to privacy under article 17 of the ICCPR, and

·          freedom of expression under 19(2) of the ICCPR.

Right to life

Article 3 of the Universal Declaration on Human Rights and Article 6(1) of both the ICCPR and the CRC preserve the inherent right to life. The right to life includes protection from arbitrary deprivation of life and imposes on states parties an obligation to protect this right by law. The United Nations Human Rights Committee has commented that States parties should take measures to prevent and punish deprivation of life by criminal acts. [1] Article 6(2) of the CRC also requires states parties to take measures to ensure the survival and development of children, to the greatest extent possible.

Schedule 1 of the « Bill » promotes the right to life by banning the importation into Australia of untested and potentially dangerous substances that are intended to mimic the effects of illicit drugs. The ban will strengthen the current border controls on NPS by preventing importers from tweaking the chemical structure of illicit drugs to evade those controls. NPS have been connected to a number of serious health incidents and deaths across Australia. They are made more dangerous in that they are unknown chemical compounds which are marketed as ‘legal highs’ or legal analogues of illicit drugs. This marketing can encourage individuals to believe that these substances have been assessed as being safe for consumption or are less harmful than other drugs when, in fact, they are untested and their short and long term health effects are unknown. [2]

As there are no known domestic manufacturers of the active ingredients in these substances, banning their importation is an important step in reducing their supply. This measure will also provide ACBPS officers with appropriate powers to search for, seize and destroy prohibited psychoactive substances and prohibited serious drug alternatives when they locate them in imports.

The importation ban will assist in reducing individuals’ access to untested substances, the consumption of which has been connected to a number of deaths in Australia and across the world. This law is an important tool in reducing the harms and fatalities associated with NPS and in preserving individuals’ right to life. 



 

Protection of children from the illicit « use » of drugs

Article 33 of the CRC specifically requires states parties to take appropriate measures to protect children (up to the age of 18) from the illicit « use » of narcotic drugs and psychotropic substances. Although prohibited psychoactive substances are not specifically listed in the relevant international treaties banning narcotic drugs and psychotropic substances, [3] the Committee on the Rights of the Child has recognised that article 33 has a broad application and may impose obligations on states parties to protect children from the « use » of substances that are not listed in the Conventions, such as alcohol and tobacco. [4] Moreover, the Commentary on the CRC suggests that the way the article is framed permits the inclusion of new treaties as the scope of international drug control changes. [5] The import ban on prohibited psychoactive substances will promote the protection of children from the illicit « use » of drugs by strengthening import controls on these substances and reducing the potential for them to fall into the hands of children.

NPS pose a particular risk to children. The variability in concentration and toxicity of the active ingredients in NPS increases the risk that children who consume these drugs may overdose or suffer severe adverse effects, particularly as their ability to metabolise drugs is not fully developed.

Further, the internet plays a significant role in the marketing and supply of NPS. [6] Internet sales involve limited visibility over the identity and age of the person conducting the transaction, resulting in a heightened possibility that NPS may fall into the hands of children who purchase these substances online. 

The import ban on prohibited psychoactive substances and prohibited serious drug alternatives is therefore an important tool for promoting children’s rights to be protected from the illicit « use » of drugs. By prohibiting the importation of untested and potentially dangerous substances, this measure will authorise the seizure of prohibited psychoactive substances and and prohibited serious drug alternatives, which will assist in preventing their supply to children.

Presumption of innocence

Article 14(2) of the ICCPR provides that persons charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. This right may be permissibly limited provided that the prosecution remains primarily responsible for proving the accused is guilty. [7]

Schedule 1 of the « Bill » contains a provision imposing an evidential burden on the defendant in criminal proceedings.

A defendant charged with importing a prohibited psychoactive substance contrary to new sections 320.2 or a prohibited serious drug alternative contrary to new section 320.3 of the Code will bear the evidential burden in establishing that the imported substance is exempt from the relevant offence, in accordance with subsections 320.2(2) and 320.3(3). These subsections do not contain essential elements of the offences. Rather, the exemptions listed in subsections 320.2(2) and 320.3(3) primarily relate to the intended « use » of the substance, which will be a matter peculiarly within the knowledge of the owner of the goods. The provision relies on subsection 13.3(3) of the Criminal Code, which provides that a defendant who wishes to rely on any exception provided by the law creating an offence bears an evidential burden in relation to that matter. 

Exceptions to the offence of importing a prohibited psychoactive substance and the offence of importing a prohibited serious drug alternative are necessary because there are a number of substances that have important social or economic uses—whether as foods, medicines or industrial, agricultural or veterinary chemicals—but which may also have a psychoactive effect when consumed by a person. These exceptions ensure that the ban will not interfere with trade in substances with these uses and with substances that are already regulated by existing schemes.

Placing the evidential burden on a defendant in court proceedings to demonstrate the intended « use » of a substance is necessary to assist in protecting public health. Requiring the importer to identify these matters will prevent the importation of unknown, unassessed and potentially dangerous substances which are intended for human consumption. 

It is incumbent upon an importer to be aware of the purpose for which he or she is importing a substance and to obtain all relevant authorisations and permissions for that importation. It will be within an importer’s knowledge whether a substance fits within one of the existing regulatory schemes and, therefore, one of the exemptions to the offence. Similarly, evidence about the intended « use » of a substance is peculiarly within the knowledge of the importer. It will be readily available from their business or personal records. 

If the onus was on the prosecution to prove intended « use » , it would have to prove beyond reasonable doubt that the imported substance did not fit within each of the eleven excluded categories before a charge could be made out. Under the « Bill » , the defendant only bears the evidential burden to show that the imported substance fell into one of the categories of exempt goods. If, as the defendant alleges, the importation is legitimate, the defendant would have ready knowledge of the relevant facts required to discharge the evidential burden in relation to an exemption. In these circumstances, placing the evidential burden on the defendant is both a reasonable and proportionate way of preventing people from importing prohibited psychoactive substances and protecting public health. 

Similarly, where a defendant is charged with importing a prohibited psychoactive substance contrary to new section 320.2 of the Criminal Code, subsection 320.2(4) clarifies that, in a prosecution for an offence against new subsection 320.2(1), the prosecution need only prove that the defendant knew, or was reckless as to whether, the substance he or she imported was a psychoactive substance. This provision does not place an evidential burden on the defendant in court proceedings. It is based on section 300.5 in Part 9.1 of the Criminal Code.

This subsection is important as importers, sellers and users of NPS frequently do not know their precise chemical structure and their exact effects.  The ingredients in NPS are frequently misdescribed and can produce effects not anticipated by suppliers or users. [8] It is appropriate for the offence to prevent people from importing a psychoactive substance, even if it is not the precise substance they intended to import, or if it does not have the precise effects they anticipated.

Where a defendant is charged with importing a prohibited serious drug alternative under the new section 320.3, subsection 320.3(4) clarifies that, in a proceeding for an offence against subsection 320.3(1), it is enough that the representation related to the substance being an alternative to any serious drug (whether because of its effects or purported lawfulness).

Paragraph 320.3(4)(b) clarifies that, in a proceeding for an offence against subsection 320.3(1), the prosecution does not need to show that the defendant intended for people to understand that the relevant representation related to a particular serious drug.  It will be enough for the prosecution to prove that the representation was that the substance was an alternative to any serious drug (whether because of its effects or purported lawfulness), and that the defendant knew, or was reckless as to, that fact.

Paragraph 320.3(4)(c) clarifies that the prosecution does not need to prove that the defendant knew, or was reckless as to, the precise identity of the substance or its precise effects.  As noted above, in any case, it is not necessary for the prosecution to prove that the substance had a psychoactive effect at all as the offence in subsection 320.3(1) depends only on the physical presentation of the substance.

These paragraphs are necessary to effect the aim of the offence, which is to prevent the importation of substances presented as alternatives, lawful or otherwise, to listed illicit drugs.  The representation of psychoactive substances in this manner is not appropriate.  Representing a substance as a ‘legal’ alternative to illicit drugs  may encourage a person to « use » these drugs on the assumption that they have been tested and assessed as safe when compared to more established illicit drugs.   This is incorrect—these substances are typically untested, of varying concentration and toxicity and carry unknown or unpredictable side effects.

These paragraphs are also necessary because manufacturers, importers, sellers and users frequently do not know the precise chemical structure and exact effects of substances they import.  The ingredients in psychoactive substances are frequently misdescribed and can produce effects not anticipated by suppliers or users.

In these circumstances, it should not matter whether the person importing the substance intends to present it as being the same as, substantially similar to, or a lawful alternative to, a particular serious drug.  It is enough that the person knows, or is reckless as to, the fact that the representation is about any serious drug.

None of the matters covered by subsections 320.2(4) and 320.3(4) amount to essential elements of the offence. Indeed, the prosecution will still be required to prove all other components of the offence beyond reasonable doubt. As such, subsections 320.2(4) and 320.3(4) are consistent with article 14(2) and the structure of the new offences in sections 320.2 and 320.3 when read as a whole will guarantee that an individual will not be presumed guilty until the charge has been proved beyond reasonable doubt.



 

Prohibition on interference with privacy

Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy. Lawful interferences with the right to privacy will be permitted, provided they are reasonable in the particular circumstances. The UN Human Rights Committee has interpreted ‘reasonableness’ in this context to imply that ‘any interference with privacy must be proportional to the « end » sought and be necessary in the circumstances of any given case’. [9]

Schedule 1 of the « Bill » engages the right to privacy by extending the ACBPS’s existing powers to search for and seize special forfeited goods to cover prohibited psychoactive substances. Under the « Customs » Act, an ACBPS officer may, without a warrant, search a container in a « Customs » place where he or she has a reasonable suspicion that it contains special forfeited goods. An ACBPS officer may also « use » these powers to search a person where the officer believes the person has special forfeited goods in his or her immediate possession. Schedule1 of the « Bill » simply extends the range of substances over which this power can be exercised to include prohibited psychoactive substances.  

In exercising these powers, ACBPS officers may seek additional information from importers about the intended « use » of suspicious goods. The ACBPS will « use » this information to investigate the importation and determine whether the goods should be dealt with under an existing regulatory scheme (for example as a therapeutic good, food or industrial chemical) or as a suspected prohibited psychoactive substance.  

Schedule 1 of the « Bill » does not change the nature of ACBPS’s existing powers. These powers are provided by law, the grounds for their exercise are precisely expressed and they are accompanied by safeguards to ensure that they are not arbitrarily exercised. The power in section 203B of the « Customs » Act to search a container or person without a warrant in section 203B of the « Customs » Act may only be exercised by an authorised person if certain conditions are met. One of these conditions is that an ACBPS officer suspects on reasonable grounds that there are special forfeited goods (such as prohibited psychoactive substances) in the container or in the person’s immediate possession.  This ensures that any decision by the ACBPS to interfere with a person’s right to privacy will be based on evidence and made on a case-by-case basis. This power is also subject to a number of safeguards, including that containers in the immediate physical possession of a person can only be searched in the person’s presence (subsection 203B(2B)), and that officers can only forcibly remove or open a container if the person in possession has been given a reasonable opportunity to facilitate the search (section 203D). 

The expansion of the ACBPS’s existing powers is necessary to achieve the legitimate aims of protecting public health and prohibiting the importation of dangerous and potentially fatal substances into Australia. The ACBPS is the primary agency maintaining the integrity of the Australian border. As such, ACBPS officers require powers to search, detain and seize prohibited psychoactive substances at the border.

The powers are also reasonable in the circumstances and proportional to the aims of the « Bill » . They only allow authorities to call for such information relating to an individual’s private life that is necessary in the interests of protecting society from dangerous and potentially fatal substances. For example, an ACBPS officer may only « use » the expanded power to search for and seize a substance without a warrant under section 203B of the « Customs » Act where he or she reasonably suspects it is a prohibited psychoactive substance. An ACBPS officer may also « use » the expanded power to seize a thing that he or she believes on reasonable grounds is evidential material relating to an offence committed in respect of a prohibited psychoactive substance. The safeguards outlined above demonstrate that the powers are reasonable and proportional. In the circumstances, the « Bill » creates permissible limitations on the right to privacy.  

Freedom of expression

Article 19(2) of the ICCPR preserves the right to freedom of expression, which includes the right to receive and impart information and ideas of all kinds in writing or in print and using any media. Article 19(3) explicitly states that this right may be subject to certain restrictions provided that the restrictions are provided by law and are for the protection of (among other things) public order and public health.

The offence in new section 320.3 of the Criminal Code engages the right to freedom of expression. This section prohibits a person from importing a substance the presentation of which includes an express or implied representation that the substance is a legal alternative to an illicit drug. This will prevent an individual from displaying information on, or receiving information about a substance’s psychoactive effects or about how the substance is an alternative to a more established illicit drug.

These restrictions on a person’s freedom of expression are justified. The offence of importing a substance the presentation of which includes an express or implied representation that the substance is a legal alternative to an illicit drug (whether because it is presented as having substantially similar psychoactive effects to a serious drug or as being a lawful alternative to such a drug) is provided by law.

The offence is necessary for protecting public health. As noted above, prohibited psychoactive substances are frequently sold or marketed with the representation that they are ‘legal’ alternatives to illicit drugs. This may encourage individuals to « use » these drugs on the assumption that they have been tested and assessed as safe when compared to more established illicit drugs. This is incorrect. Prohibited psychoactive substances are typically untested, of varying concentration and toxicity and carry unknown or unpredictable side effects. While the States and Territories are responsible for controlling the sale, supply and advertising of prohibited psychoactive substances, banning the importation of goods packaged in such a way is necessary to assist in ensuring that they are not marketed or sold in a manner that could encourage a person to believe they are a safe or legal alternative to more established illicit drugs.

The offence is a reasonable and proportionate way of achieving the aim of protecting public health from the effects of untested and unknown chemical compounds. It limits only a person’s ability to make representations or receive information about a substance’s psychoactive effects or about how the substance is an alternative to a more established illicit drug. The offence will not affect representations about foods or therapeutic goods that comply with relevant regulatory standards and the presentation of which may make similar representations.

Conclusion

Schedule 1 of the « Bill » is compatible with human rights because it promotes some human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.



 

Schedule 2 - Firearms Trafficking Offences

Overview

Schedule 2 of the « Bill » will amend the Code and the « Customs » Act.   It contains measures to implement election commitments made in the Government’s Policy to Tackle Crime (the Policy), released in August 2013.

Schedule 2 of the « Bill » will:

·          create new international firearms offences of trafficking prohibited firearms and firearm parts into and out of Australia (new Division 361 of the Code)

·          extend the existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia in Division 360 of the Code to include firearm parts as well as firearms, and

·          introduce a mandatory minimum five year term of imprisonment for the new offences in Division 361 and existing offences in Division 360.

The expansion of the existing offences in Division 360 to include firearm parts, and the inclusion of firearm parts in the new international trafficking offences, is necessary to ensure that criminals cannot evade trafficking offences and penalties by breaking firearms down and trafficking their constituent parts.

Human rights implications

Schedule 2 of the « Bill » engages the following rights:

·          the right to freedom from arbitrary detention under article 9(1) of the ICCPR, and

·          the right to be presumed innocent until proved guilty according to law under article 14(2) of the ICCPR.

Arbitrary detention

Article 9(1) of the ICCPR states that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.  No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The prohibition on arbitrary detention under article 9(1) requires that in all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the « end » that is sought. This right is engaged by the application of mandatory minimum penalties for trafficking offences under Division 360 and the proposed international firearms trafficking offences in the new Division 361 of the Code.

The inclusion of a mandatory minimum penalty of five years’ imprisonment for trafficking offences under Division 360 and Division 361 of the Code is aimed at the legitimate objective of ensuring offenders receive sentences that reflect the seriousness of their offending. 

There are clear and serious social and systemic harms associated with firearms trafficking, and the introduction of a mandatory minimum penalty of five years imprisonment for offences under Division 360 and the new Division 361 reflect the gravity of supplying firearms and firearm parts to the illicit market.  The entry of even a small number of illegal firearms into the Australian community can have a significant impact on the size of the illicit market, and, due to the imperishable nature of firearms, a firearm can remain within that market for many years.  This provides a growing pool of firearms which can be accessed by groups who would « use » them to commit serious and violent crimes, such as murder. For example, in 2012, firearms were identified as being the type of weapon used in 25% of homicides in Australia (Australian crime: Facts and figures 2013, Australian Institute of Criminology). Failure to enforce harsh penalties on trafficking offenders could lead to increasing numbers of illegal firearms coming into the possession of organised crime groups who would « use » them to assist in the commission of serious crimes.

The amendments do not apply mandatory minimum penalties to children (those under the age of 18). This promotes freedom from arbitrary detention through encouraging proportionate sentencing by preserving judicial discretion in sentencing to take into account minors’ particular circumstances.  In this way, any risk that the sentencing of lower culpability offenders could amount to arbitrary detention is removed.

Moreover, the penalties do not impose a minimum non-parole period on offenders. This will preserve a court’s discretion in sentencing, and will help ensure that custodial sentences imposed by courts are proportionate and able to take into account the particular circumstances of the offence and the offender.

Most importantly, the mandatory minimum term of imprisonment will only apply if a person is convicted of an offence as a result of a fair trial in accordance with such procedures as are established by law

Presumption of innocence

Article 14(2) of the ICCPR states that:

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

The presumption of innocence imposes on the prosecution the burden of proving charges, and guarantees that no guilt can be presumed until charges have been proved beyond reasonable doubt.  In general, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. This right is engaged by the application of absolute liability and strict liability to elements of the new offences of international firearms trafficking introduced under new Division 361 of the Code, and by the inclusion of a new defence (applicable to the new offences) of reasonable belief that the conduct is justified or excused by or under law.

Absolute liability

The application of absolute liability engages the presumption of innocence because it allows for a physical element of an offence to be proven without the need to prove fault.

The new offences criminalise trafficking firearms or firearm parts into or out of Australia where importing or exporting the firearm or part was prohibited under the « Customs » Act 1901 absolutely, or prohibited under the Act unless certain requirements were met. The amendments apply absolute liability to the element of the offences that importing or exporting the item was prohibited under the Act.

The absolute liability elements for the new offences in the Code are set out below:

Offence

Absolute liability element

Paragraph 361.2(1)(d)

The importation of the firearm or part was prohibited under the « Customs » Act 1901 absolutely

Paragraph 361.2(3)(d)

The importation of the firearm or part was prohibited under the « Customs » Act 1901 unless certain requirements were met

Paragraph 361.3(1)(d)

The exportation of the firearm or part was prohibited under the « Customs » Act 1901 absolutely

Paragraph 361.3(3)(d)

The exportation of the firearm or part was prohibited under the « Customs » Act 1901 unless certain requirements were met

Paragraph 361.3(4)(d)

Entering the firearm or part for exportation was prohibited under the « Customs » Act 1901 unless certain requirements were met

Absolute liability is set out in section 6.2 of the Code.   The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and that the defence of mistake of fact under section 9.2 of the Code is not available.   Accordingly, the prosecution will not be required to prove that the defendant knew or was reckless to the fact that the importation or exportation of the firearm or part was prohibited or, alternatively, that the importation, exportation or entry for exportation of the firearm or firearm part was prohibited unless the requirements for import or export had not been met.

Absolute liability is appropriate and required for the element of the offence that the importation or exportation of the firearm or firearm part was prohibited or prohibited unless the requirements for import or export had been met. This is a precondition to the act of import or export and the state of mind of the defendant with respect to that condition is not relevant, as the defendant’s state of mind is relevant to the intent to traffic element of the offence

If absolute liability were not imposed, a defendant could attempt to avoid criminal liability for the offence by claiming they were unaware that there were import and export requirements which had to be met. In such cases, the prosecution would then have to prove beyond reasonable doubt that a person knew or was reckless as to whether importing or exporting the article was prohibited or needed to meet certain requirements in order to be lawful. Given the difficulty in doing so, it is reasonable and proportionate to apply absolute liability in these cases. Further, it is reasonable to expect that, given the history of firearm regulation in Australia,  the community and, in particular, people involved in the movement of firearms, know that there are controls on importing firearms and firearm parts or at least know enough to make enquiries. 



 

Strict liability

Similarly, the application of strict liability engages the presumption of innocence because it allows for a physical element of an offence to be proven without the need to prove fault.

The amendments apply strict liability to the proposed new offences of trafficking firearms or firearm parts in to or out of Australia (or entering those articles for export) where doing so was prohibited absolutely under the « Customs » Act 1901 unless certain requirements were met with respect of the element of the offences that the person failed to meet such requirements.

The strict liability elements for the new offences in the Code are set out below:

 

Offence

Strict liability element

Paragraph 361.2(3)(e)

The person failed to meet any of the requirements

Paragraph 361.3(3)(e)

The person failed to meet any of the requirements

Paragraph 361.3(4)(e)

The person failed to meet any of the requirements

Strict liability is set out in section 6.1 of the Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proven and the defence of mistake of fact is available. The fault element that the person intended to traffic will still have to be proven by the prosecution, as will the physical element that import or export requirements had not been met at the time of import or export.

Applying strict liability to the element of the offence that import or export requirements had not been met is appropriate. As above, it is reasonable to expect that those involved in the movement of firearms are aware that there are controls on importing firearms and firearm parts, or at least know enough to make enquiries  Given that the defendant would be aware whether or not they had met the requirements for import or export, requiring the prosecution to prove beyond reasonable doubt that a person knew approval had not been obtained, or was reckless as to whether or not the requirements had been met, would be overly onerous and could undermine deterrence if suspects could avoid conviction by arguing they were unaware of the requirements.

However, the application of strict, rather than absolute, liability to this element of the offence will make available the general defence of mistake of fact.  Therefore, if a person mistakenly believed that he or she had met the requirements for import or export of a firearm or firearm part, they would be able to rely on this defence. For instance, if a person received a state or territory permit to acquire and was told that that document was the only requirement for import, and other relevant requirements were therefore not met, the defence would be available to them.

Defences

The « Bill » introduces a defence of reasonable belief that the conduct is justified or excused by or under law.   This engages the presumption of innocence by placing an evidential burden of proof on the defendant that at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under the law of the Commonwealth or of a State or Territory, and, had the conduct been so justified or excused, the conduct would not have constituted the offence. 

Under international human rights law, a reverse onus provision will not violate the presumption of innocence if the law is reasonable in the circumstances and maintains the rights of the accused.  Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it. The purpose of this section is to ensure that administrative errors or misunderstandings occurring in the course of legitimate business do not result in convictions for offences that are intended only to target those involved in the illegal firearms trade.

 

For example, it will be more practical for the accused to prove that they had received incorrect advice about import requirements than the defence to disprove. The burden of proving the defence is an evidential burden in which the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt (see sections 13.1 and 13.3 of the Code for further information on evidential burdens).

Conclusion

The firearms trafficking measures in schedule 2 of the « Bill » are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act « 2011 » .  To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate to achieving reductions in gun-related crime.

Schedule 3 - International Transfer of Prisoners

Overview

Australia’s ITP scheme is governed by the International Transfer of Prisoners Act 1997 (ITP Act).  The scheme aims to promote the successful rehabilitation and reintegration into society of a prisoner, while preserving the sentence imposed by the sentencing country as far as possible.  This is a voluntary scheme, which requires the formal consent of the prisoner, Australia’s Attorney-General, the relevant foreign country, and, where applicable, the relevant Australian state or territory to or from which the prisoner wishes to transfer.

The ITP measures in Schedule 3 of this « Bill » streamline the existing ITP process and clarify or simplify some legislative requirements that need to be met before a prisoner may be transferred into or out of Australia.  

Human rights implications

Schedule 3 of the « Bill » engages the following human rights:

·          the right to humane treatment in detention under article 10 of the ICCPR

·          equality before the law under article 12 of the Convention on the Rights of Persons with Disabilities ( CRPD ) and articles 12 and 40 of the CRC , and

·          the right to a fair hearing under article 14(1) of the ICCPR.



 

Humane treatment in detention

Article 10(1) of the ICCPR requires that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.  Article 10(3) also requires State parties to ensure that prison systems have as their essential aim the reformation and social rehabilitation of prisoners.  The ITP scheme upholds these rights by promoting the successful rehabilitation and reintegration into society of a prisoner, while preserving the sentence imposed by the sentencing country as far as possible. 

The proposed amendments permit consideration of transfers of prisoners in a wider array of situations including where the prisoner is serving a suspended sentence, and where the prisoner is unable to consent and requires a representative to act on their behalf (for example, where the prisoner is a child or has a mental impairment).  To the extent that these amendments broaden and clarify the situations in which the ITP scheme may apply, the amendments promote rights relating to humane treatment in detention in article 10 of the ICCPR. 

Equality before the law

Article 12 of the CRPD relates to equal recognition of persons with disabilities before the law.  Article 12 of the Convention on the CRC provides that children should have their opinions taken into account when decisions are made that affect them.  Article 40 of the CRC provides that children who are accused of breaking the law should receive legal help.  To the extent that the amendments will broaden the persons who can consent to a transfer on behalf of a prisoner (including a person with a disability or a child), such as, in the absence of a parent, a grandparent, the amendments promote equal rights before the law of people with a disability as contained in article 12 of the CRPD and articles 12 and 40 of the CRC. 

Fair hearing

The right to a fair hearing is protected in article 14(1) of the ICCPR.  Legislation or policy that alters the jurisdiction of courts or tribunals engages this human right, including where legislation or policy restricts the rights of courts or tribunals to review administrative decisions.

Removal of the Attorney-General’s decision in unviable applications

The amendments would insert a provision in the ITP Act that declares all unviable applications (i.e. applications that cannot proceed because eligibility is not met or consent has been refused by one of the relevant parties) to be closed.  The prisoner will be informed of the outcome of his or her matter under section 52 of the ITP Act.  This would resolve the current situation where the Attorney-General is required to make a decision on applications where the only possible option is to decline because one or more of the requirements under section 10 of the ITP Act have not been fulfilled (including where the prisoner is not a citizen of the country to which they wish to transfer, or where any of the other parties - the foreign country or the relevant state or territory Minister - have refused consent).  While this measure removes a decision that is technically reviewable under the ADJR Act, in effect the limitation confers no disadvantage and facilitates faster resolution for the prisoner. 

 

 

Clarification that the Attorney-General’s power to seek a variation of terms from a transfer country is discretionary rather than mandatory

This measure will modify section 20 of the ITP Act to limit administrative reviews to applications where the Attorney-General chooses to exercise his or her discretion.  This reflects the original Parliamentary intention behind the provision - and the existing policy approach - that seeking variation of terms proposed by the transfer country is at the discretion of the Attorney-General. [10]

Clarifying that the Attorney-General’s decision is discretionary rather than mandatory removes the requirement to notify transfer countries where such notification is futile (i.e. the transfer country could not agree to amended terms under their domestic law).  The flexibility remains for the Attorney-General to seek variation of terms where such a variation is able to be considered by the other country.  This measure is similarly aimed at facilitating quicker resolution of applications where the conclusion is foregone, and does not otherwise limit ministerial consideration of applications where there is a possibility a variation to the terms originally proposed may be acceptable to the other country.

Imposing a discretionary one-year limit on reapplications

Currently, the ITP Act does not place a restriction on when or how often a prisoner may reapply for transfer when their application has been refused or withdrawn.  New applications are often received within months of the prisoner being notified that his or her application has been refused.  Prisoners have also reapplied a short time after withdrawing their existing applications. 

The current policy position is to treat each reapplication as a new application.  However, this is time consuming, particularly as few, if any, reapplications in such a short timeframe would include new information or indicate special circumstances to justify reconsideration of the prisoner’s transfer. 

This measure is designed to address reapplications where there is no substantive change in circumstances, and does not preclude the Attorney-General from exercising his or her discretion to consider applications within the year where special circumstances or new information does manifest, notwithstanding the one-year timeframe.  This will assist in managing the expectations of prisoners and allowing feasible applications to be progressed in a more timely manner and reduce unnecessary burdens on the resources required to process ITP applications.  Further, this « amendment » does not impact on the ability of a prisoner to reapply any time after the one year period had elapsed.    

Conclusion

The ITP measures are compatible with human rights because they advance the protection of human rights and, to the extent that they limit human rights, those limitations are reasonable, necessary and proportionate.

Schedule 4 - Slavery Offences: Jurisdiction

Overview

Schedule 4 of the « Bill » makes an « amendment » to the jurisdiction of slavery offences under section 270.3 of the Code by providing that section 15.4 of the Criminal Code, ‘Extended geographical jurisdiction category D’, applies to those offences, thereby making explicit that the offences have universal jurisdiction.   The « amendment » will also make explicit that the Attorney-General’s permission to prosecute would be required where a slavery offence takes place wholly outside Australian territory.

Under the existing section 270.3, the jurisdiction of the slavery offences is not specified. Where jurisdiction is not explicit in the Code, standard geographical jurisdiction (limited to conduct occurring wholly or partly in Australia) applies under section 14.1 unless a contrary intention appears.

The Explanatory Memorandum to the Criminal Code « Amendment » (Slavery and Sexual Servitude) Act 1999 , indicated that the slavery offences apply ‘whether the conduct occurs inside or outside Australia and whether or not the offender is an Australian national’, suggesting an intention that the slavery offences have universal jurisdiction.   Universal Jurisdiction would be in line with Australia’s recognition of universal jurisdiction as a well-established principle of international law, which extends to slavery, alongside piracy, genocide, war crimes, torture and other crimes against humanity.

This « amendment » will empower Australian law enforcement agencies to effectively investigate and prosecute instances of slavery even where the offence was not committed wholly within Australian territory and reflects Australia’s recognition of slavery as a heinous crime.

Human rights implications

 

Schedule 4 of the « Bill » engages the following rights:

·          right to freedom from slavery contained in article 8 of the ICCPR and article 27(2) of the CRPD, and

·          the right to an effective remedy contained in article 2(3) of the ICCPR.

Right to freedom from slavery

The right to freedom from slavery contained in article 8 of the ICCPR and article 27(2) of the CRPD prohibits slavery and the slave trade in all of their forms.  The prohibition of slavery is a jus cogens norm of customary international law, and is also expressly prohibited by a number of other treaties to which Australia is a party, including the CRPD, the International Covenant to Suppress the Slave Trade and Slavery 1926 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery 1956.  The prohibition of slavery in international law is absolute and non-derogable, applying at all times and in all circumstances.

By making it explicit that universal jurisdiction applies to the slavery offences under section 270.3 of the Code, Australia is promoting the right to freedom from slavery by ensuring that all persons are free from slavery and that perpetrators of slavery offences cannot escape justice by invoking the doctrines of sovereign immunity or by leaving the jurisdiction in which the offence was committed. 

Right to an effective remedy

The right to an effective remedy in article 2(3) of the ICCPR imposes an obligation on countries to provide remedies and reparation for the victims of human rights violations.   

The United Nations Human Rights Committee has stated that the right to an effective remedy encompasses an obligation to bring to justice perpetrators of human rights abuses, including discrimination, and also to provide appropriate reparation to victims.

The « amendment » to the jurisdiction of the slavery offences under section 270.3 would empower investigators and prosecutors to bring perpetrators to justice even when an offence was not committed wholly within Australian territory, and thus promotes the right of victims to an effective remedy.

Conclusion

Schedule 4 of the « Bill » is compatible with human rights and freedoms as it promotes and does not limit human rights and freedoms.

 

Schedule 5 - Validating Airport Investigations

 

Overview

 

Schedule 5 ensures that members of the Australian Federal Police (AFP), and special members, had the appropriate range of Commonwealth powers to conduct investigations of applied State offences committed at designated State airports from the 19 March 2014 to 16 May 2014.  This covers the period between the repeal of the Commonwealth Places (Application of Laws) Regulations 1998 (1998 Regulation) and the commencement of the Commonwealth Places (Application of Laws) Regulation 2014 (2014 Regulation).

 

The Commonwealth Places (Application of Laws) Act 1970 (the COPAL Act) has the effect of applying the provisions of the laws of a State as Commonwealth laws in Commonwealth places.  A Commonwealth place is defined in the COPAL Act as meaning a place with respect to which the Commonwealth Government has exclusive power to make laws for the peace, order, and good government of the Commonwealth by virtue of s 52 of the Constitution. 

 

In relation to policing, the COPAL Act renders some of the standard Commonwealth arrest and search powers contained in the Crimes Act 1914 (Cth) (the Crimes Act) inapplicable to applied State offences committed in Commonwealth places (with the exception of Tasmania).  These offences can only be dealt with using the relevant applied State police powers (i.e. State powers of arrest and search).

 

Prior to « 2011 » , the AFP and State police worked together as part of a ‘hybrid policing model’ in airports that are Commonwealth places.   In « 2011 » , following the 2009 Federal Audit of Police Capabilities,  this model was replaced with an ‘all-in policing and security model’, under which the AFP took responsibility for the policing and security of Australia’s eleven major airports.   An exception was subsequently added to the COPAL Act (through the Aviation Crimes and Policing Legislation « Amendment » Act « 2011 » ) to enable the otherwise inapplicable Commonwealth police powers in the Crimes Act  to be used by the AFP in relation to the applied State offences at designated State airports.  

 

As a result, subsection 5(3A) of the COPAL Act now allows police to access certain standard investigatory powers set out in the Crimes Act within designated state airports , namely:

·          Part IAA (dealing with search, information gathering, arrest and related powers)

·          Section 9 (which provides for the seizure and condemnation of forfeitable goods)

·          Section 13 (allowing the institution of proceedings in respect of offences)

·          Section 15 (dealing with remand of defendants), and

·          Part ID (dealing with forensic procedures).

 

At this time, the 1998 Regulations were updated to prescribe the list of airports that fall within the definition of a ‘designated state airport’ for the purposes of subsection 5(3A) of the COPAL Act, namely Adelaide Airport, Brisbane Airport, Coolangatta (Gold Coast) Airport, Hobart Airport, Melbourne (Tullamarine) Airport, Perth Airport, and Sydney (Kingsford Smith) Airport.  The 2014 Regulation, which came into effect on 17 May 2014, preserved this list of designated state airports. 

 

During the approximately eight week period between the repeal of the 1998 Regulations and the introduction of the 2014 Regulation, AFP members were required to rely exclusively on State powers contained in State legislation to investigate applied State offences.  Schedule 5 retrospectively validates the exercise of relevant Commonwealth powers in designated State airports from the repeal of the 1998 Regulations until the introduction of the 2014 Regulation.  This will ensure that the AFP members, and special members, had the full range of Commonwealth investigatory powers for applied State offences committed at designated State airports.

 

Human rights implications

 

Schedule 5 of the « Bill » engages the following human rights:

·          the right to protection against arbitrary or unlawful interference with privacy under article 17 of the ICCPR

·          the right to life and prohibition on torture and cruel, inhuman or degrading treatment or punishment under article 6 and 7 of the ICCPR

·          the right to liberty and security of person and freedom from arbitrary detention under article 9 of the ICCPR, and 

·          the prohibition against retrospective criminal behaviour under article 15 of the ICCPR.

 

Right to protection against arbitrary or unlawful interference with privacy

 

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.  This right may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary.

 

The term ‘unlawful’ means no interference can take place except in cases authorised by law.  What is ‘arbitrary’ will be determined by the circumstances of each particular case.  In order for an interference with the right to privacy not to be ‘arbitrary’, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the particular circumstances.  The United Nations Human Rights Committee has interpreted ‘reasonableness’ in this context to imply that any interference with privacy must be proportional to the « end » sought and be necessary in the circumstances of any given case.

 

Schedule 5 limits the right to privacy under article 17 of the ICCPR by retrospectively validating the « use » of the search and information gathering powers in Part IAA of the Crimes Act .   These powers are to be exercised responsibly and there are a number of safeguards intended to ensure that a police officer conducting any search has regard to a searched person’s right to privacy and maintenance of dignity throughout a search.  In particular, there are rules for conduct of a strip search including that the search must be conducted in a private area (s 3ZI(1)(a) of the Crimes Act) and conducted by an officer of the same sex (s 3ZI(1)(b) of the Crimes Act).  There are also additional requirements that must be met if in relation to children (s 3ZI(1)(e) and s 3ZI(F) of the Crimes Act).  Similarly, the search and seizure powers available under section 9 of the Crimes Act are restricted to circumstances where there are ‘reasonable grounds’ (s 9(1) of the Crimes Act) to support the « use » of the powers.

 

The forensic procedures, including the retention of data from those procedures, set out in Part ID of the Crimes Act also limit the right to privacy under article 17 of the ICCPR.  Part ID allows for the collection and « use » of DNA material for law enforcement purposes and establishes a scheme for the matching and inter-jurisdictional exchange of DNA profiles between Commonwealth, State and Territory law enforcement agencies.   Information collected under Part ID is included within the National Criminal Investigation DNA Database (NCIDD) as a ‘DNA profile.’  Importantly, the NCIDD does not contain any personal information that would identify a person to whom a particular DNA profile relates, protecting the personal privacy of the individual.  There is an offence in section 23YO of unauthorised disclosure of any information stored in the NCIDD or any other information revealed by a forensic procedure carried out under Part ID.  Part ID also ensures that any forensic procedure must be carried out in accordance with certain rules and procedures, for example ensuring that the procedure is conducted in circumstances affording reasonable privacy to the suspect (s 23XI of the Crimes Act). 

 

Although this Schedule will, to some extent, limit the right to privacy under article 17 of the ICCPR, this is necessary to achieve legitimate law enforcement aims and a number of safeguards apply which will ensure it is a reasonable and proportionate means of achieving these aims. 

 

Right to life and prohibition on torture and cruel, inhuman or degrading treatment or punishment

 

Article 6(1) of the ICCPR guarantees every human being the inherent right to life, stating that no one shall be arbitrarily deprived of his or her life.  Article 7 of the ICCPR guarantees that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 

 

Schedule 5 engages this right by retrospectively validating the « use » of the arrest powers set out in Part IAA of the Crimes Act, which includes provision for the « use » of force.   However, the « use » of force when conducting arrests is limited to ‘as necessary and reasonable in the circumstances’ as specified in section 3ZC(1) of the Crimes Act.   Furthermore, in the course of arresting a person for an offence the officer is not able to do anything that is likely to cause death, or grievous bodily harm, unless the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (s 3ZC(2) of the Crimes Act). 

 

AFP members who « use » arrest powers are trained and authorised to do so under the Australian Federal Police Act 1979 or equivalent State legislation.   In addition, the Crimes Act contains a number of safeguards to ensure that these powers cannot be used arbitrarily, including the requirement in section 3ZD of the Crimes Act for persons to be informed of the grounds of arrest.  This will ensure that arrest powers are used effectively and in a manner that does not endanger the officer, those subject to arrest or the public. 

 

Accordingly, any potential limitation on article 6 or 7 of the ICCPR imposed as a result of the Schedule is reasonable, necessary and proportionate.

 

Right to security of the person and freedom from arbitrary detention

 

Article 9(1) of the ICCPR guarantees the right to liberty and security of person and enshrines that no person shall be subjected to arbitrary arrest or detention.  This right requires that persons not be subject to arrest and detention except as provided for by law, and provided that the law itself and the manner of its execution are not arbitrary.

 

Schedule 5 limits this right by retrospectively validating the « use » of arrest powers in Part IAA and the remand of a defendant set out in section 15 of the Crimes Act .  This limitation of article 9 is necessary to ensure that there is adequate security and policing in airports.  This serves the purpose of ensuring the legislative framework surrounding Australia’s aviation regime is sufficient and appropriate. 

 

These limitations are proportionate in that they are appropriately circumscribed.  There is a clear threshold that must be met before an arrest can occur, namely ‘the constable believes on reasonable grounds that the person has committed or is committing the offence’ (s 3W(1)(a) of the Crimes Act).  In addition, when exercising the right to arrest specified in Part IAA of the Crimes Act , an officer must comply with a range of basic safeguards.  For example, the right in article 9(2) to be informed, at the time arrest, of the reasons for arrest and to be promptly informed of any charges is provided for in section 3ZD of the Crimes Act.

 

Prohibition on retrospective criminal laws

 

Article 15 of the ICCPR prohibits retrospective criminal laws and provides that no-one can be found guilty of an offence that was not a crime at the time it was committed.  This prohibition supports the long recognised criminal law principle that there can be no crime or punishment without a prior provision by law. The scope of the prohibition in article 15 of the ICCPR also includes that laws must not impose greater punishments than those which would have been available at the time the acts were done. 

 

Schedule 5 does not give retrospective effect to a criminal offence which did not constitute an offence at the time that it was committed.  The application of the substantive Commonwealth and applied State offences at designated state airports was unaffected by the repeal of the 1998 Regulations and the introduction of the 2014 Regulation.  This Schedule does not interfere with the sentence set by a court, nor is it imposing a harsher penalty.  The Schedule may, however, indirectly affect liability for a criminal offence given that it validates Commonwealth powers available to members of the AFP during the investigation of a State offence.  This possibility is limited as during the period between the repeal of the 1998 Regulations and the introduction of the 2014 Regulation, AFP members were, for the most part, able to access alternative State powers to investigate applied State offences. 

 



 

Conclusion

Schedule 5 is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Schedule 6 - Minor amendments

Overview

Schedule 6 makes minor amendments to strengthen the Commonwealth anti-money laundering and counter-terrorism financing (AML/CTF) legislative framework.

Specifically, the amendments will simplify the Financial Transaction Reports Act 1988 (FTR Act) to give permanent effect to an exemption granted by the AUSTRAC CEO from an obligation on cash dealers to block accounts in certain circumstances.

In addition, Schedule 6 of this « Bill » will amend Division 301.11 of the Code to correct an error in the definition of a minimum marketable quantity in respect of a drug analogue of 1 or more listed border controlled drugs.   This error occurred when Division 301.11 was inserted into the Code in November 2012 by the Crimes Legislation « Amendment » (Serious Drugs, Identity Crime and Other Measures) Act 2012. Schedule 6 will also amend sections 312.1 and 312.2 of the Code to update references to the border controlled drugs list and the controlled drugs list for the purposes of working out commercial, marketable or trafficable quantities of drugs and precursors in mixtures, or where different kinds of drugs, plants or precursors are involved.

Finally, Schedule 6 corrects minor grammatical errors in subsection 205E(2) of the « Customs » Act.  

Human rights implications

The amendments to the FTR Act and to Division 301.11 and sections 312.1 and 312.2 of the Code and the amendments to section 205E of the « Customs » Act are minor amendments and do not engage any of the applicable rights or freedoms.

 

The Hon Michael Keenan MP, Minister for Justice



NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

This clause provides that, when enacted, the « Bill » may be cited as the Crimes Legislation « Amendment » (Psychoactive Substances and Other Measures) Act 2014 .

Clause 2 - Commencement

This clause provides for the commencement of each provision in the Act, as set out in the table.   Item 1 in the table provides that sections 1 to 3 which concern the formal aspects of the Act, as well as anything in the « Bill » not elsewhere covered by the table, will commence on the day on which the Act receives Royal Assent.  

Schedule 1 will commence on a day or days to be fixed by Proclamation. If the provisions do not commence within the period of 6 months beginning on the day the Act receives Royal Assent, they will commence on the day after the « end » of that period. This commencement provision has been included to ensure that relevant agencies have developed and put in place appropriate guidelines and procedures to implement the measure.

Schedule 2 will commence on the day after the Act receives Royal Assent.

Schedule 3 will commence on a day to be fixed by Proclamation. If the provisions do not commence within the period of 6 months beginning on the day the Act receives Royal Assent, they will commence on the day after the « end » of that period. This commencement provision has been included to ensure there is sufficient time to put in place the necessary arrangements to give effect to the amendments in this Schedule.

Schedule 4 to 6 will commence on the day after the Act receives Royal Assent.

Clause 3 - Schedules

This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.

 

 

 



 

Schedule 1 - Psychoactive Substances

GENERAL OUTLINE

Schedule 1 makes amendments to the Code and the « Customs » Act to strengthen the Commonwealth’s ability to respond to new and emerging illicit drugs, also known as ‘new psychoactive substances’.   Border agencies in Australia and around the world have been detecting increasing numbers of new psychoactive substances in recent years. 

New psychoactive substances are designed to mimic the psychoactive effects of illicit drugs, but their chemical compositions are not captured by existing controls on those drugs.  These substances are often marketed as ‘legal’ alternatives to illicit drugs, which may imply they have been assessed as safer or less harmful than those illicit drugs.  This is incorrect.  These substances are typically untested, of varying composition, concentration and toxicity and carry unknown or unpredictable side effects. 

Currently, the importation of illicit drugs is controlled under Part 9.1 of the Code and the « Customs » (Prohibited Imports) Regulations 1956 (Prohibited Imports Regulations).   Both the Code and Prohibited Imports Regulations ban substances based on their chemical composition, with analogue clauses to capture structurally similar substances.

Under the Code, new and harmful drugs, plants and precursors may be criminalised indefinitely by regulation (see sections 301.7 and 301.8) or for up to 18 months under an emergency determination (see sections 301.13 and 301.14), to allow time to assess whether a substance should be listed indefinitely under the Code.  NPS may be added to the Prohibited Imports Regulations, based on the advice of the Therapeutic Goods Administration (TGA) and Office of Chemical Safety (within the Department of Health) about their potential risks and harms.

However, there is evidence that manufacturers design the chemical structures of psychoactive substances to avoid these controls and prohibitions.  Australian governments face difficulties in assessing and banning these substances quickly enough to keep up with the rate of their introduction.

The amendments in Schedule 1 will fill the regulatory gap between when psychoactive substances first appear and when they are controlled under other parts of the Code or under the Prohibited Imports Regulations.  They will ensure that new psychoactive substances cannot be imported while the Government assesses their harms and considers the appropriate controls to place on them.  The measure takes a precautionary approach to dealing with psychoactive substances.  It is intended to work in parallel with, and not replace, any of the existing schemes which regulate the importation of both illicit drugs and substances with a legitimate « use » into Australia.

Schedule 1 introduces a new offence into the Code for importing a psychoactive substance that does not have a legitimate « use » or which is not already prohibited.   As there are no known domestic manufacturers of the active ingredients for new psychoactive substances, these ingredients must be imported.  Banning the importation of these substances is therefore an important part of reducing their supply in Australia.

Schedule 1 also introduces an offence into the Code of importing a substance where its presentation contains a representation that it has the same effects as, or substantially similar effects to, a serious drug, or that it is a lawful alternative to a serious drug.  This offence is necessary to prevent the importation of substances overtly presented in such a way as to suggest they are legal or safe versions of serious drugs.

Schedule 1 also makes a range of amendments to Part XII of the « Customs » Act to allow Australian « Customs » and Border Protection Service (ACBPS) and Australian Federal Police (AFP) officers to exercise appropriate administrative powers to search for, detain, seize and destroy substances prohibited under the new offences in the Code.   These amendments will largely build on the existing powers that officers can exercise in relation to special forfeited goods, modified to give effect to the precautionary approach of the importation ban.



 

Criminal Code Act 1995

Item 1 - After Part 9.1 of the Code

This item will insert a new Part 9.2 into the Code to introduce new offences relating to the importation of psychoactive substances.

Existing Part 9.1 of the Code contains the Commonwealth’s serious drug offences.  Its purpose is to create offences relating to drug trafficking and to give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.  The offences covered by Part 9.1 relate to controlled drugs, plants and precursors as well as border controlled drugs, plants and precursors.  Each of the drugs, plants and precursors to which these offences relate are listed in the Criminal Code Regulations 2002 (Criminal Code Regulations).

Part 9.2 will supplement the offences in Part 9.1 that relate to known and listed substances by introducing a precautionary ban on psychoactive substances whose harms have not yet been assessed.  As evidence about the harms of these psychoactive substances becomes available, they may be listed as serious drugs in the Criminal Code Regulations in accordance with the conditions set out in section 301.7 of the Code, or made subject to an emergency determination under section 301.13.

Section 320.1

New section 320.1 sets out the key definitions for the offences in new sections 320.2 and 320.3.

New subsection 320.1(1) provides definitions for consume , psychoactive effect , psychoactive substance and serious drug alternative .

‘consume’

The term consume is used in the definition of psychoactive substance .  It is defined broadly and intends to outline most of the ways by which a person may introduce a substance into his or her body.

‘psychoactive effect’

The term psychoactive effect is used in the definition of psychoactive substance .  There are two alternate limbs to the definition of psychoactive effect .  The first deals with the physiological effects on a person of consuming a serious drug.  The second deals with the addictive effects of those drugs.  A substance will have a psychoactive effect if it satisfies one of those limbs.

‘psychoactive substance’

The term psychoactive substance is central to the offence in new section 320.2.  A psychoactive substance is defined as a substance which has the capacity to induce a psychoactive effect when consumed by a person.  This is a broad definition, intended to capture all substances that mimic, or have similar effects to, serious drugs listed in the Criminal Code Regulations.  This definition covers many substances, such as alcohol, medicines and industrial chemicals, that have a legitimate « use » and are either low-risk or properly controlled under an existing regulatory regime.   These substances will be excluded from the operation of the offence in new subsection 320.2(1) by virtue of new subsection 320.2(2).

‘serious drug alternative’

The term serious drug alternative is used in relation to the representation of a substance. As there may be similarities in the psychoactive effects of some therapeutic goods and serious drugs, the definition is limited to including only those substances that are represented as having ‘substantially similar’ effects to a serious drug, and not merely ‘similar’ effects.

The term is central to the offence in new subsection 320.3(1), which bans the importation of substances whose presentation includes a representation that they are a serious drug alternative.  When used in relation to the offence in subsection 320.3(1), the definition seeks to capture substances that are presented as either mimicking the psychoactive effects of serious drugs, or as being lawful alternatives of those drugs (for example, substances packaged as ‘legal highs’). 

The term is also used in relation to the exclusion in paragraph 320.2(2)(d) of therapeutic goods from the offence of importing a psychoactive substance.  When used in this paragraph, it aims to ensure that substances that are represented either as mimicking the effects of a serious drug, or as being lawful versions of those drugs, are caught by the offence in subsection 320.2(1) and are not excluded from the offence just because they are also therapeutic goods within the meaning of the Therapeutic Goods Act 1989 (Therapeutic Goods Act).

The term relies on the definition of serious drug in Part 9.1, which includes controlled and border controlled drugs and plants.

New subsection 320.1(2) will provide that expressions used in existing Part 9.1 have the same meaning in Part 9.2.  In particular, new Part 9.2 will rely on the terms import and serious drug as defined in section 300.2 of the Code.

Subsection 320.2(1)

New section 320.2 will create an offence for importing a psychoactive substance. 

New subsection 320.2(1) provides that a person commits an offence if he or she imports a psychoactive substance.  A person faces a maximum penalty of imprisonment for 5 years, 300 penalty units, or both for committing the offence.

To establish that a person has committed an offence against subsection 320.2(1), the prosecution will need to prove beyond reasonable doubt that:

·            the defendant imported a substance (fault element: intention), and

·            the substance was a psychoactive substance (fault element: recklessness).

Subsection 320.2(2)

A number of substances with a legitimate « use » or which are controlled by some other regime may fall within the definition of psychoactive substance .  Some of these substances are used for legitimate purposes—as foods for human consumption or in medicine, industry, agriculture and veterinary practices—and their importation is already regulated under an appropriate regime.   Others may already be controlled as illicit drugs under the Code or Prohibited Imports Regulations.

To the greatest extent possible, new subsection 320.2(1) is not intended to apply to these substances and overlap with controls over them.  The Government has already made a decision about how these substances should be regulated and the penalties that should attach to their unlawful or unauthorised importation.

The effect of the exclusions set out in subsection 320.2(2) is to ensure that substances with a psychoactive effect can only be imported for specific purposes. The offence will ban the importation of a psychoactive substance for all uses or purposes other than those specified in paragraphs 320.2(2)(a)-(i) or in regulations made under paragraph (l).  Under paragraphs 320.2(2)(j) and (k), the offence will also not apply to illicit drugs whose importation is already prohibited.

These provisions are not intended to displace or override the operation of the general defences in the Code, including the defence of lawful authority in section 10.5.

The exclusion of these categories of substances essentially replicates existing practice at the border.  An ACBPS or AFP officer who stops a suspicious substance will refer it to the relevant regulator if there are any potential issues with its importation.  This practice will not change following the introduction of the offence in section 320.2.

Paragraph 320.2(2)(a): food

Paragraph 320.2(2)(a) excludes certain types of food, as defined by the Food Standards Australia New Zealand Act 1991 (Food Standards Act), from the offence in subsection 320.2(1).  Under subsection 5(1) of that Act, food relevantly includes:

(a)            any substance or thing of a kind used, capable of being used, or represented as being for « use » , for human consumption (whether it is live, raw, prepared or partly prepared)

(b)           any substance or thing of a kind used, capable of being used, or represented as being for « use » , as an ingredient or additive in a substance or thing referred to in paragraph (a), above, and

(c)            any substance used in preparing a substance or thing referred to in paragraph (a), above.

Given the breadth of the definition of food in the Food Standards Act, subsection 320.2(2) only seeks to exclude from the operation of the offence those foods that either have health and safety standards set by Food Standards Australia New Zealand, or which have been traditionally used as foods in Australia and New Zealand (and which do not therefore need the same level of regulatory control).  Some of the foods captured by this exemption, such as alcoholic beverages, coffee, tea, chocolate and some herbs and spices, may have a psychoactive effect when consumed by a person.  These are already subject to appropriate regulatory controls around their importation through the Food Standards Code and Imported Food Control Act 1992 (Imported Food Control Act).  It is appropriate that imported food that does not comply with these standards continues to be dealt with under that regulatory regime.

For example, Rebecca would not commit an offence against section 320.2 if she imported a carton of caffeinated drinks that contained in excess of the maximum amount of caffeine set out in the relevant standard of the Australia New Zealand Food Standards Code.  While these drinks would have a psychoactive effect, there is a food standard in relation to them and they would fall within the exclusion under paragraph 320.2(2)(a).  However, Rebecca may have committed an offence against the Imported Food Control Act.

Paragraph 320.2(2)(b): tobacco products

Paragraph 320.2(2)(b) excludes tobacco products, as defined in section 8 of the Tobacco Advertising Prohibition Act 1992 ,  from the offence in subsection 320.2(1).  While tobacco may have a psychoactive effect when used by a person, the offence is not intended to interfere with the regime applicable to the importation of raw or processed tobacco.

For example, Toby would not commit an offence against section 320.2 if he imported a carton of cigarettes.  While cigarettes contain a psychoactive substance, they would be a tobacco product within the meaning of paragraph 320.2(2)(b).

Paragraphs 320.2(2)(c)-(e): therapeutic goods

Paragraphs 320.2(2)(c)-(e) exclude certain types of therapeutic goods from the offence in subsection 320.2(1). The Therapeutic Goods Act regulates the importation of goods that have, are represented as having, or are likely to be taken as having, a therapeutic « use » .   It also regulates the importation of goods whose sole or principal « use » is a therapeutic « use » . As far as possible, that Act should continue to govern the importation of those goods.

Under section 3 of the Therapeutic Goods Act, a good has a therapeutic « use » if it is used in, or in connection with, amongst other things:

·            preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons

·            influencing, inhibiting or modifying a physiological process in persons, or

·            testing the susceptibility of persons to a disease or ailment.

Given the breadth of the definition of therapeutic goods, it potentially captures a range of new psychoactive substances on the basis that they have a therapeutic « use » (within the meaning of paragraph (b), above).   However, the controls in the Therapeutic Goods Act are not designed to deal with psychoactive substances intended for « use » as alternatives to serious drugs.   Paragraphs 320.2(2)(c)-(e) recognise that it is not possible to exclude all ‘therapeutic goods’ within the meaning of the Therapeutic Goods Act from the offence in subsection 320.2(1), and that it is appropriate for the therapeutic goods regime to continue to deal with substances that are:

·            imported for legitimate therapeutic purposes, and

·            not intended for « use » as an alternative to or replacement for a serious drug.

For this purpose, paragraphs 320.2(2)(c)-(e) exclude a range of therapeutic goods from the offence in subsection 320.2(1).  It is possible that the imrportation of particular goods may be an offence under both subsection 320.2(1) and the Therapeutic Goods Act.  However, a person who may have committed offences under both the Code and the Therapeutic Goods Act will be dealt with in accordance with the most appropriate provisions, having regard to all the circumstances. 

  Paragraph 320.2(2)(c) excludes goods that are listed or registered goods, within the meaning of the Therapeutic Goods Act, from the offence in subsection 320.2(1).  For the purposes of the Therapeutic Goods Act , listed or registered goods are therapeutic goods which are listed or registered on the Australian Register of Therapeutic Goods (ARTG).  The ARTG lists or registers specific products for importation and supply by individual sponsors.  Paragraph 320.2(2)(c) is only intended to exclude listed or registered products lawfully imported (that is, by the person in relation to whom the product is listed or registered in the ARTG (or a person acting on their behalf or with their authority)).

Paragraph 320.2(2)(d) excludes from the offence in subsection 320.2(1) goods that are represented in any way to be for therapeutic « use » , unless that representation is that the goods are a serious drug alternative.  This paragraph excludes the importation of goods that are, on their face, more properly regulated under the Therapeutic Goods Act as therapeutic goods.  This paragraph does not exclude from the offence in subsection 320.2(1) goods that are represented to be a serious drug alternative (that is, substances whose physical presentation represents them to either mimic the psychoactive effects of serious drugs or to be lawful alternatives for those drugs). Goods represented in this way and which are not within paragraphs 320.2(2)(c) or (e) should more properly be dealt with under the offences in subsections 320.2(1) or 320.3(1).  Goods represented in any way to be for therapeutic « use » but which are not represented as being a serious drug alternative will not be caught by the offence in section 320.2.  Unless the Therapeutic Goods Act authorises it, their importation would remain an offence under that Act.

Paragraph 320.2(2)(e) excludes from the offence in subsection 320.2(1) therapeutic goods that are exempted from the operation of certain parts of the Therapeutic Goods Act or are the subject of certain approvals under that Act.  Goods falling within this paragraph include those:

·            that are exempt from registration or listing because they are imported as a result of an emergency

·            that are exempt from registration or listing because they are imported solely for « use » for experimental purposes in humans

·            that are exempt from registration or listing because they are imported in any other of the circumstances set out in regulation 12A or Schedules 5 or 5A of the Therapeutic Goods Regulations 1990 (Therapeutic Goods Regulations)

·            unregistered goods that are imported where there is a shortage of a registered medicine, or

·            that are imported for the treatment of individual patients.

This paragraph ensures that therapeutic goods which do not fall within the definitions of the goods specified in paragraphs 320.2(2)(c) and (d) but which can be lawfully imported under the Therapeutic Goods Act are also excluded from the offence in subsection 320.2(1).

The following examples illustrate the operation of the exemptions relating to therapeutic goods in paragraphs 320.2(3)(c)-(e):

·            Carl would not commit an offence against section 320.2 if he imported a painkilling product that had a psychoactive effect, was in all respects the same as one listed on the ARTG and he was not the sponsor of the product.  The painkiller is a psychoactive substance and it is not a listed or registered good within the meaning of the Therapeutic Goods Act (because Carl is not the listed sponsor).  It would not fall within the exemption in paragraph 320.2(2)(c).  However, as the product would be packaged in such a way that it would be represented as being for a therapeutic « use » , it would fall within the exemption in paragraph 320.2(2)(d).   Carl may have committed an offence under the Therapeutic Goods Act.

·            Suzanne would not commit an offence against section 320.2 if she imported a box of pills that had a psychoactive effect and were packaged as an ‘anti-depressant’, but were not listed on or registered under the ARTG or otherwise exempt or approved under the Therapeutic Goods Act.  While these pills are a psychoactive substance, they are represented as being for a therapeutic « use » (and not as a serious drug alternative) and would fall within the exemption in paragraph 320.2(2)(d).   However, Suzanne may have committed an offence under the Therapeutic Goods Act.

·            Robert would commit an offence against section 320.2 if he imported a box of pills that had a psychoactive effect and were labelled ‘legal ecstasy’.  These pills are a psychoactive substance and, while they are represented as being for a therapeutic « use » (within the meaning of the Therapeutic Goods Act), they are also represented as being a lawful alternative to a serious drug.   They would not fall within the exemption in paragraph 320.2(2)(d).  Robert would also commit an offence against section 320.3.

·            Luke would commit an offence against section 320.2 if he imported a bag of leaves that had a psychoactive effect and were labelled ‘Legal high - as good as marijuana!’.  These leaves are a psychoactive substance and, while they are represented as being for a therapeutic « use » (within the meaning of the Therapeutic Goods Act), they are also represented as having the same effects as, or substantially similar effects to, a serious drug, and as being a lawful alternative to such a drug.   They would not fall within the exemption in paragraph 320.2(2)(d).  Luke would also commit an offence against section 320.3.

·            Kate would not commit an offence against section 320.2 if she imported a new drug with a psychoactive effect for experimental « use » in treating influenza and had obtained the relevant approvals from the Department of Health.   While the drug would be a psychoactive substance, its importation is subject to an approval under section 19 of the Therapeutic Goods Act and the goods would fall within the exclusion under paragraph 320.2(2)(e).

Paragraphs 320.2(2)(f)-(h): agricultural and veterinary chemicals

Paragraphs 320.2(2)(f) and (g) exclude all agricultural and veterinary chemical products from the offence in section 320.2(1). Agricultural and veterinary chemical products are defined in the Agricultural and Veterinary Chemicals Code Act 1994 (Agvet Code) by reference to their actual or represented « use » in agriculture or veterinary science.

These paragraphs also exclude from the offence a range of substances that have been specifically exempted from the requirements of the Agvet Code, including those excluded under the Agricultural and Veterinary Chemicals Code Regulations and substances prepared by or in accordance with the instructions of a veterinary surgeon in the course of his or her profession.  The controls in the Agvet Code and Agricultural and Veterinary Chemicals (Administration) Act 1992 (Agvet Administration Act) should continue to govern the importation of these substances.

Paragraph 320.2(2)(h) also excludes those active constituents for proposed or existing agricultural and veterinary chemical products that have been approved, exempted from the importation offence in the Agvet Administration Act, or are imported subject to written permission from the Australian Pesticides and Veterinary Medicines Authority (APVMA) under the Agvet Administration Act.  Active constituents for agricultural and veterinary chemical products may have a psychoactive effect in humans and only those that have been considered and appropriately dealt with under the Agvet Code and Agvet Administration Act should be excluded from the offence in subsection 320.2(1).  The exclusion of only certain active constituents may result in an overlap between an offence in the Agvet Code or Agvet Administration Act and the offence in subsection 320.2(1). A person who may have committed multiple offences will be dealt with in accordance with the most appropriate provisions, having regard to all the circumstances.

For example, Margaret would not commit an offence against section 320.1 if she imported an animal tranquiliser that was not registered with the APVMA and which had psychoactive effects when consumed by a person.  While the substance would be a psychoactive substance, it would be a veterinary chemical product and would fall within the exemption in paragraph 320.2(2)(g).  However, Margaret may have committed offences against the Agvet Administration Act, Agvet Code and state or territory laws controlling the « use » of veterinary chemical products.

Paragraph 320.2(2)(i): industrial chemicals

Paragraph 320.2(2)(i) excludes industrial chemicals, within the meaning of the Industrial Chemicals (Notification and Assessment) Act 1989 (ICNA Act), from the offence in section 320.2(1). The ICNA Act provides a system for the notification and assessment of the occupational health and safety, public health and environmental risks associated with the importation, manufacture and « use » of industrial chemicals.   The importation of industrial chemicals is appropriately regulated under the ICNA Act. 

The ICNA Act applies to all industrial chemicals. For the purposes of the ICNA Act, a substance is an industrial chemical if it has a « use » other than an excluded « use » .   Under the ICNA Act, substances which have one or more excluded uses as defined in that Act (as a food or food additive, for therapeutic purposes or as an agricultural or veterinary chemical) are not industrial chemicals. However, substances that have one or more excluded uses and another non-excluded « use » will be industrial chemicals for the purposes of the ICNA Act. The importation of these substances is more appropriately controlled by the ICNA Act than by the offence in subsection 320(1).

It is important to note that psychoactive substances imported for « use » as alternatives to serious drugs are not industrial chemicals. They will be excluded from the definition of industrial chemicals on the basis that they are used as foods or are for therapeutic « use » , as those terms are defined in subsection 7(2) of the ICNA Act. The exclusions for foods and therapeutic goods under the ICNA Act are wider than their exclusion from section 320.2. Foods and therapeutic goods excluded from the operation of subsection 320.2(1) under paragraphs 320.2(2)(a) and (c)-(e) are a subset of foods and therapeutic goods excluded from the operation of the ICNA Act.  Psychoactive substances that are foods or therapeutic goods for the purposes of the ICNA Act, but which are not foods or therapeutic goods for the purposes of paragraphs 320.2(2)(a) and (c)-(e) are most appropriately dealt with by the Code.

Psychoactive substances that have both an excluded « use » under the ICNA Act and a non-excluded « use » will fall within the definition of ‘industrial chemical’ under the ICNA Act and paragraph 320.2(2)(i). These substances are being imported for an industrial « use » and it is appropriate that their importation is subject to the controls under the ICNA Act.

For example, Jonathan would not commit an offence against section 320.2 if he imported glue for the manufacture of goods that had a psychoactive effect when consumed by a person, and which did not comply with the assessment or registration requirements of the ICNA Act. While the glue is a psychoactive substance, it has an industrial « use » and falls within the exemption in paragraph 320.2(2)(i). However, Jonathan may have committed an offence against the ICNA Act.



 

Paragraph 320.2(2)(j): serious drugs

Paragraph 320.2(2)(j) excludes from the offence in subsection 320.2(1) substances already dealt with under the serious drug offences in Part 9.1 of the Code. This includes substances listed as controlled or border controlled drugs, plants and precursors. It will also include analogues of controlled and border controlled drugs. While these substances are psychoactive, the Government has already assessed the harms associated with these substances and they should be subject to penalties that apply to their importation and handling as set out in Part 9.1. 

Paragraph 320.2(2)(k): prohibited imports

Paragraph 320.2(2)(k) excludes prohibited imports within the meaning of the « Customs » Act from the offence in subsection 320.2(1). Prohibited imports, including prohibited drugs, include known psychoactive substances. As above, such substances are appropriately controlled under the « Customs » Act and should be excluded from the offence in subsection 320.2(1).

Paragraph 320.2(2)(l): regulations

Paragraph 320.2(2)(k) excludes substances prescribed by the regulations from the offence in subsection 320.2(1). This provision will allow the Governor-General to make regulations to allow the importation of specific substances or classes of substances that have a legitimate « use » but do not fall within one of the existing exclusions.

320.2(2): burden of proof

In proceedings for an offence against subsection 320.2(1), the defendant bears the evidential burden for proving that a substance falls within one of the exclusions in paragraphs 320.2(2)(a) to (l). This relies on subsection 13.3(3) of the Code.

It is appropriate for the defendant to bear the evidential burden of proving that a substance is excluded from the offence in subsection 320.2(1). The exclusions listed in subsection 320.2(2) primarily relate to the intended « use » of the substance. The intended « use » of a substance is a matter peculiarly within the knowledge of the owner or importer of the goods. Evidence of the intended « use » of the substance, including its compliance with applicable regulatory standards, will be readily available from the owner’s or importer’s business or personal records.

Further, there are twelve categories of substances that are excluded from the offence of importing a psychoactive substance. If the onus was on the prosecution, it would have to prove beyond reasonable doubt that the imported substance did not fit within each of the twelve excluded categories before a charge could be made out. Given the nature of the evidence required, this would be significantly more difficult and costly than it is for the defendant to raise evidence that the substance fell in one exclusion category.

Subsection 320.2(3)

New subsection 320.2(3) makes it clear that the exclusions to the offence will not apply to substances to which a psychoactive substance (other than those excluded by paragraphs 320.2(2)(a)-(l)) has been added. The purpose of the new subsection is to ensure that a person cannot escape the offence in subsection 320.2(1) by modifying a substance that would otherwise fall within an exclusion in subsection 320.2(2), to include a substance that would ordinarily be caught by the offence. 

For example, Frances would commit an offence against subsection 320.2(1) if she imported cigarettes that contained a mix of tobacco and a psychoactive substance that was not tobacco.  While the cigarettes would be a tobacco product, they contain a non-tobacco psychoactive substance and Frances would not be able to rely on the exclusion in paragraph 320.2(2)(b).

Subsection 320.2(4)

New subsection 320.2(4), which is based on section 300.5 in Part 9.1 of the Code, clarifies that, in a prosecution for an offence against new subsection 320.2(1), the prosecution need only prove that the defendant knew, or was reckless as to whether, the substance he or she imported was a psychoactive substance. The prosecution will not be required to prove that the defendant knew, or was reckless as to, the precise identity of the substance or its precise effects.

This subsection is important as importers, sellers and users of new psychoactive substances frequently do not know their precise chemical structure or their exact effects.  The ingredients in psychoactive substances are frequently misdescribed and can produce effects not anticipated by suppliers or users. It is appropriate for the offence to prevent people from importing a psychoactive substance, even if it is not the precise substance they intended to import, or if it does not have the precise effects they anticipated.

Section 320.3

New section 320.3 will create an offence for importing a substance whose presentation, including its labelling or packaging, makes or contains an express or implied representation that the substance is a serious drug alternative.

New subsection 320.3(1) provides that a person commits an offence if he or she imports a substance and that substance is presented in such a way, including through its labelling or packaging, that it expressly or implicitly represents the substance to either have the same, or substantially similar effects to, a serious drug, or to be a lawful alternative to such a drug.  A person faces a maximum penalty of imprisonment for 2 years, 120 penalty units, or both for committing an offence against section 320.3.

This offence will rely on the default fault elements, set out in Division 5 of the Code.  To establish that a person has committed an offence against subsection 320.3(1), the prosecution will need to prove beyond reasonable doubt that:

·            the defendant imported a substance (fault element: intention), and

·            the presentation of the substance included an express or implied representation that the substance was a serious drug alternative (fault element: recklessness).

This offence is intended to ban the importation of substances whose physical presentation represents them to either:

·            mimic the psychoactive effects of illicit drugs listed as controlled or border controlled drugs or plants under the Code, or

·            be lawful alternatives for those drugs.

It is not necessary, in a prosecution for an offence against subsection 320.3(1), for the prosecution to prove that the substance had a psychoactive effect.  The offence depends only on the physical presentation of the substance.

The offence applies only to representations about the substance that are made as a result of the physical presentation of the substance. 

The offence applies to representations that are explicit—in the sense that they are directly made by the presentation of the substance—and those that are implicit—in the sense that they rely on a person’s knowledge of the illicit drug market.  An example of an explicit representation would be where the labelling of a substance stated that it was a ‘legal high’ or ‘synthetic cannabis’. An example of an implicit representation would be where the packaging of a substance suggested it was a new version of an illicit drug by drawing on the drug’s street name, such as ‘New Kronic’ (‘Kronic’ is a product name which has been used to market synthetic cannabinoids which are prohibited as border controlled drugs under the Code).

Subsection 320.3(2) clarifies that the presentation of the substance includes matters relating to the name of the substance, the way it is labelled or packaged, and any advertising or other informational material associated with the substance. This is not an exclusive explanation, and the presentation of a substance could also include the colouring or shape of the substance, or any markings on the that suggest it is a serious drug alternative.

Subsection 320.3(3) lists a range of substances that are excluded from the offence in subsection 320.3(1).

There may be some substances that have a legitimate « use » and whose presentation is regulated under another regulatory regime, but which may be caught by the offence in subsection 320.3(1).   For example, the labelling or packaging of a legal painkiller may suggest it has similar effects to those of an illicit opioid, but that it is to be used for lawful therapeutic purposes. As much as possible, the offence in subsection 320.3(1) is not intended to interfere with the presentation requirements of other regulatory regimes (in this case, the therapeutic goods regime). A substance presented in compliance with the requirements and standards of one of those regimes should not be prohibited from importation under subsection 320.3(1).

Paragraph 320.3(3)(a) excludes certain types of food, as defined by the Food Standards Act, from the offence in subsection 320.3(1). Food for which there is a standard will be excluded from the offence.  Such foods are appropriately regulated under the Food Standards Act, which will deal with their labelling, display, ingredients and safety. 

The exclusion will not apply to the presentation of other foods for which there is no standard, or which do not have a history of « use » in Australia and New Zealand in the form in which they are presented. Where these foods are presented as being a serious drug alternative, they will be subject to the offence in section 320.3(1).

Paragraphs 320.3(3)(b) and (c) exclude certain types of therapeutic goods from the offence in subsection 320.3(1). These exclusions are necessary as the packaging or labelling of some therapeutic goods may suggest that they have similar pharmacological effects to those of serious drugs.  Those therapeutic goods have been assessed and appropriate controls placed on their presentation under the Therapeutic Goods Act.

The exclusion in paragraph 320.3(3)(b) is to put beyond doubt that therapeutic goods that are listed or registered on the ARTG and imported by the person in relation to whom they are listed or registered (or a person acting on their behalf or with their authority) are excluded from the offence.  The TGA has assessed these goods and placed appropriate controls on their presentation. They should be dealt with under the Therapeutic Goods Act, not the offence in subsection 320.3(1).

The exclusion in paragraph 320.3(3)(c) applies to goods that are exempted from the operation of certain parts of the Therapeutic Goods Act or are subject to approvals under that Act.  Goods falling within this paragraph include those:

·            that are exempt from registration or listing because they are imported as a result of of an emergency

·            that are exempt from registration or listing because they are imported solely for « use » for experimental purposes in humans

·            that are exempt from registration or listing because they are imported in any other of the circumstances set out in regulation 12A or Schedules 5 or 5A of the Therapeutic Goods Regulations

·            unregistered goods that are imported where there is a shortage of a registered medicine, or

·            that are imported for the treatment of individual patients.

This paragraph ensures that therapeutic goods which do not fall within paragraphs 320.3(3)(b) or (c) but which can be lawfully imported under the Therapeutic Goods Act are also excluded from the offence in subsection 320.3(1).

Other therapeutic goods will only fall within the offence in subsection 320.3(1) if their presentation represents them to be a serious drug alternative.  Appropriate controls have not necessarily been placed around the presentation of these substances.  Accordingly, it will be open for authorities to deal with these substances in the most appropriate manner in the circumstances, whether under the offence in subsection 320.3(1) or under the Therapeutic Goods Act.

Paragraphs 320.3(3)(d) and (e) exclude all agricultural and veterinary chemical products and their active constituents that can be lawfully imported into Australia under the Agvet Code and Agvet Administration Act.  These paragraphs ensure that substances that comply with the regulatory scheme set out in that Code and Act will not be caught by the offence in subsection 320.3(1), even where their presentation may include a representation that they are a serious drug alternative.  The APVMA has already assessed these substances and instituted appropriate controls around their « use » and presentation.   The exclusion of only certain agricultural and veterinary chemical products and their active constituents may result in an overlap between an offence in the Agvet Code or Agvet Administration Act and the offence in subsection 320.2(1).  A person who may have committed multiple offences will be dealt with in accordance with the most appropriate provisions, having regard to all the circumstances.

Paragraph 320.3(3)(f) excludes substances prescribed by the regulations from the offence in subsection 320.3(1). This provision will allow the Governor-General to make regulations to allow the importation of specific substances or classes of substances that have a legitimate « use » but do not fall within one of the existing exclusions.

In proceedings for an offence against subsection 320.3(1), the defendant bears the evidential burden for proving that a substance falls within one of the exclusions of paragraphs 320.3(3)(a) to (c), in reliance on subsection 13.3(3) of the Code.

It is appropriate for the defendant to bear the evidential burden of proving that a substance is excluded from the offence in subsection 320.3(1).  The exclusions listed in subsection 320.3(3) primarily relate to the intended « use » of the substance.   This is a matter peculiarly within the knowledge of the owner or importer of the goods.  Evidence of the intended « use » of the substance, including its compliance with applicable regulatory standards, will be readily available from their business or personal records.

Further, if the onus was on the prosecution, it would have to prove beyond reasonable doubt that the imported substance did not fit within each of the excluded categories before a charge could be made out.  Given the nature of the evidence required, this would be significantly more difficult and costly than it would be for the defendant to raise evidence that the substance fell in one exclusion category.

Subsection 320.3(4)

New subsection 320.3(4), which is based on section 300.5 in Part 9.1 of the Code, clarifies in paragraph (a) that, in a proceeding for an offence against subsection 320.3(1), it is enough that the representation related to the substance being an alternative to any serious drug (whether because of its effects or purported lawfulness).

Paragraph 320.3(4)(b) clarifies that, in a proceeding for an offence against subsection 320.3(1), the prosecution does not need to show that the defendant intended for people to understand that the relevant representation related to a particular serious drug.  It will be enough for a prosecution to prove that the representation was that the substance was an alternative to any serious drug (whether because of its effects or purported lawfulness), and that the defendant knew, or was reckless as to, that fact.

Paragraph 320.3(4)(c) clarifies that the prosecution does not need to prove that the defendant knew, or was reckless as to, the precise identity of the substance or its precise effects.  As noted above, in any case, it is not necessary for the prosecution to prove that the substance had a psychoactive effect at all as the offence in subsection 320.3(1) depends only on the physical presentation of the substance.

These paragraphs are necessary to give effect to the purpose of the offence, which is to prevent the importation of substances presented as alternatives, lawful or otherwise, to listed illicit drugs.  The representation of psychoactive substances in this manner is not appropriate.  Representing a substance as a ‘legal’ alternative to illicit drugs may encourage a person to « use » these drugs on the assumption that they have been tested and assessed as safe when compared to more established illicit drugs.   This is incorrect—these substances are typically untested, of varying concentration and toxicity and carry unknown or unpredictable side effects.

These paragraphs are also necessary because manufacturers, importers, sellers and users frequently do not know the precise chemical structure and exact effects of substances they import.  The ingredients in psychoactive substances are frequently misdescribed and can produce effects not anticipated by suppliers or users.

In these circumstances, it should not matter whether the person importing the substance intends to present it as being the same as, substantially similar to, or a lawful alternative to, a particular serious drug.  It is enough that the person knows, or is reckless as to, the fact that the representation is about any serious drug.

« Customs » Act 1901

Items 2 to 13 make a range of amendments to Part XII of the « Customs » Act, which sets out the powers of officers to search for and seize goods that are imported unlawfully, and provides mechanisms for the forfeiture of those goods.   These amendments ensure that ACBPS and AFP officers can exercise these powers over, and that the forfeiture mechanisms apply to, substances banned under new sections 320.2 and 320.3 of the Code.

While the amendments will largely extend the existing powers and mechanisms to psychoactive substances and goods presented as serious drug alternatives, they will also create a new procedure for dealing with claims for the return of seized psychoactive substances.  This procedure will require a person whose goods have been seized on suspicion or belief that they are a prohibited psychoactive substance to commence court action to recover their goods.  This is necessary to give effect to the precautionary nature of the ban and ensure that substances whose harms have not been assessed cannot be imported.

Item 2 - Subsection 183UA(1)

The « Bill » will amend subsection 183UA(1) to insert definitions of prohibited psychoactive substance and prohibited serious drug alternative.   These amendments are necessary to ensure that ACBPS and AFP officers can exercise their existing search and seizure powers against substances that are captured by the new offences in the Code, and to provide mechanisms for their forfeiture once they have been seized.

The term prohibited psychoactive substance refers to any substance that would be caught by the new offence in section 320.2 of the Code.  That offence applies to all psychoactive substances, unless they are excluded under subsection 320.2(2) of the Code.  Substances that are excluded from the offence will also be excluded from this definition.   

The term prohibited serious drug alternative refers to any substance caught by the new offence in section 320.3 of the Code.  That offence applies to all substances whose presentation (including, but not limited to, its labelling or packaging) contains an express or implied representation that the substance is a serious drug alternative, unless the substance is excluded under subsection 320.3(3) of the Code.   

Item 3 - Subsection 183UA(1) (paragraph (a) of the definition of special forfeited goods )

The « Bill » will amend the definition of special forfeited goods in subsection 183UA(1)to include prohibited psychoactive substances and prohibited serious drug alternatives.   This will allow ACBPS and AFP officers to exercise over prohibited psychoactive substances or serious drug alternatives their existing powers to search for, detain and seize without a warrant goods which they suspect are special forfeited goods.  Officers will also be able to seek warrants to search for and seize these substances. 

Item 4 - Section 205D (heading)

This « amendment » is consequential to the « amendment » in item 7, which establishes an alternative process for dealing with claims for the return of goods seized on the suspicion or belief that they are prohibited psychoactive substances.



 

Item 5 - After subsection 205D(1)

This item is also consequential to the « amendment » in item 7.  The item inserts new subsection 205D(1A) to ensure that the existing procedure for dealing with claims for the return of goods under section 205D will not apply to goods seized on suspicion or belief that they are prohibited psychoactive substances.  

Item 6 - At the « end » of section 205E

This « amendment » is also consequential to item 7. This item inserts new subsection 205E(4) to ensure that the existing process for allowing ACBPS to seek an extension of time from a magistrate to deal with disputes over the seizure of special forfeited goods set out in section 205E does not apply to goods seized on suspicion or belief that they are prohibited psychoactive substances.  

Item 7 - After section 205E

This item establishes an alternative process for dealing with claims for the return of goods seized on the suspicion or belief that they are prohibited psychoactive substances.  This procedure is necessary to give effect to the precautionary nature of the ban on the importation of these substances.  If a person cannot prove that a seized substance either does not have a psychoactive effect or that it is a psychoactive substance that falls within one of the exclusion categories in paragraphs 320.2(2)(a)-(i) or (l) of the Code because it has a legitimate « use » , then it will be condemned as forfeited on the basis that it is a prohibited psychoactive substance.

Prohibited serious drug alternatives will be dealt with in accordance with existing procedures for resolving claims for the return of seized goods.  An officer will be more readily able to determine whether or not a substance is a prohibited serious drug alternative, particularly because there are only a very limited range of potential legitimate uses for such a substance (see paragraphs 320.3(3)(a)-(e) of the Code).  An importer should also be able to establish compliance with the requirements of the relevant regulatory regime with relative ease.

Subsection 205EA - Treatment of goods seized if a claim for return is made—suspected prohibited psychoactive substances

Subsection 205EA(1) will set out the circumstances in which a person may make a claim to recover a seized substance.  The procedure in subsection 205EA will only apply:

·            to goods seized on the reasonable suspicion, or under a seizure warrant on the reasonable belief, that they are or contain a prohibited psychoactive substance

·            where the owner may make a claim for their return under section 205B, and

·            where the owner has, in fact, made such a claim within 30 days of being served with a seizure notice under existing section 205 (failure to do so will lead to the goods being condemned as forfeited to the Crown under section 205C).

Subsection 205EA(2) will require ACBPS to notify a person claiming the return of a prohibited psychoactive substance of the procedure for resolving his or her claim and the consequences for failing to abide by relevant timeframes.  The subsection will provide that, where a prohibited psychoactive substance has been seized, and the owner has made a claim for its return, the Chief Executive Officer of ACBPS (CEO) must return that substance unless one of two circumstances exists. 

The first circumstance is where the goods have been dealt with and disposed of or destroyed under section 206 and their return is physically impossible.  Section 206 also sets out the procedure for seeking compensation for goods disposed of in accordance with that section.  The second circumstance is where, not later than 30 days after the day the claim for return of the goods is made, the CEO gives the claimant written notice that the goods will be condemned as forfeited unless the claimant institutes proceedings against the Commonwealth, within 30 days after receiving that notice, to either recover the goods or to seek a declaration that the goods are not forfeited.

The procedure in this subsection, in combination with the requirement under existing subsection 205B(2) that a person provide a written claim for return that includes the grounds on which the claim is made, gives a person whose goods have been seized an opportunity to provide further information about those goods to ACBPS.  It also gives ACBPS an opportunity to consider whether, based on all the information available to it, the goods it has seized are a prohibited psychoactive substance.  This will reduce the potential for unnecessary disputes over goods which should be returned. 

Subsection 205EA(4) sets out the procedure for dealing with goods once a person has made a claim for their return and the CEO has provided him or her with a notice under subsection 205EA(2).  Unlike the procedure in current section 205D, the onus to institute proceedings will be on the person seeking to recover seized goods.

Under paragraph 205EA(4)(a), the goods will be condemned as forfeited to the Crown if the claimant does not institute proceedings for the recovery of the goods, within 30 days of being served with a notice under paragraph 205EA(2)(a).  Subject to any extension of time granted under section 205EB, a person will have between 60 and 90 days from when he or she has been notified of the seizure of goods to commence proceedings for their recovery.

Under paragraph 205EA(4)(b), the goods will be condemned as forfeited to the Crown unless the claimant obtains one or more of the following at the « end » of the proceedings:

(i)         an order for the claimant to recover the goods; or

(ii)       an order for the Commonwealth to pay the claimant the market value of the goods at the time they were disposed of or destroyed; or

(iii)     a declaration that the goods were not forfeited.  

In proceedings for the recovery of seized goods under new section 205EA, a claimant may prove that the goods were not a prohibited psychoactive substance on the basis that they were exempted under subsection 320.2(2) of the Code (under new paragraph 205EC(2)(b), the claimant will bear the onus of proving this matter).  In doing so, an importer may show that the goods are unlawful under the regulatory scheme relevant to the exemption in subsection 320.2(2) of the Code.  In practice, this will mean that the claimant would not be able to recover the goods unless he or she had the relevant authorisation or permission to import them, or they were otherwise exempt from the requirements of the relevant regulatory scheme.

For example, Paul proves to a Court that goods seized on suspicion of being a prohibited psychoactive substance were, in fact, a weed killer, which is an agricultural chemical product.  Such goods would not be prohibited psychoactive substances by virtue of paragraph 320.2(2)(f) of the Code.  However, in order to legally import the goods, Paul must also have authorisation or permission to import the goods, or they are exempt from such a requirement. Unless he has obtained this permission or authorisation, or the goods fall under an exemption in the Agvet Code or Administration Act that did not require specific permission or authorisation, the court may not make one of the orders listed in subparagraphs 205EA (4)(b)(i)-(iii).  Prohibited psychoactive substances that are condemned as forfeited to the Crown become the property of the Commonwealth under section 205G.  They may then be dealt with in accordance with the directions of the CEO, under section 208D.

The effect of subsection 205EA(4), in combination with sections 205G and 208D, is that ACBPS will be able to dispose of prohibited psychoactive substances where the importer has not established that they are a legitimate import.  This will assist in ensuring that prohibited psychoactive substances do not reach the market and put users at risk of serious harm or death. 

Subsection 205EA(5) sets out when proceedings that go to judgment « end » for the purposes of subsection 205EA(4) and, therefore, when ACBPS will be able to dispose of prohibited psychoactive substances.   If there is no appeal against the judgment, proceedings will « end » under paragraph 205EA(5)(a) once the period for lodging an appeal has expired.   If there is an appeal against the judgment, the proceedings will « end » under paragraph 205EA(5)(b) once the appeal lapses or is finally determined.

Subsection 205EA(6) makes it clear that goods must, as much as is practicable, not be degraded while held by ACBPS,  The subsection will also clarify that, if goods are to be returned, they should only be returned to the person that ACBPS reasonably believes to be their owner.

Section 205EB - Extending the period for instituting proceedings for recovery of suspected prohibited psychoactive substances

Section 205EB will provide a mechanism for a person who has been given a written notice under new paragraph 205EA(2)(b) that his or her goods will be forfeited to seek an extension of the 30 day period in which to bring a claim.  This provision is intended to provide a claimant with the opportunity to seek more time to prepare information in order to commence proceedings for the recovery of the goods, without the possibility that the ACBPS might dispose of or destroy the goods.  A person may not obtain such an order if he or she has unreasonably delayed in assembling information in relation to potential proceedings.

Subsection 205EB(1) provides that a claimant has a time limit for making an application for an extension of time.  He or she must apply to a magistrate before the « end » of:

(a)     30 days after being served with the notice under paragraph 205EA(2)(b), or

(b)    any further period of time that a magistrate may order ACBPS to retain the goods.

A magistrate has a discretion whether or not to grant an extension of time under subsection 205EB(2).

A claimant may apply for, and a magistrate may grant, multiple extensions of time, subject to the claimant satisfying the conditions in paragraphs 205EB(2)(a) and (b).

Section 205EC - Proceedings for recovery of suspected prohibited psychoactive substances

Section 205EC sets out a range of procedural matters in relation to proceedings for the return of seized prohibited psychoactive substances. 

Subsection 205EC(1) provides that proceedings may be commenced or continued even if the goods to which the proceedings relate are disposed of or destroyed.  In the event that goods have already been disposed of or destroyed, a person may be able to seek compensation in lieu of recovering the goods (see subsection 205EC(3)).

Subsection 205EC(2) specifies the burden of proof in proceedings for the recovery of suspected prohibited psychoactive substances.  Under paragraph 205EA(2)(a), the Commonwealth will bear the onus of establishing that the goods to which the proceedings relate were imported.  The person instituting proceedings will bear the onus of proving that the goods are not otherwise a prohibited psychoactive substance.

To recover the goods, the person instituting the proceedings will have to prove that:

(a)       the substance is not a prohibited psychoactive substance on the basis that it is either:

(i)        not a psychoactive substance within the meaning of subsection 320.1(1) of the Code because it does not have the capacity to induce a psychoactive effect when consumed by a person, or

(ii)      excluded from being a prohibited psychoactive substance because it falls within one or more of the legitimate « use » exceptions set out in subsection 320.2(2) of the Code.

If a claimant is able to prove that the substance is not a prohibited psychoactive substance on the basis that it falls within one of the legitimate « use » exceptions in subsection 320.2(2) then, in practice, he or she will not be able to import the substance unless:  

(i)        he or she has the relevant permission or authorisation to import the substance under the relevant regulatory regime, or

(ii)      authorisation was not required, or the substance fell within an exemption that did not require specific permission or authorisation to import, under the relevant regulatory regime.

Requiring the person instituting proceedings to prove that a seized substance is not a prohibited psychoactive substance is necessary to assist in protecting public health.  Placing the onus on the claimant will assist in preventing the importation of unknown, unassessed and potentially dangerous substances which are intended for human consumption.  It is incumbent upon an importer to:

·            be aware of the purpose for which he or she is importing a substance

·            obtain all relevant and necessary authorisations and permissions for that importation, and

·            where the substance does not fit within one of the exemptions in subsection 320.2(2) of the Code—and particularly where it is intended for human consumption—be aware of whether its consumption has the capacity to induce a psychoactive effect.

It will be peculiarly within the importer’s knowledge whether a substance fits within one of the existing regulatory schemes or exemptions in subsection 320.2(2) of the Code and may therefore be imported.  If the substance is being imported for a legitimate purpose, evidence about the intended « use » of the substance will be readily available from the importer’s business or personal records.

Further, the exemptions in paragraphs 320.2(2)(a)-(i) of the Code set out very broad categories of goods with legitimate uses that can be imported.  This is supplemented by the ability of the Governor-General to list further specific substances or categories of uses under paragraph 320.2(2)(l) of the Code.  If a substance has a legitimate « use » and is not being imported for « use » or supply as an alternative to an illicit drug, proving this on the balance of probabilities will not be an onerous task.

Similarly, a person will have a number of opportunities prior to going to Court to recover the goods to convince ACBPS that they are not a prohibited psychoactive substance and that either the goods should not be seized or, if they have been seized, they should be released.  As outlined above, a person will be able to provide information to ACBPS (or the AFP) about the substance, its effects and intended « use » :

·            before the goods are seized, when they are stopped at the border

·            after the goods have been seized and before proceedings are commenced, when he or she lodges a claim for the return of the goods under subsection 205B, and

·            when he or she commences proceedings for the recovery of the goods, following a notice from the CEO under subsection 205EA(2).  

At each point set out above, ACBPS (or the AFP, before the goods are passed to ACBPS) will examine the information before it and assess whether the goods are likely to be a prohibited psychoactive substance or whether they should be returned to their owner. 

In these circumstances, it is reasonable to require a person who disputes the seizure of a substance on the grounds that an officer reasonably suspects or believes it is a prohibited psychoactive substance to prove that it is lawfully able to be imported.

Subsection 205EC(3) provides for a compensation mechanism for a person whose goods have been seized and disposed of or destroyed before the conclusion of proceedings.  In these circumstances, subsection 205EC(3) provides that, if the court hearing the proceedings decides it would have ordered goods to be released to the person who instituted proceedings, the Commonwealth must pay the claimant the market value of the goods, determined at the time they were destroyed.  This will ensure that importers are not unfairly punished if their goods are mistakenly seized and disposed of or destroyed. 

Item 8 - Subsection 205F(1)

This « amendment » is consequential to the amendments in item 7.

Section 205F gives a person the right to seek compensation for the loss of goods that have been forfeited to the Commonwealth because the person failed to make a claim for their return under section 205B in the required timeframe. This « amendment » will ensure that this subsection applies where goods are condemned as forfeited to the Crown as a result of a person’s failure to initiate proceedings to recover the goods, in accordance with paragraph 205EA(5)(a).

If the person has a reasonable excuse for failing to commence proceedings in time, or for failing to seek an extension of the time in which to commence those proceedings under section 205EB, he or she may seek compensation for the forfeiture of the goods under section 205F. 

Item 9 - After subsection 206(2)

Section 206 provides for the immediate disposal of certain dangerous goods.  New subsection 206(2A) will allow ACBPS to dispose of prohibited psychoactive substances and prohibited serious drug alternatives, consistent with the treatment of other dangerous goods.  This provision is necessary to ensure that ACBPS does not need to retain possession of dangerous and illicit drugs for any longer than necessary.

Under new subsection 206(2A), the CEO or Regional Director for a State or Territory will be permitted to cause the goods to be dealt with in such a manner as he or she considers appropriate (including to destroy the goods), provided that:

(a)       the goods were seized under a seizure warrant or under subsection 203B(2) or (2A), 203CA(3) or 203CB(2) on the reasonable suspicion that they were a prohibited psychoactive substance or prohibited serious drug alternative; and

(b)       the CEO or Regional Director is satisfied that the goods are a prohibited psychoactive substance or a prohibited serious drug alternative.

If a person’s goods are incorrectly destroyed under these powers, he or she will have the right to recover the market value of the goods at the time they were destroyed. 

Item 10 - Subsection 206(3)

This « amendment » is consequential to the amendments in item 9.

Item 11 - Subsection 206(5)(c)

This « amendment » is also consequential to the amendments in item 9.

Item 12 - Subsection 206(6) and (7)

This « amendment » is also consequential to the amendments in item 9.

Item 13 - Section 208D

This « amendment » is consequential to the amendments in item 7.

Section 208D sets out the manner in which goods that are forfeited, or condemned as forfeited, to the Crown are to be dealt.   Unless the goods are narcotic-related goods, they are to be dealt with and disposed of in accordance with the directions of the CEO.  The « Bill » will amend subsection 208D so that it applies to goods condemned as forfeited under section 205EA.



 

Schedule 2 - Firearms trafficking offences

GENERAL OUTLINE

Schedule 2 makes amendments to the Criminal Code Act 1995 (the Code) and the « Customs » Act 1901 (the « Customs » Act).

Schedule 2 introduces a mandatory minimum sentence of five years’ imprisonment for illegal firearms trafficking.  The implementation of a mandatory minimum of five years’ jail for trafficking of firearms and firearm parts in the Code is part of a policy to pursue a strong and nationally consistent approach to gun crime.

Schedule 2 also creates a new offence for trafficking firearm parts, by extending existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia to include firearm parts. This is necessary to ensure that criminals cannot evade trafficking offences and penalties by breaking firearms down and trafficking their constituent parts.

In addition to expanding existing offences relating to trafficking of firearms to firearm parts, the amendments also insert new international firearm trafficking offences into the Code. The current cross-border firearms trafficking offences in the Code cover firearms trafficking between States and Territories, but do not encompass trafficking of firearms into and out of Australia. In order to comprehensively criminalise firearms trafficking, it is appropriate to criminalise trafficking firearms (and firearm parts) into or out of Australia, as well as across State and Territory borders.

Schedule 2 will give effect to this by:

·          creating new international firearms offences of trafficking prohibited firearms and firearm parts into and out of Australia (new Division 361 of the Code)

·          extending the existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia in Division 360 of the Code to include firearm parts as well as firearms, and

·          introducing a mandatory minimum five year term of imprisonment for the new offences in Division 361 and existing offences in Division 360 of the Code.



 

Criminal Code Act 1995

Item 1 - Section 360.1

Item 1 repeals the heading of Section 360.1 ‘Disposal and acquisition of a firearm’ and substitutes ‘Disposal and acquisition of a firearm or firearm part’.

Section 360.1 currently defines the conduct that constitutes the disposal and acquisition of a firearm for the purposes of the offence in Section 360.2.  The « amendment » to the title of the section reflects the extension of Division 360 to firearm parts as well as firearms.

Item 2 - Subsection 360.1(1)

Item 2 amends subsection 360.1(1) by inserting ‘or a firearm part’ after the first occurrence of ‘firearm’.

This makes it clear that the conduct that constitutes the disposal element of the trafficking offence in subparagraph 360.2(1)(b)(i) includes disposal of firearm parts in addition to firearms.

Item 3 - Paragraphs 360.1(1)(a), (b) and (c)

Item 3 amends paragraphs 360.1(1)(a), (b) and (c) by inserting ‘or part’ after every occurrence of ‘firearm’.

This broadens the conduct that constitutes the disposal element of the trafficking offence in subparagraph 360.2(1)(b)(i) to include disposal of firearm parts in addition to firearms.

Item 4 - Subsection 360.1(2)

Item 4 amends subsection 360.1(2) by inserting ‘or a firearm part’ after the first occurrence of ‘firearm’.

This makes it clear that the conduct that constitutes the acquisition element of the trafficking offence in subparagraph 360.2(1)(b)(ii) includes acquisition of firearm parts in addition to firearms.

Item 5 - Paragraphs 360.1(2)(a), (b) and (c)

Item 5 amends paragraphs 360.1(2)(a), (b) and (c) by inserting ‘or part’ after every occurrence of ‘firearm’.

This broadens the conduct that constitutes the acquisition element of the trafficking offence in subparagraph 360.2(1)(b)(ii) to include acquisition of firearm parts in addition to firearms.

Item 6 - Section 360.2

Item 6 repeals the heading of section 360.2 ‘Cross-border offence of disposal or acquisition of a firearm’ and substitutes ‘Cross-border offence of disposal or acquisition of a firearm or firearm part’.

Section 360.2 is the cross-border offence of disposal or acquisition of a firearm for the purposes of Division 360.  The « amendment » to the title of the section reflects the extension of Division 360 to firearm parts as well as firearms.

Item 7 - Subparagraphs 360.2(1)(b)(i) and (ii)

Item 7 amends subparagraphs 360.2(1)(b)(i) and (ii) by inserting ‘or a firearm part’ after ‘a firearm’.

This « amendment » broadens the conduct that constitutes the primary element of the offence to include disposal or acquisition of firearm parts in addition to firearms.

Item 8 - Subsection 360.2(3)

Item 8 inserts into subsection 360.2(3) a definition for firearm part , to mean either of the following within the meaning of the firearm law concerned: (a) a firearm part; (b) a part of, or for, a firearm or weapon.

This « amendment » defines firearm part for the purposes of Division 360, and provides that the meaning is the same as within the various definitions of ‘firearm part’ in State and Territory firearm laws. For conduct to constitute an offence under Division 360, it must be an offence against State and Territory firearm laws. It is necessary therefore to define firearm part with reference to State and Territory laws to ensure that conduct in relation to a firearm part within the meaning of State and Territory laws is also captured by Division 360.

Item 9 - Section 360.3

Item 9 repeals the heading of section 360.3 ‘Taking or sending a firearm across borders’ and substitutes ‘Taking or sending a firearm or firearm parts across borders’.

Section 360.3 currently defines the conduct that constitutes taking or sending a firearm across borders for the purposes of the offence in Section 360.3. The « amendment » to the title of the section reflects the extension of Division 360 to firearm parts as well as firearms.

Items 10, 11 and 12 - Paragraphs 360.3(1)(a) and (b) and subparagraph 360.3(1)(c)(i) and (ii)

Items 10, 11 and 12 amend paragraphs 360.3(1)(a) and (b) and subparagraphs 360.3(1)(c)(i) and (ii) by inserting ‘or a firearm part’ after ‘firearm’ on each occurrence.

These amendments broaden the conduct that constitutes part of the offence of taking or sending firearms across borders to include firearm parts in addition to firearms.

Item 13 - Subsection 360.3(2)

Item 13 inserts into subsection 360.3(2) a definition for firearm part , to mean either of the following within the meaning of the firearm law concerned: (a) a firearm part; (b) a part of, or for, a firearm or weapon.

This « amendment » defines firearm part for the purposes of Division 360, and provides that the meaning is the same as within the various definitions of ‘firearm part’ in State and Territory firearm laws. For conduct to constitute an offence under Division 360, it must be an offence against State and Territory firearm laws. It is necessary therefore to define firearm part with reference to State and Territory laws to ensure that conduct in relation to a firearm part within the meaning of State and Territory laws is also captured by Division 360.

Item 14 - After section 360.3

Item 14 inserts a new subsection (360.3A(1)) after section 360.3 to introduce mandatory minimum penalties for offences under Division 360. This will for the first time introduce a minimum sentence for firearms trafficking offences under the Code.

The inclusion of a mandatory minimum penalty of five years imprisonment for trafficking offences is aimed at the legitimate objective of ensuring offenders receive sentences proportionate to the seriousness of their offending. They are also intended to target firearms trafficking to address the clear and serious social and systemic harms associated with this trade.

A mandatory minimum penalty will not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed (subsection 360.3A(2)). This preserves judicial discretion when sentencing to take into account the particular circumstances of minors.  This is consistent with Division 309 of the Code, which reduces the culpability of children who commit drug trafficking offences.

The « amendment » does not prescribe a minimum non-parole period. This will preserve a court’s discretion in sentencing, and will help ensure that custodial sentences imposed by courts are able to take into account the particular circumstances of the offence and the offender.

Item 15 - Section 360.4

Item 15 inserts ‘(1)’ prior to the existing text ‘This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory’.

This « amendment » will ensure that the existing text is appropriately numbered, given that item 16 inserts subsequent subsections (being 360.4(2), (3) and (4)).

Item 16 - At the « end » of section 360.4

Item 16 amends section 360.4 to ensure concurrent operation of Division 360 with State and Territory laws and to address double jeopardy.

New subsection 360.4(2) provides that, without limiting subsection 360.4(1), Division 360 is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:

a)       an act or omission that is an offence against a provision of Division 360, or

b)       a similar act or omission

an offence against the law of the State or Territory.

New subsection 360.4(3) provides that subsection 360.4(2) will apply even if the law of the State or Territory does any one or more of the following:

a)       provides for a penalty for the offence that differs from the penalty provided for in Division 360

b)       provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under Division 360

c)       provides for a defence in relation to the offence that differs from the defences applicable to the offence under Division 360.

New subsection 360.4(4) provides that a person punished for an offence against a law of a State or Territory referred to in subsection (2) in respect of particular conduct cannot be punished for an offence against this Division in respect of that conduct. The provision is based on section 4C(2) of the Crimes Act 1914 .

The purpose of these subsections is to ensure that State and Territory laws that create overlapping offences or that regulate activities in relation to the trafficking of firearms or firearm parts will continue to operate alongside Division 360.

In addition, subsection 360.4(4) will prevent a person convicted or acquitted of a trafficking offence under State or Territory laws being convicted of an offence in Division 360 based on the same or substantially similar conduct.

This approach of allowing Commonwealth, State and Territory offences to operate concurrently is consistent with Parliament’s approach to other serious crimes, including fraud, serious harm, money laundering and sexual servitude offences.

Item 17 - Application of amendments

Item 17 sets out the application of the amendments listed in items 1 to 16. It states that ‘The amendments made by items 1-16 apply in relation to conduct engaged in on or after the commencement of those items’.

This means a person cannot be charged with any new offence under the Code if the conduct constituting that offence occurred prior to the « Bill » receiving Royal Assent.

Item 18 - At the « end » of Part 9.4

Item 18 inserts a new division at the « end » of Part 9.4 of the Code, being ‘Division 361 - International firearms trafficking’. The Division contains offences for the trafficking of firearms and firearm parts into and out of Australia.

Section 361.1

New section 361.1 defines the following terms for the purposes of Division 361: export, firearm, firearm part, import and traffic .

The definitions of import and export pick up the ordinary legal meaning of those terms, and clarify that the import or export of the thing is into or out of Australia. The definition of import additionally extends the ordinary meaning of import to cover dealings in connection with importation.

The definitions of firearm and firearm part are the same as in the « Customs » (Prohibited Imports) Regulations 1956 . It is appropriate that the definitions in the Code are the same as those in the « Customs » (Prohibited Imports) Regulations 1956 as the Regulations control the importation of firearms and firearm-related articles into Australia.

The definition of traffic is modelled on Section 72.36 of the Code, which applies to the trafficking of explosives and lethal devices. The definition encompasses the range of criminal conduct associated with illegal firearm trafficking, including transferring, selling, making offers to sell, and inviting the making of offers to buy the thing. The inclusion of acts such as transferring ensures that the definition encompasses the full range of actions that can constitute trafficking rather than those associated with traditional sale alone.

Sections 361.2 and 361.3

New section 361.2 introduces an offence for trafficking prohibited firearms or firearm parts. A person commits an offence under this section if they import a thing that is a firearm or firearm part with the intent to traffic and either the importation of the article was prohibited absolutely under the « Customs » Act 1901, or was prohibited under that Act unless certain requirements had been met and the person failed to meet any of those requirements.

New section 361.3 introduces offences for exporting and entering for export prohibited firearms or firearm parts. A person commits an offence under this section if they export or enter for export a thing that is a firearm or firearm part with the intent to traffic and either the exportation or entering for exportation of the article was prohibited absolutely under the « Customs » Act 1901, or was prohibited under that Act unless certain requirements had been met and the person failed to meet any of those requirements.

The inclusion of the intent to traffic ensures that the conduct covered by these offences is more serious and goes beyond the general importation and exportation offences contained in section 233BAB of the Act.

Example: Importation trafficking offence

John has a business importing engine parts into Australia. In one consignment of engine parts, the Australian « Customs » and Border Protection Service finds several concealed firearm barrels. Further investigations reveal that John had made arrangements to sell these firearm barrels to members of an outlaw motorcycle gang to which he has links.

Example: General importation without permission offence

Brett is an avid firearms collector and has imported firearms legally on a number of occasions.  On one occasion, he was told by the Attorney-General’s Department that he would not be able to receive permission to import a deactivated World War II rifle for his collection.  In spite of this, Brett imported the firearm, which was marked correctly, in the hope that once the firearm was in Australia he would be able to receive the necessary permissions under Schedule 6 of the « Customs » (Prohibited Imports) Regulations 1958 .

Example: Exportation trafficking offence

James is a small business owner who travels frequently between Australia and South-East Asia. His company sources and supplies machine parts for various industries such as farming, building and mining. As a favour for one of James's biggest clients, James agreed to disguise a dismantled handgun and silencer amongst his sample machinery parts on his next trip out of Australia. James did not obtain an export permit for the handgun and silencer in accordance with Regulation 13E of the « Customs » (Prohibited Exports) Regulations 1956 prior to his departure.

Example: Entering for export trafficking offence

Susie works for an Australian company that specialises in the manufacture of customised parts and accessories for firearms and other weaponry. She has put together a box of sample firearm parts and accessories as well as a catalogue of their most recent inventory of stock that she wishes to have distributed to interested attendees at an upcoming international trade show. Susie enters the goods for export by making an export declaration as per section 113AA of the « Customs » Act 1901 . However, prior to export, the Australian « Customs » and Border Protection Service discovers that the firearm parts and accessories that were entered for export do not have the requisite export permit required by Regulation 13E of the « Customs » (Prohibited Exports) Regulations 1958 . As a result, Susie’s company is able to be charged for the appropriate international trafficking offence in Division 361 of the Criminal Code Act 1995.

The trafficking offences will be punishable by a maximum penalty of 10 years imprisonment or a fine of 2,500 penalty units, or both. This is consistent with the penalty for the cross-border trafficking offences under Division 360 of the Code.  A mandatory minimum of five years imprisonment will also apply (see section 361.5 below).

Subsections 361.2(2) and 361.2(4) provide that absolute liability applies to paragraphs 361.2(1)(d) and 361.2(3)(d), being that the importation of the firearm or firearm part was prohibited under the « Customs » Act 1901 absolutely, or was prohibited under the Act unless certain requirements had been met.

Subsections 361.3(2) and 361.3(5) provide that absolute liability applies to paragraphs 361.3(1)(d), 361.3(3)(d) and 361.3(4)(d), being that the exportation or entering for exportation of the firearm or firearm part was prohibited under the « Customs » Act 1901 absolutely, or was prohibited under the Act unless certain requirements had been met.

Absolute liability is set out in section 6.2 of the Code.  The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and that the defence of mistake of fact under section 9.2 of the Code is not available.   Accordingly, the prosecution will not be required to prove that the defendant knew or was reckless to the fact that the importation or exportation of the firearm or firearm part was prohibited unless the requirements for import or export had not been met.

Absolute liability is appropriate and required for the element of the offence that the importation or exportation of the firearm or firearm part was prohibited or prohibited unless the requirements for import or export had been met. This is a precondition to the act of import or export, and the state of mind of the defendant with respect to that condition is not relevant.

If absolute liability were not imposed, a defendant could attempt to avoid criminal liability for the offence by claiming they were unaware that there were import and export requirements which had to be met. In such cases, the prosecution would then have to prove beyond reasonable doubt that a person knew or was reckless as to whether importing or exporting the article was prohibited or needed to meet certain requirements in order to be lawful. Applying absolute liability to these elements places a reasonable burden on the importer to make inquiries relating to the importation and exportation of firearms and firearm parts. It is reasonable to expect that legitimate importers would make these inquiries as a matter of course.

Subsection 361.2(5) provides that strict liability applies to paragraph 361.2(3)(e), being that the person failed to meet any of the requirements.

Subsection 361.3(6) provides that strict liability applies to paragraphs 361.3(3)(e) and 361.3(4)(e), being that the person failed to meet any of the requirements.

Strict liability is set out in section 6.1 of the Code.  The effect of applying strict liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact is available.  There will still be a requirement to prove the physical element that import or export requirements had not been met at the time of import or export.

Example: Application of strict liability

Ian has been charged with trafficking ten trigger mechanisms into Australia, the importation of which is prohibited under the « Customs » Act 1901 unless certain requirements are met.   As strict liability applies to the element that the requirements had not been met, it is not necessary to prove Iain’s mental state regarding whether the requirements had been met.

The application of strict, rather than absolute, liability to this element of the offence will make available the general defence of mistake of fact. 

The defence of mistake of fact is set out in section 9.2 of the Criminal Code.  The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

a)       at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

b)       had those facts existed, the conduct would not have constituted an offence.

Therefore, if a person mistakenly believed that he or she had met the requirements for import or export of a firearm or firearm part, the defence of mistake of fact would be available.

Example: Defence of mistake of fact

Stan has attempted to import two semi-automatic centrefire rifles into the country. Prior to importation Stan applied for and was issued with a permit to acquire the firearms by his state firearms registry, which had told him that this was the only requirement he needed to meet to import the rifles. Upon importation, the rifles were seized by the Australia « Customs » and Border Protection Service, as Stan did not have a permit issued by the Attorney-General (or their delegate), which is a requirement under the « Customs » Act 1901 . Because of Stan’s links to outlaw motorcycle gangs, he is charged with the international trafficking offence under Division 361 of the Criminal Code Act 1995 . The mistake of fact defence is open to Stan, as he legitimately believed he had met all the requirements he needed to meet to legally import the articles based on the advice given to him by his firearms registry.



 

Subsection 361.4

New section 361.4 sets out a defence to an offence against Division 361 if, at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory, and, had the conduct been so justified or excused, the conduct would not have constituted the offence.

This defence is modelled on the defences applying to comparable serious drug importation and exportation offences in Part 9.1 of the Code. They are aimed at ensuring that administrative errors or misunderstandings occurring in the course of bona fide legitimate business do not result in convictions for offences that are intended only to target those involved in illicit firearms (and firearm parts) trafficking. 

Under section 13.3(3) of the Code, the defendant bears an evidential burden for this defence.  This means that the defendant has the burden of adducing or pointing to evidence that suggests a reasonable possibility that they were under a mistaken but reasonable belief that the conduct was justified or excused under a law of the Commonwealth, State or Territory.  If the defendant meets this burden, the prosecution bears a legal burden of disproving the matter in accordance with subsection 13.2(2) of the Code.  If the prosecution is not able to disprove the defence beyond a reasonable doubt, the defendant is not criminally responsible for an offence against Division 361.

It will generally be much easier for a defendant, rather than the prosecution, to produce evidence showing that the circumstances to which the defence applies do in fact exist because such evidence will be peculiarly within the knowledge of the defendant.  The defendant will more easily be able to lead evidence of the belief that he or she held that the conduct was justified or excused by a law and point to evidence of why it was reasonable for him or her to hold that belief.

This defence is designed to protect those who reasonably believe that their conduct of importing or exporting prohibited firearms or firearm parts is permitted but have not met relevant import or export requirements due to administrative or technical problems. An example of this is where a person is told by a relevant authority that they do not require export permission for a non- « military » rifle, whereas in fact export permission is required to be provided under the « Customs » Act 1901 .  The purpose of this defence is to ensure that administrative errors or misunderstandings occurring in the course of legitimate business do not result in convictions for offences that are intended only to target those involved in the illegal firearms trade.

Subsection 361.5

New subsection 361.5 applies a mandatory minimum sentence of five years imprisonment if a person is convicted of an offence against Division 361.This will for the first time introduce a minimum sentence for firearms trafficking offences under the Code.

The inclusion of a mandatory minimum penalty of five years imprisonment for trafficking offences is aimed at the legitimate objective of ensuring offenders receive sentences proportionate to the seriousness of their offending. They are also intended to target firearms trafficking to address the clear and serious social and systemic harms associated with this trade.

The penalty will not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed. This preserves judicial discretion when sentencing to take into account the particular circumstances of minors.  This is consistent with Division 309 of the Code, which reduces the culpability of children who commit drug trafficking offences.

The « amendment » does not prescribe a minimum non-parole period. This will preserve a court’s discretion in sentencing, and will help ensure that custodial sentences imposed by courts are able to take into account the particular circumstances of the offence and the offender.

Section 361.6

New section 361.6 provides that a person punished for an offence against Division 361 in respect of particular conduct cannot be punished for an offence against section 233BAB of the Act in respect of that conduct. The provision is based on section 4C(2) of the Crimes Act 1914 .

The purpose of this section is to ensure that Commonwealth laws - in this case the Code and the Act - that create overlapping offences or that regulate activities in relation to the trafficking of firearms or firearm parts continue to operate alongside one another.

« Customs » Act 1901

Items 19, 20, 21 and 22

Items 19 - 22 amend sections 183UA and 210 of the Act to grant officers under Division 1 in Part XII of the Act powers to respond to offences against Division 361 of the Code (that is, the new international trafficking offences).

Section 183UA defines terms for the purposes of Division 1 in Part XII of the Act - Powers of Officers. Item 19 amends subsection 183UA(1) (paragraph (c) of the definition of offence ) by inserting ‘or 361’ after ‘Division 307’. This broadens the definition of ‘offence’ in Division 1 of Part XII of the Act to include offences against Division 361 of the Code.

Item 20 amends subsection 183UA(2A) by inserting ‘or 361’ after ‘Division 307’. This « amendment » means that an offence against section 6 of the Crimes Act 1914 that relates to an offence against Division 361 of the Code will be taken to be an offence against that Division. Section 6 of the Crimes Act 1914 states that any person who receives or assists another person, who is, to his or her knowledge, guilty of any offence against a law of the Commonwealth, in order to enable him or her to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.

Item 21 amends paragraph 183UA(3)(b) by inserting ‘or 361’ after ‘Division 307’. This « amendment » means that an offence against section 141.1, 142.1, 142.2 or 149.1 of the Code that relates to Division 361 of the Code will be taken to be an offence against that Division. These sections of the Code detail offences relating to public officials, specifically those involving bribery, corruption, obstruction and abuse of public office.

Subsection 210(1)(a) grants powers to officers of « Customs » and police (State, Territory and Commonwealth - see subsection 4(2) of the Act) to arrest a person without a warrant if the officer believes on reasonable grounds that that person has committed or is committing a particular offence. Item 22 amends subparagraph 210(1)(a)(iv) by inserting ‘or 361’ after ‘Division 307’. This « amendment » extends the powers of officers of « Customs » and police to arrest a person without a warrant if they believe on reasonable grounds that that person has committed or is committing an offence against Division 361 of the Code.

These amendments are consistent with existing arrangements for similar import and export offences. The Australian Federal Police (AFP) and the Australian « Customs » and Border Protection Service (ACBPS) already share responsibility for enforcing existing firearms import and export offences under the Act, and the amendments made in items 19 - 22 will allow a similar shared approach to be taken in relation to enforcing the new offences under the Code.

The amendments will assist both agencies in managing the tiered firearms trafficking offences regime created by the « Bill » , which will result in a similar approach to that which is taken for other import and export offences in the Code such as serious drug (Division 307) and unmarked plastic explosives (section 72.13) trafficking.

Item 23 - Subsection 233BAB(7)

Currently, subsection 233BAB(7) of the Act states that a person convicted or acquitted of an offence against subsection (5) or (6) in respect of a particular conduct is not liable, in respect of that conduct, to proceedings under section 233 of the Act. Section 233 applies to the smuggling and unlawful importation and exportation of goods and prohibited imports and exports.

Item 23 repeals subsection 233BAB(7) and substitutes a replacement that states that a person punished for an offence against subsection (5) or (6) in respect of particular conduct cannot be punished, in respect of that conduct, for an offence against section 233 of the Act or Division 361 of the Code.

The purpose of this subsection is to ensure that Commonwealth laws - in this case the Code and the Act - that create overlapping offences or that regulate activities in relation to the import and export of firearms or firearm parts will continue to operate alongside one another.

 



 

Schedule 3—International transfer of prisoners

GENERAL OUTLINE  

Schedule 3 contains amendments to the International Transfer of Prisoners Act 1997 (ITP Act).  Part 1 contains amendments that will clarify that prisoners serving suspended sentences may be transferred under the ITP scheme.  These amendments will make clear to prisoners serving such sentences that they fall under consideration of the ITP scheme.

Part 2 will introduce the concept of ‘close family member’ into the ITP Act.  This new definition will be used in two ways.  Firstly, it can be used when establishing a prisoner’s community ties with a particular state, territory or transfer country.  Secondly, it will extend the range of people who can consent to the transfer of a prisoner where they are a child or are incapable of consenting for him or herself. 

Part 3 will make a number of amendments to:

·         enable unviable applications for transfer to be closed (for example where the relevant consents have not been obtained)

·         clarify that the definition of ‘joint prisoner’ includes a prisoner who was convicted in more than one Australian state or territory

·          insert a one year time limit on reapplications by prisoners who have had their earlier applications denied, or who withdrew their earlier application

·          simplify the process for notifying a state and/or territory and transfer country of an application for transfer, and seeking the transfer country’s proposed terms and consent to the transfer

·          clarify that prisoners wishing to apply for transfer to Australia may do so either via the sentencing country or directly to Australia

·          clarify the date on which an assessment of dual criminality will be undertaken, and

·          allow for application forms to be approved by the Attorney-General (rather than prescribing application forms in the Regulations).

Part 4 contains the application and transitional provisions for the amendments introduced in this Schedule.

 

 

 

 

 

 

 

 

 

International Transfer of Prisoners Act 1997

PART 1 — Suspended sentences

Part 1 will seek to ensure that where prisoners have a suspended sentence they are still considered to be serving a sentence of imprisonment for the purposes of the ITP Act and may be transferred under the ITP scheme. 

Item 1 — Subsection 4(1)

Item 1 will insert a new definition at subsection 4(1) of a non-Tribunal offence , which will be defined as an offence which does not come within the existing definition of a Tribunal offence.  The distinction between Tribunal offences and non-Tribunal offences is because new provisions relating to suspended sentences to be inserted by this Part will only apply to offences imposed by a country’s criminal framework, rather than by a Tribunal .  Tribunal offence is already defined at subsection 4(1) as:

(a) an offence in relation to which the Former Yugoslavia Tribunal has the power to prosecute persons under article 2, 3, 4 or 5 of the Statute of the Tribunal; or

(b) an offence in relation to which the Rwanda Tribunal has the power to prosecute persons under article 2, 3 or 4 of the Statute of the Tribunal; or

(c) an offence in relation to which the International Residual Mechanism for Criminal Tribunals has the power to prosecute persons under article 1 of the Statute of the Tribunal.

The effect of this provision will be that any offence which does not fall into the definition at subsection 4(1) of a Tribunal offence will, for the purposes of the ITP Act, be considered a non-Tribunal offence.

Item 2 — Subsection 4(1) (definition of sentence of imprisonment )

Currently subsection 4(1) defines a sentence of imprisonment as ‘any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a determinate or indeterminate period in the exercise of its criminal jurisdiction and includes any direction or order given or made by the court or tribunal with respect to the commencement of the punishment or measure’.   The legislation is ambiguous as to whether suspended sentences are captured by this definition and, as such, whether there is legislative authority to transfer a person with a suspended sentence. 

Item 2 will repeal the current definition of sentence of imprisonment and replace it with wording that captures suspended sentences.  The new definition will provide that sentence of imprisonment means any punishment or measure involving either a deprivation of liberty or a potential deprivation of liberty (if the punishment or measure relates to a conviction for a non-Tribunal offence) ordered by a court or tribunal.  Suspended sentences are to be covered by the words ‘potential deprivation of liberty’.  The sentence imposed need not be for a specified period and includes any direction or order relating to the commencement of the punishment or measure, as is the case for the current definition.  The note to this definition explicitly provides that the reference at paragraph 4(1)(b) will apply to suspended sentences. 

This « amendment » will ensure that suspended sentences are captured by the definition of sentence of imprisonment , ensuring there will be legislative authority to transfer a person with a suspended sentence.  

Item 3 — Subsection 4(1)

Item 2 will insert a new definition of sentence of imprisonment to ensure that it covers suspended sentences.   In line with this « amendment » , item 3 will insert a definition of serving to have the meaning in subsection 4B(1) and a definition of suspended part of a sentence of imprisonment, which has the meaning given by subsection 4B(2). Subsections 4B(1) and 4B(2) will be inserted by item 4.

Item 4 — After section 4A

In line with amendments to be made by this Part to ensure the ITP Act applies to persons serving suspended sentences, item 4 will insert new section 4B which will provide further detail on suspended sentences of imprisonment. 

Subsection 4B(1) will provide that a prisoner serving a sentence of imprisonment will include prisoners subject to a period of potential deprivation of liberty.  Therefore, even where a person is subject to a suspended sentence of imprisonment and not in prison (but subject to the potential deprivation of their liberty), they will be considered for the purposes of the ITP Act to be a prisoner serving a sentence of imprisonment.    

Subsection 4B(2) will provide that the suspended part of a sentence of imprisonment will be determined as the time involving a potential deprivation of liberty where the prisoner is not in prison and where the prisoner is not on parole. This includes any punishment or measure which has been suspended on conditions. 

The effect of this item will be to ensure that even where prisoners are serving the suspended part of their sentence they will still be considered, for the purposes of the ITP Act, to be serving a sentence of imprisonment.

Item 5 — Paragraph 14(1)(c)

Section 14 currently provides the conditions that must be met for a transfer of a prisoner from Australia. Under paragraph 14(1)(c) there must be at least six months remaining of that prisoner’s sentence of imprisonment (except in circumstances of a mentally impaired prisoner).

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, Item 5 will insert new wording after the word ‘parole’ in paragraph 14(1)(c). This wording will extend the current provision to include persons serving suspended sentences. 

The effect of this « amendment » will be that in determining whether there are at least six months still to serve of a prisoner’s sentence for the purposes of paragraph 14(1)(c), regard is to be had to any suspended components of the sentence.   For example, if a person has three months remaining of his or her sentence to serve in prison and then a further two years of a suspended sentence after that, then he or she will be considered for the purposes of the ITP Act to have at least six months of his or her sentence remaining to be served. 

Item 6 — Paragraph 15(1)(c)

Section 15 currently provides the transfer conditions that must be met for a transfer of a prisoner to Australia. Under paragraph 15(1)(c) there must be at least six months remaining of that prisoner’s sentence of imprisonment (other than a mentally impaired or Tribunal prisoner).

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, Item 6 will insert new wording after the word ‘parole’ in paragraph 15(1)(c). This wording will extend the current provision to include persons serving suspended sentences. 

The effect of this « amendment » is that in determining whether there are at least six months still to serve of a prisoner’s sentence for the purposes of paragraph 15(1)(c), regard will be had to any suspended components of the sentence. For example, if a person has three months remaining of his or her sentence to serve in prison and then a further two years of a suspended sentence after that, then he or she will be considered for the purposes of the ITP Act to have at least six months of his or her sentence remaining to be served. 

Item 7 — Paragraph 15(4)(b)

Section 15 currently provides transfer conditions for a transfer of a prisoner to Australia. Under paragraph 15(4)(b) there must be at least six months remaining of a Tribunal prisoner’s sentence of imprisonment.

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, Item 7 will insert new wording after the word ‘parole’ in paragraph 15(4)(b). This wording will extend the current provision to include persons serving suspended sentences. 

The effect of this « amendment » is that in determining whether there are at least six months still to serve of a Tribunal prisoner’s sentence for the purposes of paragraph 15(4)(b), regard will be had to any suspended components of the sentence. For example, if a person has three months remaining of his or her sentence to serve in prison and then a further two years of a suspended sentence after that, then he or she will be considered for the purposes of the ITP Act to have at least six months of his or her sentence remaining to be served. 

Item 8 — Subsection 22(3)

Subsection 22(3) currently provides the form that warrants for transfer from Australia should take where the prisoner has not been released on parole. 

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, item 8 will insert new wording after the word ‘parole’ in subsection 22(3) to make clear that the requirements in subsection 22(3) for a warrant for transfer from Australia will not apply in respect of prisoners who are serving the suspended part of their sentence. 

The form which warrants are to take when they relate to prisoners serving a suspended sentence will be set out in new subsection 22(4A) to be inserted by item 9.

Item 9 — After subsection 22(4)

Section 22 currently provides the form that warrants for transfer from Australia should take.  In line with amendments that ensure the ITP Act will apply to persons serving suspended sentences,item 9 will insert new subsection 22(4A). Subsection 22(4A) will ensure that where a prisoner is serving the suspended part of their sentence of imprisonment at the time of transfer, the warrant is to specify:

·         any conditions relating to the suspended sentence

·         procedures for the transfer of the prisoner that have been agreed upon with the transfer country, and

·         any necessary authorisations and directions required by the transfer country. 

This will ensure that relevant conditions for their transfer can be stipulated on the warrant.

Item 10 — After paragraph 27(5)(b)

Subsection 27(5) provides that where the Minister of the state or territory in which a prisoner transferring to Australia is to serve their sentence of imprisonment consents to the transfer, the Minister is to advise the Attorney-General of certain information. 

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, Item 10 will insert new paragraph 27(5)(ba) which will require the relevant Minister to inform the Attorney-General of any recommended terms or conditions on which the prisoner is to complete serving the suspended part of the sentence.

This « amendment » will enable the relevant Minister to advise the Attorney-General of any terms or conditions they consider necessary to the prisoner completing their sentence in that state or territory.   

Item 11 — Subsection 30(3)

Subsection 30(3) currently sets out the requirements of a warrant for the transfer of a prisoner to Australia. This provision is currently confined to prisoners who have not been released on parole. In line with amendments related to suspended sentences, item 11 will clarify that subsection 30(3) will also not apply to prisoners serving the suspended part of their sentence. 

The requirements for warrants relating to prisoners serving the suspended part of their sentence will be set out in new subsection 30(4) as inserted by item 12.

Item 12 — Subsection 30(4)

Subsection 30(4) currently sets out the requirements of a warrant for the transfer of a prisoner to Australia who has been released on parole. This includes any procedures for transfer that have been agreed with the transfer country and any necessary authorisations and directions. 

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, item 12 will extend the subsection to cover prisoners serving the suspended part of the sentence of imprisonment. The amended provision will require the warrant to specify any procedures for the transfer of the prisoner to Australia that have been agreed upon with the transfer country and to give any necessary authorisations and directions. This will ensure the warrant can specify any necessary conditions to give effect to the transfer in relation to transfer of prisoners serving a suspended sentence.  

Item 13 — Subsection 46(3)

Section 46 currently stipulates that a prisoner who is transferred to Australia is taken, for the purposes of the ITP Act, to be a federal prisoner. The section provides a series of circumstances in which the prisoner will be treated, or will gain an entitlement, as if he or she were a federal prisoner including in relation to detention, hospitalisation and remission or reduction of the sentence of imprisonment. 

In particular, subsection 46(3) provides that a prisoner or Tribunal prisoner who is transferred to Australia under the ITP Act may, while serving a sentence of imprisonment imposed by a transfer country or Tribunal that is enforced under the ITP Act, be detained in a prison or hospital or other place in a state or territory. In line with amendments that ensure the ITP Act applies to persons serving suspended sentence, item 13 will repeal the current subsection and insert new subsections 46(3), (3A) and (3B). 

Amended subsection 46(3) will provide that a prisoner who is transferred to Australia under the ITP Act while serving a sentence of imprisonment (other than the suspended part of the sentence) that is imposed by a transfer country and enforced under the ITP Act, may be detained in a prison or hospital or other place in a state or territory.   

Amended subsection 46(3A) will provide that a prisoner who is transferred to Australia under the ITP Act while serving the suspended part of a sentence of imprisonment that is imposed by a transfer country and enforced under the ITP Act may have their stay in a place in a state or territory supervised in accordance with terms agreed under the ITP Act. 

Amended subsection 46(3B) will provide that a Tribunal prisoner who is transferred to Australia under the ITP Act while serving a sentence of imprisonment that is imposed by a Tribunal and enforced under the ITP Act may be detained in a prison or hospital or other place in a state or territory.

The effect of subsections 46(3), 46(3A) and 46(3B) is to clearly set out how certain prisoners or Tribunal prisoners are able to be detained or otherwise dealt with, depending on the circumstances of their transfer.  

Item 14 — After paragraph 46(5)(b)

Subsection 46(5) currently sets out the Australian law, practice and procedure applicable to a prisoner or Tribunal prisoner who is transferred to Australia under the ITP Act. In line with amendments that ensure the ITP Act applies to persons serving a suspended sentence, item 14 will insert a new paragraph after paragraph 46(5)(b) to clarify that a prisoner or Tribunal prisoner who is transferred to Australia under the ITP Act will be subject to the Australian law, practice and procedure relating to serving the suspended part of a sentence of imprisonment. 

The effect of this provision will be that prisoners serving a suspended sentence will be subject to the same domestic laws, practices and procedures as are applicable to federal offenders serving a suspended sentence. 

PART 2 — Close family members

Under the ITP Act, a prisoner’s relationship with certain relatives serves two purposes. Firstly, it can establish that prisoner’s community ties with a particular state, territory or transfer country.  Secondly, the ITP Act currently permits the prisoner’s representative (that is, the prisoner’s parent, guardian or legal representative) to consent to the transfer of that prisoner where the prisoner is a child or is incapable of consenting to the transfer. 

Part 2 introduces the term ‘close family member’. This will be used to broaden the definition of ‘prisoner’s representative’, which currently does not take into account certain family members who a prisoner may prefer to have represent them, such as, in the absence of a parent, a grandparent. This new term will also be used in establishing community ties with a particular state, territory or transfer country.  

Item 15 - Subsection 4(1)

Subsection 4(1) contains a range of definitions relevant for the ITP Act. item 15 will insert a range of new definitions associated with close family members . In line with amendments to extend the definition of a prisoner’s representative to include that prisoner’s close family members, item 15 will insert a new definition of child as defined by the Family Law Act 1975 .  This new definition is relationship-based rather than age-based and will align the definition of child in the ITP Act with the definition across other Commonwealth legislation. 

While item 20 will repeal the current age-based definition of child and item 15 will only introduce a relationship based definition of child, the age-based understanding of child will remain in the ITP Act. This is due to the definition of adult at subsection 6(7) of the ITP Act.  This will define adult as persons above the age of 18 years of age or, in the case of a transfer or Tribunal country, a person of or above the age at which a person is considered for legal purposes to be an adult. Therefore, a child for the purposes of the ITP Act will be determined by reference to both their relationship with a parent, and by the fact that they are not an adult. 

Item 15 will also insert into subsection 4(1) a reference to close family member as defined at section 4AA, which is inserted by item 18 . This new term will be used to establish whether a prisoner has community ties with a particular state, territory or foreign country and expand on who can consent to a prisoner’s transfer on their behalf.

Item 15 will also insert a definition of de facto partner which will have the meaning given by the Acts Interpretation Act 1901 . The Acts Interpretation Act defines a de facto relationship as one in which two people are not legally married to each other, are not related by family and have a relationship as a couple living together on a genuine domestic basis. As de facto partners will come within the definition of a close family member in new section 4AA to be inserted by item 18, the definition of ‘prisoner’s representative’ will be expanded to encompass a broader range of familial relationships. This definition will ensure that the ITP Act aligns with the definition of de facto partner across other Commonwealth legislation.   

Item 15 will insert a definition of parent as a person who, by virtue of the definition of child at subsection 4(1), is the parent of that person. Subsection 4(1) defines child as a person coming within the definition of a child of a person for the purposes of the Family Law Act.

Items 16 and 17

A prisoner’s community ties with a particular state, territory or transfer country is one of the eligibility requirements that must be met for transfer under paragraph 13(1)(b) and subsection 12(b). In line with the new definition at item 15 of ‘close family member’ which will broaden the recognition of relationships considered under the ITP Act, items 16 and 17 will repeal existing paragraphs 4(4)(b), 4(4)(c), 4(5)(b) and 4(5)(c). Items 16 and 17 will replace these provisions so that community ties are established where the principal place of residence of a close family member of the prisoner is in a particular state, territory or transfer country.    

 

 

Paragraphs 4(4)(b) and (c)

Paragraph 4(4)(b) currently refers to a prisoner’s community ties with a transfer country as including where the prisoner has a parent, grandparent or child residing in the transfer country.  Paragraph 4(4)(c) currently refers to a prisoner’s community ties with a transfer country as including where the prisoner is married or has a de facto relationship with a person whose principal place of residence is in the transfer country. 

In line with the new definition of ‘close family member’ to be inserted by items 15 and 18, item 16 will repeal existing paragraphs 4(4)(b) and 4(4)(c) and will enable community ties to be established if the principal place of residence of a close family member of the prisoner is in the transfer country. The effect of this « amendment » will be that a prisoner will be able to establish community ties with a particular transfer country where a close family member (that is, a spouse, de facto partner, parent, step-parent, grandparent, child, stepchild, grandchild, brother, sister, stepbrother, stepsister, guardian or carer) has a principal place of residence in that transfer country.  

Paragraph 4(5)(b) and (c)

  Paragraph 4(5)(b) currently refers to a prisoner’s community ties with a state or territory as including where the prisoner has a parent, grandparent or child residing in the state or territory.  Paragraph 4(5)(c) currently refers to a prisoner’s community ties with a state or territory as including where the prisoner is married or has a de facto relationship with a person whose principal place of residence is in a state or territory. 

In line with the new definition at item 15 of close family member to be inserted by items 15 and 14, item 17 will repeal existing paragraphs 4(5)(b) and 4(5)(c) and will enable community ties to be established if the principal place of residence of a close family member of the prisoner is in that state or territory. The effect of this « amendment » will be that a prisoner will be able to establish community ties with a particular state or territory where a close family member (that is, a spouse, de facto partner, parent, step-parent, grandparent, child, stepchild, grandchild, brother, sister, stepbrother, stepsister, guardian or carer) has a principal place of residence in that state or territory.  

Item 18 — After section 4

The ITP Act currently permits a person to consent to the transfer of a prisoner who is a child or who is incapable of consenting to the transfer if they are the prisoner’s parent, guardian or legal representative. This person is described in the ITP Act as the ‘prisoner’s representative’. This definition does not take into account other family members who a prisoner may prefer to have represent them, such as, in the absence of a parent, a grandparent. The ITP Act further currently provides that the location of certain limited family members of a prisoner is relevant to establishing whether or not that prisoner has community ties with a particular state, territory or transfer country. 

Item 18 will insert a definition of close family member at section 4AA to include:

·         the person’s spouse or de facto partner

·         the parent, step-parent or grandparent of the person

·         a child, stepchild or grandchild of the person

·         a brother, sister, stepbrother or stepsister of the person, or

·         a guardian or carer of the person.

Definitions of de facto partner, parent and child will be inserted in subsection 4(1) by item 15.

The effect of item 18 will be to:

(a)      broaden the relationships that can be used to establish community ties (as referred to by the amendments to be made by items 16 and17) to also include, where relevant , the prisoner’s:

o    grandchild

o    stepparent, stepchild, stepbrother or stepsister

o    brother or sister, or

o    guardian or carer, and

 

(b)    broaden the people who can consent on behalf of a prisoner to a transfer (as referred to by the amendments to be made by item 19) to also include, where relevant, the prisoner’s:

o    spouse or de facto partner

o    step-parent or grandparent

o    child, stepchild or grandchild

o    brother, sister, stepbrother or stepsister, or

o    carer.

New paragraph 4AA(2)(a) will clarify that to establish whether a person comes within the relationships referred to at subsection 4AA(1), those relationships are to be traced through that child’s parent (as determined using the new definition of child). For example, to determine whether Kathleen is Tom’s grandparent, where Tom is the child of Angela, then this is to be done by tracing Tom’s relationship to Kathleen by reference to Tom’s relationship with Angela. 

New paragraph 4AA(2)(b) will provide that someone is the stepchild, stepbrother, stepsister or step-parent of another person even where two persons are each other’s de facto partner and not legally married. For example, where Angela is the parent of Tom, and is not married to Pete but is in a de facto relationship with him, Tom is considered, for the purposes of the Act, to be Pete’s stepchild. Paragraph 4AA(2)(b) does not limit subsection 4AA(1) given, if two people are already married, then the references to stepchild, stepbrother, stepsister or step-parent have their ordinary meaning as defined in the Macquarie dictionary.    

Item 19 — Subsection 6(2)

The current definition of prisoner’s representative at subsection 6(2) is restricted to the prisoner’s parent, guardian or legal representative. This definition does not take into account certain family members who a prisoner may prefer to have represent them, such as, in the absence of a parent, a grandparent. 

Item 19 will insert a new definition of prisoner’s representative and will provide that that person may consent to a prisoner’s transfer where the prisoner is not an adult or is incapable of consenting to the transfer.  New subsection 6(2) will extend the definition of prisoner’s representative to include a person who is the prisoner’s close family member (the definition of which will be inserted by item 18) or legal representative.  This « amendment » will expand the definition of prisoner’s representative to encompass the broad range of familial relationships, ensuring that if a prisoner is incapable of consenting to their own transfer, a broad range of persons will be able to do so on their behalf.

Item 20 — Subsection 6(7) (definition of child )

Subsection 6(7) currently defines a child by reference to their age (that is, a person below 18 years of age or, in the case of a transfer or Tribunal country, below the age at which a person is considered for legal purposes to be an adult).  Item 20 will repeal the definition of child in addition to the amendments to be introduced by item 15 which will insert a new definition of child linked to that person’s familial relationships pursuant to the Family Law Act 1975 .  While item 20 will repeal the current definition of child and item 15 will align the new definition with the Family Law Act, the age-based understanding of child will remain in the Act.  This is due to the fact that the definition of adult remains at subsection 6(7) of the ITP Act and this definition only applies to persons above the age of 18 years of age or, in the case of a transfer or Tribunal country, a person of or above the age at which a person is considered for legal purposes to be an adult.  Therefore, a child will take its ordinary meaning and be anyone who is not an adult.  

Part 3 — Other amendments

Item 21 — Subsection 4(1) (definition of joint prisoner )

Subsection 4(1) currently defines ‘joint prisoner’ as:

·         a prisoner who is both a state prisoner or territory prisoner (or both) and a federal prisoner, or

·         both a state prisoner and a territory prisoner. 

This definition does not make provision for a prisoner who has been convicted in more than one state or more than one territory.

Item 21 will repeal and substitute the definition of joint prisoner in section 4(1). The new definition will provide that a joint prisoner is a prisoner who is serving sentences of imprisonment imposed under the laws of two or more of the states and territories or at least one of the states and territories as well as under federal law. 

The « amendment » is designed to make clear that the definition applies to all possible combinations of imprisonment being a person who is a prisoner of:

·         two or more states

·         two or more territories

·         at least one state and at least one territory, or

·         the Commonwealth and one or more states and/or one or more territories.

Item 22 — After section 10

Item 22 will introduce new section 10A.  Subsection 10A(1) will ensure that the Attorney-General need not take steps to make a decision where a transfer cannot proceed due to an application not meeting at least one of the requirements under the ITP Act (i.e. an unviable application). Subsection 10A(2) will provide the Attorney-General with the discretion not to take steps to make a decision on a transfer application where that application has been received within twelve months of a previous application that did not meet one or more of the requirements of section 10 or was withdrawn. 

Subsection 10A(1) — Unviable applications

Current section 10 of the ITP Act outlines requirements that must be met for a prisoner to be transferred between Australia and a transfer country. There are a number of situations where a prisoner may not meet a requirement under section 10, for example, where a relevant party does not consent, the prisoner is subject to an extradition request or the prisoner is not an Australian citizen. Currently, where a prisoner does not meet all of the requirements in section 10 it is unclear whether the Attorney-General would still need to make a decision on the transfer request.   

Item 22 will insert new subsection 10A(1) to provide that, if any of the requirements in new paragraphs 10A(1)(c), (d) or (e) are not met, the Attorney-General need not take any steps for making a decision to consent, or refuse to consent, to the transfer of a prisoner. 

The requirements in paragraph 10A(1)(c) will be: 

·         the prisoner is eligible for transfer from or to Australia as the case requires (as required by subsection 10(a) of the ITP Act)

·         the prisoner or the prisoner’s representative has consented in writing to transfer on those terms (as required by subsection 10(c) of the ITP Act)

·         the relevant conditions for transfer of the prisoner are satisfied (as required by subsection 10(e) of the ITP Act and set out in sections 14 and 15)

·         the transfer of the prisoner is not likely to prevent the surrender of the prisoner to any extradition country known by the Attorney-General to have requested the extradition of the prisoner or to have expressed interest in extraditing the prisoner or that, in the opinion of the Attorney-General, is reasonably likely to request extradition (as required by subsection 10(f) of the ITP Act)

The Attorney-General will also need not make a decision where the transfer country has not consented to the transfer of the prisoner under the ITP Act (as required under paragraph 10(b)).  For example, if a prisoner wishes to transfer and the transfer country has not agreed to the terms of the prisoner transfer, the Attorney-General will not be required to make a decision.

Similarly, the Attorney-General will need not make a decision where the consent of the relevant state or territory Ministers to the transfer has not been given in writing (as required under section 10(d)). That is, if a prisoner wishes to transfer to an Australian state or territory and the consent of the relevant state or territory Minister has not been given, the Attorney-General will not be required to make a decision. Also, if a state or territory prisoner is transferring out of Australia, then there will be no need to make a decision if the relevant state or territory Ministers have not given consent.

The effect of this « amendment » will be that, in circumstances where all the requirements for transfer cannot be met, the transfer cannot proceed and a case will be closed. The prisoner will be informed of the outcome of his or her matter under section 52.

Subsection 10A(2) — Reapplications

Currently, the ITP Act does not restrict when a prisoner may reapply for transfer when their application has been refused or withdrawn. Subsequently, a number of prisoners have reapplied for transfer after their earlier application has been refused by the Attorney-General, the relevant state or territory minister, or the transfer country. Prisoners have also reapplied within months of them withdrawing an earlier application. This scenario is particularly problematic where, as is often the case, reapplications are received within months of prisoners being informed that their earlier application has been refused when there is no new information or change in circumstances to support a request for transfer. The processing of these reapplications is not resource or time efficient, especially when the outcome is not going to change due to the lack of new information or a change of circumstances. 

New paragraph 10A(2) will provide that the Attorney-General need not take any steps for making a decision in relation to a transfer to or from Australia where an application is received by the Attorney-General less than one year after the later of either:

·         the prisoner being informed that their earlier application did not meet the requirements in section 10, or

·         the day the prisoner informed the Attorney-General that the earlier application was being withdrawn. 

This new provision is intended to reduce the number of reapplications being processed where there is no likelihood that the original outcome will change. This provision is not intended to unreasonably restrict reapplications within the time limit where new circumstances or information manifests. For example, the provision will give the Attorney-General the flexibility to consider reapplications from a prisoner who has demonstrated new information or a change in circumstances that is relevant to their request to transfer. 

New paragraph 10A(3) will provide that Part 3 of the Act, which relates to transfers from Australia, and Part 4 of the Act, which relates to transfers to Australia of prisoners from transfer countries, have effect subject to section 10A. The effect of this « amendment » is that any request for transfer to or from Australia for a non-Tribunal prisoner will be subject to section 10A and its provisions regarding when the Attorney-General is not required to take any steps for making a decision under sections 16 or 24.

Item 23 — Paragraph 14(1)(b)

Currently under paragraph 14(1)(b) the Attorney-General has a discretion to refuse a request for transfer of a prisoner (other than a mentally impaired prisoner) from Australia where the acts or omissions constituting the offence on account of which the prisoner is serving the sentence in Australia would not have constituted an offence in the transfer country, had the conduct occurred in the transfer country (that is, where there is no dual criminality).  

At present the way that the provision is constructed could give rise to ambiguity as to when dual criminality is assessed. Item 23 will clarify that dual criminality is to be considered at the time the prisoner’s application for transfer is received by the Attorney-General. 

Item 24 — Paragraph 14(1)(c)

Paragraph 14(1)(c) currently sets out the transfer conditions for a transfer from Australia of a prisoner (other than a mentally impaired prisoner) where the sentence of that prisoner’s imprisonment is for a determinate period of time. This provision currently refers to an application under section 16 as a ‘request for transfer’. This does not align with the wording of section 16.  Item 24 is a minor and technical « amendment » which will replace the words ‘request for transfer’ with ‘application’ to be consistent with section 16.   

 

Item 25 — Paragraph 14(2)(b)

Currently under paragraph 14(2)(b) the Attorney-General has a discretion to refuse a request for transfer of a mentally impaired prisoner where the acts or omissions constituting the offence for which the prisoner is serving the sentence in Australia (or of which the prisoner was acquitted on the ground of mental impairment or unfitness for trial) would not have constituted an offence in the transfer country, had the conduct occurred in the transfer country (that is, where there is no dual criminality).  

At present the way that the provision is constructed could give rise to ambiguity as to when dual criminality is assessed. Item 25 will clarify that dual criminality is to be considered at the time the prisoner’s application for transfer is received by the Attorney-General. 

Item 26 — Paragraph 14(2)(c)

Paragraph 14(2)(c) currently sets out the transfer conditions for a transfer from Australia of a mentally impaired prisoner where the sentence of that prisoner’s imprisonment is for a determinate period of time. This provision refers to an application under section 16 as a ‘request for transfer’. This does not align with the wording of section 16. Item 26 is a minor and technical « amendment » which will replace the words ‘request for transfer’ with ‘application’ to be consistent with section 16.   

Item 27 — Paragraph 15(1)(b)

Currently under paragraph 15(1)(b) the Attorney-General has a discretion to refuse a request for transfer of a prisoner (other than a mentally impaired or Tribunal prisoner) to Australia where the acts or omissions constituting the offence on account of which the prisoner is serving the sentence in the transfer country would not have constituted an offence in Australia, had the conduct occurred in Australia (that is, where there is no dual criminality).  

At present the way that the provision is constructed could give rise to ambiguity as to when dual criminality is assessed. Item 27 will clarify that dual criminality is to be considered at the time the prisoner’s application for transfer is received by the Attorney-General. 

Item 28 — Paragraph 15(1)(c)

Paragraph 15(1)(c) currently sets out the transfer conditions for a transfer to Australia of a prisoner (other than a mentally impaired or Tribunal prisoner) where the prisoner’s sentence of imprisonment is for a determinate period of time. This provision currently refers to a request under section 24 as a ‘request for transfer’. This does not align with the wording of section 24.  Item 28 is a minor and technical « amendment » to remove the words ‘for transfer’ from this provision which will align the wording of paragraph 15(1)(c) with that at section 24. 

Item 29 — Paragraph 15(2)(b)

Currently under paragraph 15(2)(b) the Attorney-General has a discretion to refuse a request for transfer of a mentally impaired prisoner to Australia where the acts or omissions constituting the offence for which the prisoner is serving the sentence in Australia (or of which the prisoner was acquitted on grounds of mental impairment or unfitness for trial) would not have constituted an offence in Australia, had the conduct occurred in Australia (that is, where there is no dual criminality).  

At present the way that the provision is constructed could give rise to ambiguity as to when dual criminality is assessed. Item 29 will clarify that dual criminality is to be considered at the time the prisoner’s application for transfer is received by the Attorney-General. 

Item 30 — Paragraph 15(2)(c)

Paragraph 15(2)(c) currently sets out the transfer conditions for a transfer to Australia of a mentally impaired prisoner where the prisoner’s sentence of imprisonment is for a determinate period of time. This provision currently refers to an application under section 24 as a ‘request for transfer’. This does not align with the wording of section 24. Item 30 is a minor and technical « amendment » to remove the word ‘for transfer’ from this provision which will align the wording of paragraph 15(2)(c) with that at section 24. 

Item 31 — Section 16

Section 16 currently provides that either a prisoner serving a sentence of imprisonment in Australia, or the prisoner’s representative, may apply to the Attorney-General, in the manner prescribed by the regulations, for transfer to a transfer country.   At present the International Transfer of Prisoners Regulations 2002 prescribes the forms which must be used when making these applications. 

Item 31 will provide that forms for the purposes of section 16 will no longer be prescribed in regulations but instead will be approved by the Attorney-General. This « amendment » will ensure that any changes to the forms can be actioned quickly and easily without having to amend the regulations. This « amendment » will not compromise accessibility of the forms and will still maintain appropriate scrutiny and oversight of the forms through the Attorney-General. The forms will continue to be made available on the Attorney-General’s Department’s public website and information guiding the « use » of these forms will be maintained by the Attorney-General’s Department.    

Item 32 — At the « end » of section 16

Section 16 currently provides that a prisoner serving a sentence in Australia, or the prisoner’s representative may, in a manner prescribed by the regulations, apply to the Attorney-General for transfer to a transfer country. Current section 10 of the ITP Act outlines requirements that must be met for a prisoner to be transferred between Australia and a transfer country. There are a number of situations where the requirements in section 10 may not be met.   

Further, the ITP Act does not place a restriction on when a prisoner may reapply for transfer when their application has been refused or withdrawn. Subsequently, a number of prisoners have reapplied for transfer after their earlier application has been refused by the Attorney-General, the relevant state or territory minister, or the transfer country. Prisoners have also reapplied within months of withdrawing their earlier application. This is particularly problematic where, as is often the case, reapplications are received within months of prisoners being informed that their earlier application has been refused, and there is no new information or change in circumstances to support a request for transfer. The processing of these reapplications is not resource or time efficient, especially when the outcome is not going to change due to the lack of new information. 

Item 32 will insert a note at section 16 to provide that (as set out in new section 10A to be inserted by item 22), the Attorney-General need not take any steps to decide whether to consent, or refuse to consent, to the transfer of a prisoner if certain requirements are not met or if reapplications are received by the Attorney-General less than one year after an earlier application for the prisoner was not proceeded with. 

Item 33 — Sections 17, 18 and 19

The ITP Act currently prescribes two separate steps for notifying a transfer country of an application for transfer, and seeking the transfer country’s consent to the transfer and its proposed terms of sentence enforcement. Specifically, section 17 enables the Attorney-General to seek a foreign country’s provisional views on an application for transfer. Section 18 then enables the Attorney-General to make a formal request for transfer, while section 19 provides for the information to accompany a formal request. Section 17 also contains a process for notifying and seeking the views of the relevant state or territory.

The legislative two-step process for seeking the transfer country’s consent is inefficient and time-consuming. Item 33 will repeal these provisions and will replace them with new sections 17 and 18 containing a simpler process to combine the steps required for dealing with the foreign country.   

New section 17 will mirror the existing requirements in relation to dealing with the relevant state or territory. Specifically, subsection 17(1) will provide that the Attorney-General must give state or territory Ministers whose consent is required to the proposed transfer a copy of the prisoner’s application and any other information the Attorney-General considers relevant. For example, if a prisoner is serving a sentence of imprisonment in New South Wales, the Attorney-General would forward a copy of the application and any other information to the New South Wales Minister. 

Subsection 17(2) will provide that the state or territory Ministers may advise the Attorney-General of any matters they consider relevant to the processing of the application. Further, state or territory Ministers may request the Attorney-General to obtain information from the transfer country that is relevant to that Minister’s assessment of the application. The effect of this « amendment » is to ensure that the State or Territory Minister can both seek and provide information relevant to the proposed transfer.

New section 18 will set out the process for seeking a transfer country’s consent to transfer.  Subsection 18(1) will require the Attorney-General to ask the transfer country whether or not it consents to the transfer and to propose the terms on which that transfer is to be made. This amounts to notification of the transfer country for the purposes of the Council of Europe Convention on the Transfer of Sentenced Persons and any bilateral agreements. 

Subsection 18(2) provides that any request from the Attorney-General to the transfer country is to include a copy of the section 16 application, any agreed information required by the transfer country and any further information the Attorney-General deems relevant such as information provided by a state or territory Minister. 

Item 34 — Subsection 20(3)

Section 20 sets out the process for seeking the consent of the prisoner, relevant state and territory Ministers and the Attorney-General to a proposed transfer. In particular, under subsection 20(3), the Attorney-General is to determine whether or not to consent to the transfer on the terms proposed by the transfer country. Section 20 also provides that the Attorney-General must indicate to the transfer country if he or she will give consent to the transfer if the transfer country agrees to a variation of their proposed terms. It is unclear on the current wording of the ITP Act if it is a mandatory requirement that the Attorney-General ‘is to notify the transfer country ... if consent will be given if the transfer country agrees to variation of the terms’ regardless of whether that variation would be acceptable to the other country. This is in contrast to the original purpose of the ITP Act where it was intended that the Attorney-General would have the discretion to advise whether he or she might consent if the transfer country agreed to a variation of terms.

Item 34 will repeal subsection 20(3) and replace it with three subsections (subsections 20(3), (4) and (5)) to clarify the steps in relation to the Attorney-General’s consent. 

New subsection 20(3) will provide that the Attorney-General must decide whether to consent to the transfer of the prisoner from Australia on the terms proposed by the transfer country. Under subsection 20(4) the Attorney-General will also be required to notify the transfer country of his or her decision. 

Under subsection 20(5), where the Attorney-General decides not to transfer on the terms proposed by the transfer country, the Attorney-General will have a discretion to include in the notice to the other country that his or her consent may be forthcoming if the transfer country is willing to accept a variation to the terms proposed. The consent referred to in subsection 20(5) will be specifically not guaranteed, since any transfer on varied terms requires the consent of the relevant state or territory, the Attorney-General, the prisoner and the foreign country.

This « amendment » will make clear that the Attorney-General’s decision to seek variation of terms is purely discretionary. As such, the Attorney-General will not be required to seek a variation to proposed terms where it is clear that the transfer country will not agree to the revised terms.  This is in line with the original intent of the provision, as outlined in the Explanatory Memorandum to the International Transfer of Prisoners « Bill » 1996:

59. Subclause [20](3) provides that the Attorney-General is to determine whether or not consent should be given to the transfer on the terms proposed and is to notify the transfer country accordingly.   The subclause also recognises that the Attorney-General may inform the transfer country that consent will be given if that country agrees to a variation of the terms. [ emphasis added ]

Items 35-38

The amendments at items 35-38 will amend section 24 to ensure prisoners can make a transfer application directly to Australia.

Section 24 currently provides that the Attorney-General may consent to a request from a transfer country for the transfer of a prisoner (other than a Tribunal prisoner) to Australia if the Attorney-General is satisfied that the transfer can be made in compliance with section 10. The wording of this provision restricts transfer applications to only coming from the transfer country. 

Item 35

Item 35 will insert new numbering to section 24 by adding the number ‘(1)’ before the word ‘The’, as a consequence of item 38 which will add a new subsection to section 24. 



 

Item 36

Section 24 currently provides that the Attorney-General may consent to a request from a transfer country for the transfer of a prisoner to Australia. This wording restricts transfer applications to only coming from the transfer country. Item 36 will remove the words ‘from a transfer country’ as a consequence of the amendments to be made by item 38 enabling requests for transfer of a prisoner to also come from the prisoner themselves or the prisoner’s representative as well as the transfer country. 

Item 37

In line with the « amendment » to ensure that prisoners wishing to apply for transfer to Australia may do so through the sentencing country or directly to Australia (captured by the removal of the words ‘a transfer country’ from section 24), item 37 will replace the words ‘that country’ with the words ‘a transfer country’, given the transfer country is no longer referred to previously in the provision.  

Item 38

Item 38 will insert a new subsection at the « end » of section 24, setting out that a request may be made by the transfer country, the prisoner or the prisoner’s representative. The effect of the amended provision is that requests for transfer of a prisoner to Australia will not be restricted to only coming from a transfer country, but can also come from the prisoner themselves or the prisoner’s representative.  This brings the ITP Scheme in line with the Council of Europe Convention on the Transfer of Sentenced Persons , which Australia has ratified. 

Item 38 will also insert a note at the « end » of section 24. Current section 10 of the ITP Act outlines requirements that must be met for a prisoner to be transferred between Australia and a transfer country. There are a number of situations where the requirements in section 10 may not be met.   

Further, the ITP Act does not place a restriction on when a prisoner may reapply for transfer when their application has been refused or withdrawn. Subsequently, a number of prisoners have reapplied for transfer after their earlier application has been refused by the Attorney-General, the relevant state or territory minister, or the transfer country. Prisoners have also reapplied in circumstances where they have withdrawn their earlier application. This scenario is particularly problematic where, as is often the case, reapplications are received within months of prisoners being informed that their earlier application has been refused, and when there is no new information or change in circumstances to support a request for transfer. The processing of these reapplications is not resource or time efficient, especially when the outcome is not going to change due to the lack of new information. 

Item 38 will insert a note at section 24 to provide that (as set out in new section 10A, inserted by item 22), the Attorney-General need not take any steps to decide whether to consent, or refuse to consent, to the transfer of a prisoner if certain requirements are not met or if reapplications are received by the Attorney-General less than one year after an earlier application for the prisoner was not proceeded with. 

Item 39 — Section 28

Section 28 currently provides that, in seeking a transfer country’s consent to transfer, the Attorney-General is to notify the transfer country when all appropriate Ministerial consents have been given. The words ‘appropriate Ministerial consent’ are defined at section 5 to include the consent of the Attorney-General.  As the Attorney-General is not able to provide his consent until the transfer country provides its consent, the current wording of this provision could give rise to ambiguity. New section 28 clarifies that the Attorney-General’s consent is not required prior to seeking the consent of the transfer country to the transfer.  

New subsection 28(1) will provide that as soon as possible after the criteria at subsection 28(2) are satisfied for a transfer, the Attorney-General must notify the transfer country that those criteria are satisfied and ask the transfer country:

·         whether it consents to the transfer of the prisoner on the terms proposed by the Attorney-General, and

·         to advise whether the prisoner, or the prisoner’s representative, consents to transfer on those terms.

New subsection 28(2) will set out the criteria which must be satisfied before the Attorney-General is to notify the transfer country and seek their consent to the transfer. These criteria are:

·         the prisoner is eligible for transfer to Australia (as required by subsection 10(a) of the ITP Act)

·         the relevant conditions for transfer of the prisoner are satisfied (as required by subsection 10(e) of the ITP Act)

·         the transfer is not likely to prevent the surrender of the prisoner to any extradition country known by the Attorney-General to have requested the extradition of the prisoner or to have expressed interest in extraditing the prisoner or that, in the opinion of the Attorney-General, is reasonably likely to request extradition (as required by subsection 10(f) of the ITP Act), and

·         applicable state and territory Ministers have given consent in writing to transfer as required by subsection 10(d) of the ITP Act.

By clarifying that only the relevant state and/or territory consents are required, this provision will make clear that the Attorney-General’s consent is not required prior to seeking the transfer country’s consent to transfer. 

Item 40 — section 52

Section 52 currently requires the Attorney-General to arrange for any prisoner or prisoner’s representative, who makes a request for transfer, to be kept informed of the progress of the request. The way that the provision is constructed could give rise to ambiguity as to whether this obligation equally applies to situations where an application is made by a transfer country on behalf of a prisoner.

Item 40 will repeal section 52 and substitute it with a provision that will clearly require the Attorney-General to arrange to keep the prisoner or prisoner’s representative informed, regardless of whether they or the transfer country made the request for transfer. 

This « amendment » will ensure that regardless of whether the application is made directly to Australia or through the transfer country, the Attorney-General will be obliged to arrange for the prisoner or prisoner’s representative to be kept informed of the progress of the request.

 

 

Item 41 — At the « end » of section 53

Section 53 currently allows the Attorney-General to delegate all or any of his or her powers under the ITP Act or the Regulations to the Secretary of the Department or an SES employee (or acting SES employee) in the Department.  

Item 41 will provide that the Attorney-General can additionally delegate his or her powers to a person performing the duties of an Executive Level 2 or equivalent. As a number of the Attorney-General’s powers in the ITP Act are administrative and non-contentious in nature, it is appropriate that the Attorney-General has the option to delegate these powers to an APS employee who holds or performs the duties of the Executive Level 2, or equivalent, position in the Department. 

PART 4 — Application and transitional provisions

Item 42 — Application of Amendments

Item 42(1) will provide that the amendments made by Schedule 3 will apply to requests for transfer from or to Australia which are received at or after the commencement of Part 4 of this schedule or before the commencement of Part 4, if, at commencement, the Attorney-General had yet to make a decision on the application or request. The effect of the provision is that the ITP Act as amended by this Schedule will apply to any request under consideration by the Attorney-General at the time the amendments commence, or received at any time after commencement. 

However, item 42(2) provides that new section 10A (to be introduced by item 22) will only apply to applications or requests received at or after the commencement of Part 4. New subsection 10A(1) will ensure that the Attorney-General need not take steps to make a decision where a transfer cannot proceed due to an application not meeting at least one of the requirements under the ITP Act.  New subsection 10A(2) will allow the Attorney-General to not take steps for making a decision in relation to a transfer to or from Australia where reapplications are received by the Attorney-General less than one year after a decision not to progress the application. In relation to subsection 10A(2), this will be the case regardless of when the earlier application was received. 

Item 43 — Transitional — saving current prescribed forms

Section 16 as amended by item 31 will no longer require forms to be prescribed in the regulations, but rather, will require the forms to be approved by the Attorney-General. Item 43 will provide that any forms made for the purposes of section 16 which are in force immediately before the commencement of Schedule 3 are to be taken to be a form approved by the Attorney-General for the purposes of section 16. The effect of this provision is that it will not be necessary to seek the Attorney-General’s approval of the forms that are currently in the regulations. These forms will be deemed to be the approved form for the purposes of section 16, until the Attorney-General approves a new form for the purposes of that section.

 



 

Schedule 4— Slavery offences: jurisdiction

GENERAL OUTLINE

Schedule 4 amends the Criminal Code Act 1995 (the Code) to clarify that the slavery offences in section 270.3 have universal jurisdiction.

This approach accords with the prohibition of slavery as a jus cogens (peremptory) norm of customary international law - meaning that it is non-derogable and applies at all times and in all circumstances - and one that is expressly prohibited by a number of treaties to which Australia is a party.

It is also in keeping with Australia’s recognition of universal jurisdiction as a well-established principle of international law, and one which extends to a range of crimes including piracy, genocide, war crimes, torture and other crimes against humanity.

Criminal Code Act 1995

Item 1 -  At the « end » of Subdivision B of Division 270 of the Criminal Code

This item inserts a new section 270.3A of the Code, which provides that the slavery offences in section 270.3 have universal jurisdiction.

Currently, slavery is criminalised under section 270.3 of the Code; however, the geographical jurisdiction of these offences is not specified. Where jurisdiction is not explicit in the Code, standard geographical jurisdiction (limited to conduct occurring wholly or partly in Australia) applies unless a contrary intention appears.

The Explanatory Memorandum to the Criminal Code « Amendment » (Slavery and Sexual Servitude) Act 1999 notes the offences apply ‘whether the conduct occurs inside or outside Australia and whether or not the offender is an Australian national’, suggesting the intention in creating the slavery offences was that they would have universal jurisdiction.

The extension of jurisdiction will ensure agencies are able to investigate and prosecute these offences wherever they occur.

This item also inserts a new section 270.3B, which specifies the Attorney General’s permission to prosecute is required where a slavery offence takes place wholly outside of Australia’s territory. This approach is consistent with other Code offences with universal jurisdiction. 

Item 2 -  Application of « amendment »

This item specifies that the « amendment » in item 1 applies in relation to offences committed on or after the commencement of this Schedule.



 

Schedule 5— Validating Airport Investigations  

GENERAL OUTLINE

The purpose of Schedule 5 is to ensure that members of the Australian Federal Police, and special members, had access to the appropriate range of investigatory powers to investigate applied State offences in designated State airports from the 19 March 2014 until the 17 May 2014.

 

Item 1 - Definitions

 

This item defines a ‘Commonwealth place’ by reference to the definition in the Commonwealth Places (Application of Laws) Act 1970 (COPAL Act).  Section 3 of the COPAL Act defines a ‘Commonwealth place’ as a place with respect to which the Parliament has exclusive power to make laws for the peace, order and good government of the Commonwealth by virtue of section 52 of the Constitution.

 

A ‘designated State airport’ is similarly explained by reference to the definition in the COPAL Act. Section 3 of the COPAL Act defines a ‘designated State airport’ as a Commonwealth place airport that is situated in a State or States and is prescribed by the regulations for the purposes of this definition. A designated airport will be prescribed as any one of the following airports: Adelaide Airport, Brisbane Airport, Coolangatta (Gold Coast) Airport, Hobart Airport, Melbourne (Tullamarine) Airport, Perth Airport and Sydney (Kingsford-Smith) Airport.

 

A ‘member of the Australian Federal Police’ is given the same meaning as in the Australian Federal Police Act 1979 (the AFP Act) .  Section 4 of the AFP Act defines ‘a member of the Australian Federal Police’ as the Commissioner of Police, a Deputy Commissioner of Police or an AFP employee in respect of whom the Commissioner has declared to be a member of the AFP under section 40B of the AFP Act.

 

The ‘relevant Crimes Act provision’ is given the same meaning as within the COPAL Act.  Section 3 of the COPAL Act specifies particular provisions of the Crimes Act 1914 (Cth) which are available to the AFP when conducting the investigation of applied State offences.  The provisions that apply are: Part IAA (dealing with search, information gathering, arrest and related powers), section 9 (which provides for the seizure and condemnation of forfeitable goods), section 13 (allowing the institution of proceedings in respect of offences), section 15 (dealing with the discharge of defendants) and Part ID (dealing with forensic procedures).

 

The ‘relevant period’ is explained as the period starting on 19 March 2014 and ending on 16 May 2014.  This is intended to cover the period from when the Commonwealth Places (Application of Laws) Regulations 1998 where repealed on 19 March 2014 until when the Commonwealth Places (Application of Laws) Regulation 2014 came into effect on 17 May 2014.

 

The definition of ‘special member’ is given the same meaning as within the AFP Act.  Section 4 defines a ‘special member’ as an AFP employee appointed by the Commissioner as a protective service officer of the AFP under section 40EB of the AFP Act.

 



 

Item 2 - Validating Airport Investigations

Item 2 validates the exercise of a relevant Crimes Act provision by a member of the AFP, or special member, during an investigation of an applied State offence in relation to a Commonwealth place that would otherwise have been invalid because the Commonwealth place was not a designated State airport.  This retrospective application is limited to the period starting 19 March 2014 and ending on 16 May 2014 (the ‘relevant period’) and refers only to those Commonwealth places that were a designated State airport on the day after this relevant period.  As explained in the note, this item means that the relevant Crimes Act provisions validly apply in relation to the thing done under subsection 5(3A) of the COPAL Act. 

Subsection (3) specifies that this does not affect rights or liabilities arising between parties to a proceeding that have commenced prior to the introduction of the Schedule to the extent that these rights or liabilities arose from an exercise of a Commonwealth power by a member of the AFP during an investigation of an applied State offence.

 

Item 3 - Compensation for acquisition of property

 

Item 3 specifies that the Commonwealth is liable to pay a reasonable amount of compensation in the event that the operation of this Schedule would result in the acquisition of property from a person other than on just terms.  The person may institute proceedings in a court of competent jurisdiction in the event that the Commonwealth and the person do not agree on the amount of compensation.  This is intended to cover instances where property may have been seized, for example for evidentiary purposes, during the ‘relevant period’ that gives rise to a damages claim. 



 

Schedule 6 — Minor Amendments  

GENERAL OUTLINE

Schedule 6 makes minor and technical amendments to the Financial Transaction Reports Act 1988 (FTR Act).  These amendments will simplify the FTR Act to give permanent effect to an exemption granted by the AUSTRAC CEO, simplifying the obligations of cash dealers, in line with the Government’s deregulatory agenda.

In addition, Schedule 6 amends section 301.11 of the Criminal Code Act 1995 (the Code) to correct an error in the definition of a minimum marketable quantity in respect of a drug analogue of 1 or more listed border controlled drugs. It also amends Division 312 of the Code to update references to the border controlled drugs list and the controlled drugs list for the purposes of working out commercial, marketable or trafficable quantities of drugs and precursors in mixtures, or where different kinds of drugs, plants or precursors are involved.

Finally, Schedule 6 corrects minor grammatical errors in subsection 205E(2) and paragraphs 205E(2)(a) and (b) of the « Customs » Act.

Criminal Code Act 1995

Item 1 - Section 301.11 (table item 3, column headed “Marketable quantity (minimum)”)

Section 301.11 assists in determining the marketable threshold quantities for the controlled drugs list contained in Schedule 3 of the Criminal Code Regulations 2002. Section 301.11 defines marketable quantity as it relates to a serious drug, controlled precursor or border controlled precursor as well as to drug analogues of listed controlled or border controlled drugs.

This provision includes a table which indicates to the reader all possible meanings of ‘marketable quantity’ that apply to the offences in Part 9.1 of the Code. At item 3, the minimum marketable quantity of a drug analogue of 1 or more listed border controlled drugs is prescribed as being the ‘commercial quantity’ of the listed drug.

The « amendment » will ensure that in relation to a drug analogue of one or more listed border controlled drugs, the minimum marketable quantity is the marketable quantity listed in the regulations for that border controlled drug.   If a substance is a drug analogue of two or more listed border controlled drugs then the minimum marketable quantity of the drug analogue is calculated by taking the smallest marketable quantity of the two or more listed drugs.

Item 2 - Paragraph 312.1(1)(b)

Paragraph 312.1(1)(b) sets out how to determine quantities of listed controlled drugs in mixtures. The paragraph refers to the quantities specified in the listings of such drugs.

The paragraph currently refers to Division 314, which had previously contained the drugs listings but which was repealed in 2013.  These listings are now contained in Regulations.

This item will correct this error by substituting the reference to ‘in Division 314’ with ’in Regulations made for the purposes of item 1 of the table in section 301.10, 301.11 or 301.12’..



 

Item 3 - Paragraph 312.1(3)(b)

Paragraph 312.1(3)(b) sets out how to determine quantities of listed border controlled drugs in mixtures. The paragraph refers to the quantities specified in the listings of such drugs.

The paragraph currently refers to Division 314, which had previously contained the listed border controlled drugs but which was repealed in 2013. These listings are now contained in Regulations.

This item will correct this error by substituting ‘in Division 314’ with ‘in Regulations made for the purposes of item 1 of the table in section 301.10 or 301.11’.

Item 4 - Paragraph 312.2(4)(b)

Paragraph 312.2(4)(b) sets out how to determine quantities of listed controlled drugs in mixtures where different kinds of drugs, plants or precursors are involved. The paragraph refers to the quantities specified in the listings of such drugs.

The paragraph currently refers to Division 314, which had previously contained the listed drugs but which was repealed in 2013. These listings are now contained in Regulations.

This item will correct this error by substituting ‘in Division 314’ with ’in Regulations made for the purposes of item 1 of the table in section 301.10, 301.11 or 301.12’..

Item 5 - Paragraph 312.2(5)(b)

Paragraph 312.2(5)(b) offsets out how to determine quantities of listed border controlled drugs in mixtures where different kinds of drugs, plants or precursors are involved. The paragraph refers to the quantities specified in the listings of such drugs.

The paragraph currently refers to Division 314, which had previously contained the listed border controlled drugs but which was repealed in 2013. These listings are now contained in Regulations.

This item will correct this error by substituting ‘in Division 314’ with ’in Regulations made for the purposes of item 1 of the table in section 301.10 or 301.11” in place of “in Division 314’.

« Customs » Act 1901

Items 6 to 8 - Subsection 205E(2)

These items correct minor grammatical errors in subsection 205E(2) and paragraphs 205E(2)(a) and (b).   They do not make substantive changes to the Act.

Financial Transaction Reports Act 1988

Item 9 - Subsection 3(1) (definition of FTR information )

This item removes reference to repealed subsection 18(8A) (see item 6) in the definition of FTR information at subsection 3(1) of the FTR Act.



 

Item 10 - Sections 18 and 19

This item repeals sections 18 and 19 of the FTR Act, giving permanent effect to exemption 3 of 2013 granted by the AUSTRAC CEO pursuant to section 41A of the FTR Act. 

Exemption 3 of 2013 removed obligations of cash dealers under section 18 to block accounts in certain circumstances and associated obligations of the AUSTRAC CEO under section 19 to give notice to the account signatories, unblock accounts if satisfied of certain circumstances and forfeit all rights and interests in relation to the account in certain circumstances.

The AUSTRAC CEO granted exemption 3 of 2013 due to the fact that the obligations imposed on cash dealers under section 18 of the FTR Act were largely duplicative of safeguards contained in the subsequent AML/CTF Act.

Item 11 - Paragraph 20(1)(b)

This item reflects the modified punctuation that will be required at the « end » of paragraph 20(1)(b) when the reference to subsection 18(1) is removed (see item 8).

Item 12 - Subsection 20(1)

This item removes reference to repealed subsection 18(1) (see item 6) in section 20 on the information required to be held by cash dealers.

Item 13 - Paragraph 29(3)(a)

This item removes reference to repealed section 18 (see item 6) in relation to the requirement that a person must not make a report, statement or declaration that the person knows is false or misleading under subsection 29(3).

Item 14 - Paragraph 29(3)(b)

This item removes reference to a ‘statement [made under section 18]’ as this is a reference to repealed section 18 (see item 6).

Item 15 - Section 42

This item removes reference to repealed subsections 19(2) and (3) (see item 6) in section 42 on decisions of the AUSTRAC CEO to which the Administrative Decisions (Judicial Review) Act 1977 applies.

Surveillance Devices Act 2004

Item 16 - Subsection 6(1) (paragraph (c) of the definition of relevant offence)

This item removes from the definition of ‘relevant offence’ reference to offences against repealed section 18 (see item 6).



 

ATTACHMENT A

Regulation Impact Statement: Banning the importation of substances which mimic the effects of illicit drugs

Attorney-General’s Department

July 2014

Problem

Substances which mimic the effects of, or that are marketed as legal alternatives to, illicit drugs but whose chemical structures fall outside existing controls (also known as new psychoactive substances or ‘NPS’) have been a growing problem for Australian governments in recent years.  NPS are frequently marketed as ‘legal highs’ and are purchased in Australia either over the internet or from retailers such as sex shops and tobacconists.  There have been a number of reports both in Australia and overseas directly linking the consumption of these substances to deaths and serious injury.

NPS have received significant media attention in Australia in recent years following a number of tragic deaths of people who had recently consumed these substances.  For example, in

October 2012, a NSW man died and his girlfriend was hospitalised after they consumed ‘bath salts’.  In December 2012 and July 2013, two NSW teenagers died following their consumption of NBOMe, a substance with hallucinogenic effects similar to LSD.

While there have been greater efforts to collect and analyse data on NPS in recent years, it is difficult to assess the full extent of the problem.   The very nature of these substances means there is limited information available about them, their prevalence, « use » and health effects.    The term ‘NPS’ covers a broad range of new and emerging synthetic drugs, the structure, effects and health consequences of which are constantly evolving.  Further, data collection and analysis has historically focused on more established drugs, both licit and illicit.  Because NPS are a relatively recent phenomenon, and because they exist on the fringes of legality, there is no quantitative data on their precise health costs and long-term side effects. 

However, there is evidence that these substances are potentially very dangerous.  They are untested chemical compounds which masquerade as illicit drugs (such as cannabinoids, ecstasy or LSD), but that are presented as being legal analogues of those drugs.  In many cases these substances are variations of failed pharmaceuticals or research chemicals which were designed to be pharmacologically potent and to affect the same areas of the brain as known illicit drugs, but which have had no successful safety assessment or human trials. [11]

The marketing of NPS as ‘legal highs’ is particularly concerning.  When manufacturers and retailers assert that they are ‘legal’ it may suggest to potential users that the substances have been tested and authorised for sale.  It can create the impression that NPS are safe or somehow less harmful than the illicit drugs whose effects they are supposed to replicate.

This is not the case.  These substances are typically untested, there is often great variation in the concentration of active ingredients between different products and their short and long term health effects are often unresearched and unknown. [12]   Further, labelling NPS as ‘legal’ is not always correct, as the substances may be listed specifically as illicit drugs, or caught as analogues of other listed illicit drugs.  For example, the product involved in one high profile case had been presented by the product’s retailer, its distributor and the legal advisor to the distributor as being ‘legal’, when it in fact contained Alpha-PVP, an analogue of methcathinone, a listed illicit drug. [13]  

The market for NPS

While there is limited data about the Australian NPS market, current indications are that it does not compare with the scale of established illicit drug markets. [14]   The supply of NPS is primarily conducted underground and over the internet, with substances mislabelled as ‘bath salts’ or ‘not for human consumption’ in an attempt to hide their true nature and « use » .  

However, based on international data (particularly the experiences of Ireland and New Zealand), this market has a clear potential for growth if it is left unchecked.  Findings from the 2013 Report of the Ecstasy and Related Drugs Reporting System ( a national monitoring system for ecstasy and related drugs in regular drug users) note that NPS continues to grow as a class of drug, with 44% of the sample reporting using at least one NPS, compared to 40% in 2012.

There is significant global concern about the health risks of NPS « use » .   The United Nations Office on Drugs and Crime (UNODC) 2013 World Drug Report notes that, worldwide, the number of NPS reported by Member States rose from 166 at the « end » of 2009 to 251 by mid-2012.  This exceeds the total number of 234 illicit drugs currently controlled by the international drug conventions.

A 2013 UK Parliamentary report noted that between 2005 and 2012, some 236 new psychoactive substances were formally identified and logged on the European Monitoring Centre for Drugs and Drug Addiction's (EMCDDA) early warning system. [15]   In 2012, for the fourth consecutive year, a record number of 73 new substances were detected in Europe, up from 49 substances in « 2011 » , 41 substances in 2010 and 24 in 2009. [16]   In terms of popularity, the  UNODC’s  2013 World Drug Report highlighted that in « 2011 » , a European survey of more than 12,000 young people (aged 15-24), estimated that 5% of young Europeans had used 'legal highs' at some time (with about half of the countries falling in the range 3-5%). [17]  

The supply of NPS has the potential to be big business.   The Australian Crime Commission (ACC) has noted that NPS:

are sold in Australia at low prices per dose, [and] have the potential to generate criminal profits in excess of those obtained from trafficking more established illicit drugs, such as heroin and cocaine, although at present the [NPS] market does not compare in size with more traditional illicit drug markets. [18]

Similarly, there have been reports that retailers have known about possible dangers involved with specific NPS, but continued to sell those substances because ‘the profit margins were too high’. [19]

The active ingredients in NPS are exclusively imported into Australia from overseas manufacturers, though they may be packaged or prepared for sale within Australia.  Compared to 2006, the Australian « Customs » and Border Protection Service (ACBPS), the Australian Federal Police (AFP) and ACC have all reported a significant increase in detections and seizures of these substances at the border in 2012-13, though the precise number and weight of NPS detections and seizures varies from year to year. [20]   This trend mirrors the experience in other countries. [21]  

However, as noted above, statistics for NPS likely underrepresent the scale of the problem as the forensic testing of these substances is more limited than for mainstream illicit drugs and because law enforcement agencies collect only limited data on substances (or their analogues) that are not listed as illicit.

This is demonstrated in the statistics on seizures of NPS.  The Illicit Drug Data Report 2012-13 (IDDR) notes that there were about 60 seizures of novel psychoactive substances and drug analogues in 2012-13. [22]   These seizures primarily related to listed illicit drugs (such as novel cathinone-type substances, synthetic cannabinoids and novel piperazine-type substances) and their analogues, rather than to NPS that are uncontrolled.  However, preliminary data from the ACBPS suggests that, in a similar period, it would have stopped for further analysis about 1,000 imports on suspicion that they involved the importation of NPS.  The ACBPS could not ultimately seize these substances because subsequent testing showed they were not a listed illicit drug.  While some of these substances may not have been NPS, the discrepancy between this figure and the figure in the IDDR highlights the difficulty involved in gathering data on substances that are largely unregulated.

Despite there being limited quantitative data on the NPS market in Australia, the evidence is clear that « use » is growing, and that this is consistent with international trends.

Current illicit drug regulation

Current Commonwealth criminal laws, set out in part 9.1 of the Criminal Code and the

« Customs » (Prohibited Imports) Regulations 1956 (Prohibited Imports Regulations), ban substances by chemical structure, with analogue clauses to capture structurally similar substances.   Newly identified NPS are progressively added to these lists as evidence about their harms becomes available.  In considering whether to list a substance by regulation under the Criminal Code, the Minister for Justice must be satisfied that the substance is likely to be taken without appropriate medical supervision, and:

·          taking the substance would create a risk of death or serious harm

·          taking the substance would have a physical or mental effect substantially similar to that caused by taking a listed illicit drug

·          the substance has the capacity to cause physiological dependence

·          the substance is banned as an illicit drug in an Australian State or Territory, or in a foreign country, or

·          the substance poses a substantial risk to the health or safety of the public.

To assist in the timely listing of new and emerging illicit drugs, in 2012, the Commonwealth improved the mechanism to make emergency determinations by expanding the listing period and refining the criteria that must be satisfied before a determination can be made. [23]   Under sections 301.13-301.15 of the Criminal Code, the Minister for Justice may list previously undetected and harmful NPS (including their precursors) by chemical structure in the Criminal Code for up to 18 months under an emergency determination, to allow time to assess whether they should be listed indefinitely.   In considering whether to make an emergency determination about a substance, the Minister for Justice must be satisfied that there is an imminent and substantial risk that the substance will be taken without appropriate medical supervision, and:

·          taking the substance may create a risk of death or serious harm

·          taking the substance may have a physical or mental effect substantially similar to that caused by taking a listed illicit drug

·          a public official has found the substance in the course of his or her duties, and there is limited or no known lawful « use » for the substance in Australia, or

·          the substance may pose a substantial risk to the health or safety of the public.

Criminal laws based on the chemical structure of a substance are important in controlling illicit drugs whose harms are known.  This approach is ill-suited to dealing with the increasing rate of introduction of new, untested and potentially harmful substances, each with a different chemical structure.  There is evidence that, as one substance is banned, suppliers will quickly import new substances with slightly different chemical structures that have been designed to evade criminal controls. [24] In circumstances where there are an almost limitless number of potential NPS, [25] controls based solely on the structure of illicit drugs will permanently lag behind the market.  AGD’s experience has been that, even with the available fast-track emergency determination process outlined above, illicit drug laws are unable to keep pace with the rate of introduction of previously unknown NPS.  While controls continue to be based on chemical structure, potentially dangerous substances will continue to be imported and sold while authorities undertake lengthy processes to identify them, assess their harms and list them by their structure.

ACBPS officers currently detain unregulated NPS when they are detected at the border on the basis that they suspect those substances are illicit drugs.  If the detained substances are not illicit drugs, officers cannot formally seize them and must allow their importation, even if the ACBPS suspects the substance is being imported solely for consumption as an alternative to a listed illicit drug.

Objectives

The broad objective of the policy is to reduce the impact of NPS on public health and make existing criminal laws more effective in responding to this emerging issue.  Governments need time to assess the health effects, harms and risks of NPS detected in Australia before they can apply specific criminal offences or other controls to individual substances.  The health risk that NPS pose can be significant.  As NPS are often unregulated and unassessed, there is little knowledge and information about their effects, which can pose problems for assessment and successful treatment of harms resulting from their « use » .

There is also limited data available about the scale of their importation, manufacture, supply and « use » .     However, a number of the policy options explored below will assist in developing an evidence base about the problem posed by NPS.  This data will be used to guide further policy development in the future.

Despite the limitations on available data, AGD considers that a successful policy to reduce the impact of NPS on public health should involve the following outcomes:

·          a reduction in the number of reports of persons presenting to emergency departments following the consumption of unknown or unidentified drugs, and

·          a reduction in the number of premises selling NPS, whether as ‘legal highs’ or otherwise.

The Commonwealth does not have the ability to directly affect these outcomes.  The Commonwealth’s primary legislative responsibility with respect to NPS is at the border, and laws relating to the manufacture, supply and advertisement of NPS are primarily the responsibility of States and Territories.  Accordingly, and without greater information about NPS generally, it is not possible to set out more definite and measureable outcomes for the policy.

In addition, Commonwealth action is only one aspect of the national response to NPS.  The Commonwealth’s policy must complement the work of the Intergovernmental Committee on Drugs (IGCD) to develop a coordinated national response to NPS, which includes law enforcement, health and education initiatives.  Further, Commonwealth action should complement State and Territory efforts to control the manufacture, supply and advertisement of NPS.  New South Wales, Queensland and South Australia have already implemented laws that ban substances based on their psychoactive effect, rather than their chemical structure.

Options

AGD has identified four key options for tackling the public health and criminal law issues that NPS pose.  At the outset, AGD notes that this Regulation Impact Statement (RIS) is not seeking to revisit or justify existing Commonwealth criminal controls on illicit substances.

1.         Implement a ban on the importation of substances which mimic the effects of illicit drugs and that are otherwise unregulated

Stopping NPS at the border is fundamental to halting their supply in Australia.  There is no known domestic production of the active ingredients in NPS; they are imported into Australia from overseas. 

Banning the importation of otherwise unregulated psychoactive substances will assist in preventing manufacturers from evading existing border controls by tweaking the chemical structure of illicit drugs.  The measure will operate as a safety net to ensure that potentially harmful substances which mimic the effects of, or are intended as an alternative to, illicit drugs—but are otherwise unregulated—can be seized.  A person who imports a psychoactive substance in contravention of the ban will commit a criminal offence and be liable to prosecution.

AGD acknowledges that there are many substances that would be psychoactive when ingested by humans, but which have a legitimate « use » , such as medicines or foods.   Therefore, the import ban will specifically exclude substances that have a legitimate « use » , such as food, tobacco, alcohol, therapeutic goods, industrial chemicals, agricultural chemicals and veterinary chemicals.   These will continue to be dealt with under existing regimes, such as the Therapeutic Goods Act 1989 (TG Act) and the Industrial Chemicals (Notification and Assessment) Act 1989 (ICNA Act).  The measure will include a power to exclude other legitimate uses by regulation, and to issue permits to allow imports for limited purposes (such as for law enforcement to develop appropriate forensic reference standards).

If an importer seeks to import a psychoactive substance with a legitimate « use » , then he or she will continue to be required to seek the relevant authorisations and comply with the relevant standards under the appropriate regulatory scheme.   This proposal will not affect the existing requirements to which importers are subject under the TG Act, ICNA Act, Food Standards Australia New Zealand Act 1991 (FSANZ Act) , Imported Food Control Act 1992 (Imported Food Act) and the Agricultural and Veterinary Chemicals Code 1994 (AgVet Code), which may include assessment, registration or listing of the substance. [26]

This option would not create a new mechanism to regulate psychoactive substances.   If a substance has a legitimate « use » , then the person seeking to import it will continue to be responsible for ensuring that the importation complies with the appropriate regulatory scheme, including ensuring it has been assessed, registered and approved by the relevant body.

The ban will also not cover illicit drugs.  These will continue to be dealt with under the serious drug offences in the Criminal Code or the Prohibited Imports Regulations.  In effect, this option will control the importation of substances that will, in AGD’s experience, eventually be banned under the existing illicit drugs control schemes.

To be effective at the border, the ban will be supported by changes to allow ACBPS officers to « use » their existing search and seizure powers in relation to psychoactive substances.   The measure is designed to fit within the existing framework for searching for and seizing suspicious substances.  An officer will only « use » these new powers once he or she has determined that the substance is not listed as an illicit drug and does not have a legitimate « use » .  

This will be a small but important change.  As set out above, ACBPS officers already stop many NPS at the border on suspicion that they are illicit drugs or analogues.  This option will give those officers the certainty to stop and seize psychoactive substances destined for « use » as alternatives to illicit drugs, without affecting legitimate importations.

There will also be appropriate review mechanisms to ensure that substances with a legitimate « use » are not incorrectly seized under the measure.   This mechanism will allow an importer who believes his or her goods have been incorrectly seized to make representations and provide evidence to the ACBPS about either the fact that the substance does not have a psychoactive effect, or that it has a legitimate « use » .   It will also allow an importer to go to Court to show that the substance can be imported.

As outlined above, this option would complement State and Territory efforts to control the manufacture, supply and advertisement of NPS, and other elements of a national response developed by the IGCD.  A national response aimed at reducing the supply of NPS is crucial in reducing the impact of these substances on public health.

This option would not replace existing strategies to reduce the health effects of NPS, including structure-based controls and education and other initiatives under the National Drug Strategy 2010-2015.  Rather, it would be used as a complementary mechanism, aimed at reducing the supply into Australia of unknown, unassessed and potentially dangerous chemical substances.  The impacts of this option, and comments from submissions, are explored in more detail below.

2.         Explore a pre-market assessment scheme for psychoactive substances

New Zealand has established a pre-market assessment scheme for psychoactive substances under the Psychoactive Substances Act 2013 .  This scheme allows psychoactive substances that have been assessed as ’low risk’ to be legally sold in New Zealand.  The New Zealand Government recently withdrew all interim approvals for psychoactive products following consistent reports of ‘severe adverse reactions’ to those products. [27]   No psychoactive product can be sold in New Zealand until it has been assessed as posing a ‘low risk’ to humans.

A pre-market assessment scheme would ban the importation, manufacture, supply and advertisement of all substances with a psychoactive effect and that were otherwise unregulated, unless authorised by a Government regulatory agency.  Such an authorisation would only be granted if the agency had assessed the substance to be a low-risk to human health, including examining its specific pharmacological, psychoactive and toxicological effects, its potential to cause death, serious injury or dependence, and the likelihood of its misuse.  The onus would be on the person applying for the licence to demonstrate to the agency that the substance was not harmful.

Three submissions received during consultation on this RIS advocated in favour of this option.  Their views are canvassed in greater detail in the ‘Consultation’ section, below.

AGD does not consider further exploration of a pre-market assessment scheme to be a viable way of dealing with NPS, even though it may assist in reducing some of the harm associated with NPS « use » .  

Exploration of these issues, obtaining national agreement on them, and setting up and implementing a new regulatory regime for psychoactive substances would be an extremely lengthy process.  During this time, the status quo would continue.  Untested and unsafe products will continue to be presented as legal alternatives to illicit drugs and they will continue to cause harm to individuals and the community.

Industry self-regulation

One version of a pre-market assessment scheme, as the Eros Association proposed in its submission, could include industry self-regulation. [28]   The Eros Association noted that its members had begun to implement such a system through the « use » of codes of ethics and conduct, and holographic stickers to denote legitimate products. [29]   The submission provided limited information on the uptake of this system, including by both members and non-members of the Association.

Industry self-regulation is not an appropriate option for a pre-market assessment scheme.  It does not require the kind of proactive, systematic and rigorous testing about the health effects of NPS, particularly over the longer term, that the Australian public expects for the sale of other chemical products (including therapeutic goods).  Industry self-regulation would be reactive, require participants to voluntarily remove products from sale and would not properly address the health risks associated with NPS.  It would not adequately guarantee product safety, but would continue to provide a potentially misleading impression of oversight and safety.

Conclusion

As outlined above, there is limited data about the NPS market in Australia.  Without this data, it is not possible to assess with certainty whether further exploration of a pre-market assessment system would confer greater benefits than the costs it imposed.  However, the recent moves in New Zealand to remove all interim approvals for psychoactive substances following continuing reports of harm suggest that Australia should pursue this option with caution.  This is supported by the limited evidence available about the NPS market in Australia.  The evidence suggests that, while there is clear potential for growth, the problem of NPS « use » is not yet on a scale to rival « use » of more established illicit drugs.   Limited demand for NPS suggests that a pre-market assessment scheme may not be an appropriate mechanism to reduce the health effects of NPS in Australia as their « use » is currently, and would remain, an underground activity undertaken by a small minority of individuals.

Further, exploration of a pre-market assessment scheme would be contrary to the Government’s approach to NPS, which is to list substances as border controlled drugs in the Criminal Code as evidence about their « use » and harms has become available.   It would also be contrary to recent moves in a number of jurisdictions, such as New South Wales, Queensland and South Australia, to comprehensively ban substances that seek to mimic the effects of illicit drugs.

In these circumstances, AGD considers that exploring a pre-market assessment scheme is not a viable option.

3.         Education campaign

Education is of crucial importance in tackling the public health challenges posed by NPS.  It will assist in reducing demand for NPS.

An education campaign, without an accompanying ban or regulatory regime, about the health risks involved in consuming NPS may assist in reducing demand for them.  There would be no regulatory impact involved in pursuing this option alone.

The National Drugs Campaign (NDC) is the Commonwealth Government’s primary education campaign on drugs.  It adopts a primary prevention approach to dealing with the « use » of drugs in the Australian community.   The objective of the NDC is to reduce the uptake of drugs by raising awareness of the harms associated with drug « use » and encouraging and supporting decisions not to « use » .   The next phase of the NDC will feature messaging that stresses the unknown content, unpredictability and harmful effects of a range of illicit drugs, including NPS.

Public education messaging, such as the messaging delivered by the NDC, will need to ensure that it does not inadvertently promote interest in the « use » of NPS as an alternative to established illicit drugs.   This is especially the case in relation to emerging NPS because there continues to be a misconception that NPS are safe because they are presented as being legal. Indeed, there is evidence that, once the harms of a previously used NPS have been established, users will seek an alternative NPS. [30]

However, on its own, an education campaign would neither be effective to control the « use » of NPS, nor to effectively reduce the associated risks to public health in Australia.   Alone, an education campaign would allow people to continue to legally import and promote as legal substances that could lead to serious injury or death.  An effective response to NPS requires measures that both decrease demand and limit supply. 

While quantitative data about the potential impacts of an education campaign is not available, qualitative data about the « use » of such campaigns as the sole mechanism to reduce drug consumption suggests that the overall net benefit of this option is likely to be low, unless it is also accompanied by effective mechanisms to limit the supply of NPS.   Education is an important part of any response to illicit drug « use » , but it is not, and cannot be, a standalone response.   The Australian Drug Law Reform Foundation (ADLRF) supported this conclusion, noting that ‘education campaigns may be a helpful adjunct to an effective policy’. [31]

4.         Continue to progressively ban dangerous substances based on their chemical structure

This is the status quo.  Under this option, people will be able to continue importing untested and potentially harmful substances into Australia for « use » as alternatives to illicit drugs.

As set out above, structure-based controls are insufficient to tackle the challenges posed by NPS.  While the emergency determination mechanism under the Criminal Code enables the Minister to ban substances for up to 18 months on the basis of their chemical structure, this approach is

ill-suited to dealing with both the increasing number of NPS (each with a different chemical structure) and the rate at which they are being imported into Australia.  Under this approach, Government controls will always be behind the market, allowing potentially dangerous substances to be legally imported and sold while authorities identify them, assess their harms and list them by their chemical structure.

AGD considers that this option alone is not feasible.  A number of submissions agreed with this position. [32]   It does not address a significant and known vulnerability at the border and allows people to legally import substances that could lead to serious injury or death.  AGD considers that there is no benefit, and likely a detriment, in continuing solely with the status quo.

Impacts of an import ban

The proposal to ban the importation of NPS is expected to have a positive impact on public health, but a minor regulatory impact.  However, in the absence of comprehensive data about the scale of NPS « use » and the health problems it poses, it is not possible to quantify or definitively state the impact on public health.

The proposal would apply criminal penalties to the importation of substances intended to be used in the same manner as illicit drugs.  Some States, such as New South Wales, Queensland and South Australia, have already moved to control and criminalise these substances by introducing bans that are not based on chemical structure.

The measure will fix a loophole that allows importers to import NPS with a chemical structure intended to evade existing illicit drug import offences.  It will supplement the existing import bans on some NPS in the Criminal Code and Prohibited Imports Regulations by preventing the importation of psychoactive substances which have no legitimate « use » or which are otherwise unregulated.

The measure will not affect the importation of substances with a legitimate « use » but which may also have a psychoactive effect.   This includes therapeutic goods, food, alcohol, tobacco and industrial, agricultural and veterinary chemicals. Existing border controls and regulatory processes will continue to govern the importation of these substances.  For example, if a person wishes to import a therapeutic good that also has a psychoactive effect, he or she will need to obtain the relevant authorisations and approvals to import the substance from the Therapeutic Goods Administration. 

Based on experience, many of the substances that will be captured by the new import offence will eventually be banned under the Criminal Code and Prohibited Imports Regulations.  In this sense, the proposal brings forward the time at which these substances are prevented from entering the country.  This will prevent their large-scale public distribution and potentially dangerous effects on individuals’ health while the Government assesses whether or not importing them should be subject to more significant penalties.

The primary impact of the measure will be to prevent businesses and individuals from obtaining NPS for retail sale as ‘legal highs’ or for personal « use » .   This is anticipated to result in a range of public health benefits flowing from reduced consumption of untested and unknown NPS.

The measure may also result in increased costs for legitimate importers in that it may prompt importers to comply with the requirements of existing regimes regulating the importation of goods and substances.  However, as importers should have been complying with those regimes in the first place, any additional costs will only arise out of improved compliance with existing regulation.

These issues are explored in more detail below.

Health benefits

Implementing the proposed import ban on NPS will likely have public health and safety benefits.  As there is no evidence to suggest that the active ingredients in NPS are manufactured in Australia, the ban will be likely to curtail their supply within Australia.

Health risks of NPS

As noted above, there is limited definitive and quantitative evidence about the health risks associated with the « use » of NPS in Australia due to their relatively recent introduction into the Australian market and ever changing content and composition.   Despite this, there is evidence to suggest that users of NPS risk being exposed to significant physical, mental and social harms.  This data comes from a range of sources, including user reports and clinical observations.

While the health-related problems associated with the « use » of NPS vary, commonly documented effects include:

·          cardiovascular problems

·          severe psychological disorders

·          increased risk of cancer

·          agitation

·          severe psychosis

·          rapid heart rate (tachycardia), and

·          hypertension.

Some of these health issues associated with NPS are similar to those associated with the drugs they are intended to mimic.  In other cases, they are different.

There is also evidence that the toxicity of many NPS may be greater than illicit substances.  Users of NPS may reach toxicity levels very quickly, and these substances may pose a higher risk of overdose than the illicit drugs whose effects they are intended to mimic.  Further, while the side effects of established illicit drugs are well documented, data on human toxicity related to the « use » of NPS remains limited.   The significant variation in chemical content and concentration in NPS products can make determining toxicity levels and understanding side effects difficult.  This variation can pose enormous challenges for health professionals, particularly in emergency departments, who must diagnose and treat the often severe side effects associated with overdoses and the « use » of NPS.

In its submission, the ADLRF argued that there was insufficient evidence that NPS represent a significant problem. [33]   AGD acknowledges that there is limited information about the health risks of NPS.  However, this must be considered in light of recent reports about deaths and serious harm following NPS consumption, evidence from New Zealand about ongoing harm from the consumption of psychoactive products, and the potential for unknown, untested but potent substances to be supplied for human consumption.  In these circumstances, AGD considers that limited data is not an argument in and of itself against a precautionary approach to banning NPS.

Preventing individuals and businesses from obtaining NPS for retail sale or personal consumption

NPS are currently being openly sold and marketed as ‘legal highs’ by, for example, internet retailers, tobacconists and adult shops.  As noted above, the sale of NPS can generate significant profits for retailers and wholesalers.  The body representing a number of NPS retailers has estimated that, nationally, the NPS market is worth $600 million, [34] though this figure does not appear to align with the relatively small number of goods the ACBPS stops on suspicion of being NPS.  As there are no known domestic manufacturers of the active ingredients for NPS, the import ban will prevent these businesses from legally acquiring these products for sale, and prevent them from profiting from their sale.  It will also prevent businesses which import, distribute or wholesale NPS from accessing those substances and profiting from them.

Similarly, the import ban will prevent individuals from legally purchasing NPS over the internet from overseas and importing them into Australia for personal consumption or resale.  This will result in a loss of consumer surplus for these individuals.  However, as set out below, this may be mitigated if people are displaced into using other drugs, licit or illicit.

Legality of NPS

The legality of products containing NPS is often questionable.  Accurate information about their ingredients is often difficult to obtain, and those ingredients may already be controlled or banned under existing Commonwealth, State and Territory legislation. 

Further, the legality of sale of NPS varies across jurisdictions.  New South Wales, Queensland and South Australia have criminalised the manufacture, supply and advertisement of substances that have been designed, or are intended, to mimic illicit drugs.

Therefore, introducing an import ban on NPS will ensure that those substances are illegal.  Importers of NPS will no longer be uncertain about whether their goods will be stopped, seized and destroyed at the border. [35]   As noted above, in addition to the comprehensive bans on NPS in New South Wales, Queensland and South Australia, various NPS are already listed as illicit drugs (or captured by analogue clauses) in all jurisdictions and, based on experience, many will be listed by chemical structure in the future as information about the risks they pose and their health effects becomes available.  This further limits the actual regulatory impact of the measure: NPS are either already banned or likely to be banned in the near future.

Possible displacement effects

By improving ACBPS officers’ powers to seize NPS at the border, the import ban will reduce the availability of these substances for human consumption.

The absence of data around NPS « use » and the drug habits of users makes it difficult to predict how reduced availability of NPS may affect current users.   It may cause current users to shift their NPS consumption to other, more established illicit drugs. [36]   Other users may shift their consumption to licit drugs, such as alcohol, or cease consuming drugs for non-therapeutic purposes altogether.

Submissions from the ADLRF and the Eros Association both highlighted the potential displacement effects of an import ban.  They noted that such a ban had the potential to create a black market for NPS and stimulate domestic production.  The ADLRF noted that ‘if strong demand persists in the absence of a legal supply, illegal sources of supply generally emerge’. [37]   Similarly, the Eros Association asserted that an import ban would ‘simply kick-start the large-scale production of these drugs in Australia’. [38]   These submissions argued that a pre-market assessment scheme would reduce the black market for drugs, citing significant reductions in the retail sale of psychoactive products in New Zealand following the introduction of its scheme. [39]  

AGD notes that the possibility of a black market for NPS exists irrespective of whether Australia implements a ban on NPS or a pre-market assessment scheme.  In particular, a pre-market assessment scheme would likely involve considerable establishment and ongoing costs as well as high costs associated with testing to establish the low risk of a product. [40]   These costs would ultimately be reflected in the price of psychoactive products, which may create a black market in illegitimate psychoactive products.

While the New Zealand pre-market assessment scheme has undoubtedly been successful in reducing the availability of psychoactive substances, this must be considered in the context of the recent withdrawal from sale of all psychoactive substances in New Zealand on health grounds. [41]

Further, similar reductions of the physical sale of NPS followed the introduction of a comprehensive ban on psychoactive substances in Ireland in August 2010.  Between May and October 2010, the number of ‘head shops’ selling NPS went from 113 to none, with only ten head shops remaining open. [42]   The « use » of NPS also appears to have decreased following the introduction of the Criminal Justice (Psychoactive Substances) Act 2010 , evidenced by a reduction in the number of adverse events between 2010 and « 2011 » . [43]

If 100% of NPS users were displaced into using other, more established illicit drugs, there would be no net positive benefit from the ban on NPS.    Established illicit drugs have been banned because they have been assessed as carrying the potential for serious harm to the user and to society.  However, 100% displacement to other illicit drugs is unlikely.  It is understood that some people « use » NPS due to their purported legality and ease of purchase or, for example, to evade workplace drug tests.   Given their reasons for using NPS, it is reasonable to assume that these people would not move onto using more established illicit drugs. 

In addition, health workers, particularly in emergency departments, have significant experience in dealing with these better researched drugs, their hallmarks and side effects.  Reducing the range of substances that confront front-line health workers would assist in avoiding circumstances, like those involved in reported cases, where hospital staff are hampered in their ability to treat adverse reactions to NPS by a lack of available knowledge about the active ingredients of particular illicit drugs or appropriate responses to them. [44]

Further, as set out above, increased seizures of NPS at the border will improve law enforcement knowledge of the substances available on the NPS and illicit drug market.  This additional knowledge will assist in improving health outcomes for persons who suffer adverse effects as a result of taking NPS.  It will likely reduce the number of NPS that law enforcement and health officials first encounter as a result of overdoses and other adverse health effects.

Compliance costs

AGD expects that this measure will have a minimal impact on compliance costs.  

At the outset, AGD notes that regulating the importation of chemical substances is quite complex.  There are few, if any, substances the importation of which is not governed by a series of standards, such as those under the FSANZ Act, or subject to authorisation or listing, such as under the TG Act.  This proposal will not change the requirements of those regulatory regimes, or make the process of importing chemicals more complex for legitimate businesses.  It will also not affect the importation of substances that are specifically exempt from the requirements of those regulatory regimes (see below).

Currently, the ACBPS detains at the border substances it suspects may be illicit drugs while it assesses whether or not they should be seized.  In making this assessment, the ACBPS will test the substance and correspond with both the importer and relevant regulatory authorities.  Goods may be detained for a period of time while the ACBPS makes this assessment.

There are four possible outcomes from this process:

  1. The ACBPS establishes that the substance is an illicit drug (whether under the Criminal Code or Prohibited Imports Regulations) based on its chemical structure.  The ACBPS refers the substance to the AFP for further investigation and, potentially, prosecution.
  2. The ACBPS establishes that the substance has a legitimate « use » because it falls within the regulatory scope of an existing regime (such as under the TG Act, FSANZ Act, ICNA Act or the AgVet Code).   The ACBPS refers the substance to the relevant regulatory body to establish whether the importer has the appropriate authorisations or permissions to import it.  If the importer has the appropriate authorisations or permissions to import the substance (or if authorisation or permission is not necessary), the ACBPS will allow its importation.
  3. The ACBPS establishes that the substance has a legitimate « use » because it falls within the regulatory scope of an existing regime.   If the relevant regulatory body confirms that the importer does not have the appropriate authorisations or permissions to import the substance, the regulatory body may direct the ACBPS to seize the goods on its behalf.
  4. The ACBPS cannot establish that the substance is an illicit drug or that it is subject to an existing regulatory scheme.  In this case, the ACBPS must release the substance.

The proposed measure would only affect the fourth category of goods.  Under the proposed measure, if the ACBPS cannot establish that the substance is an illicit drug or is subject to an existing regulatory scheme, it will be able to seize the substance if it reasonably believes the substance is psychoactive.  Once the ACBPS has seized the goods, the importer will have an opportunity to dispute the seizure.

The ACBPS will not detain additional substances for further investigation under the proposed measure.  Rather, officers will only be able to « use » the new powers to formally seize substances they already detain on suspicion that they are illicit drugs.

Preliminary data from the ACBPS indicates that the measure is likely to affect about 1,000 importations each year, whether in cargo, in the post or on a person.  This is an extremely small number in the context of the tens of millions of inspections that the ACBPS undertakes each year.  For example, in 2012/13, the ACBPS inspected over 100,000 units of sea cargo, 1.5 million units of air cargo, 15.5 million letters, 30 million parcels, 31.5 million air passengers, 715,000 cruise ship passengers and 550,000 crew members of commercial ships.

Enforcement costs to business and individuals

The measure will involve some enforcement costs to business and individuals.  These will arise once the ACBPS seizes the substance on suspicion that it is psychoactive.

However, the measure will not itself directly impose additional regulatory costs on importers.  Rather, it will require importers who dispute the seizure of their goods to provide evidence about those goods (such as their intended purpose).  Where that evidence shows a legitimate purpose, the substance will be dealt with in accordance with the applicable regime.

As noted above, the ACBPS will not detain additional shipments under the measure.  Therefore the measure will not impose additional costs on importers whose goods the ACBPS has detained on suspicion of being an illicit drug, at least until the ACBPS makes the decision to formally seize the substance.

There is only a small possibility that ACBPS officers will seize substances with a legitimate « use » , if at all, as the ACBPS will liaise with importers to determine the intended « use » of a substance following its detention.   In the event that the ACBPS does seize such a substance, the measure will include appropriate oversight mechanisms to allow an importer to dispute the seizure of goods.  Importers engaging with these mechanisms will incur some regulatory costs.  However, these costs will be attributable to existing regulatory schemes, as explained in more detail below.

The costs involved will include:

·          the time a business takes to write letters or fill out forms disputing the seizure

·          gathering evidence and preparing reasons to establish that a substance has a legitimate « use » and should be dealt with under the appropriate scheme

·          the time a business takes to gather that evidence and prepare those reasons for submission to the ACBPS, and

·          the delay flowing from the ACBPS’s seizure of the goods.

Disputes over the seizure of a substance will generally only involve questions of whether or not the substance had a legitimate « use » .   That is, importers will « use » the review process to provide evidence to demonstrate that the substance should have been dealt with under some other regulatory scheme (which may or may not allow it to be imported).   Any importer who demonstrates this may be in breach of the regulatory requirements of that other scheme (which may, for example, impose a requirement to label the goods in a particular way, or to have them registered).

The relevant information and evidence to be provided to the ACBPS to dispute the seizure would be routinely held by businesses, not-for-profit entities and individuals.  Evidence of business operations, sale or « end » « use » could be used to satisfy the ACBPS that the substance was being imported for a legitimate purpose (that is, under an existing regulatory scheme).

The measure will therefore improve compliance with existing regulatory regimes.  It will prompt importers to comply with schemes with which they should already have been complying.  This may require some importers to incur costs in registering to import their goods under those regimes, and in having their goods tested and assessed to ensure that they comply with relevant standards.  However, the measure will not require importers to incur costs additional to those they should have incurred in complying with those existing schemes.  The costs involved in improved compliance are therefore business-as-usual costs.

If an importer successfully disputes the seizure of the substance, then the substance will be referred to the appropriate regulatory body for consideration.  It may or may not be able to be imported, depending on whether it has actually been imported in accordance with the relevant scheme.  For example, it may be that the importer demonstrates the substance is an industrial chemical as a result of the review, based on evidence not available at the time of the seizure.  The importer would then have to comply with the relevant requirements under the ICNA Act in order to be able to import the substance.  This includes registration as an introducer with the National Industrial Chemicals Notification and Assessment Scheme and listing of the substance on the Australian Inventory of Chemical substances.

If the importer unsuccessfully disputes the seizure, then it will incur no further regulatory costs.  The importation is deemed to be unlawful and the substance will be destroyed.

Similarly, there will be no regulatory cost for the importer if the ACBPS seizes a substance and the importer does not dispute the seizure.  The importation is unlawful and the substance will be destroyed.

The proposed measure will include the ability to exclude additional substances with a legitimate « use » by regulation.   AGD does not anticipate that the process for creating such regulations will have regulatory impacts upon businesses or individuals.  This is because of the breadth of coverage of the TG Act, FSANZ Act, Imported Food Act, ICNA Act, Agricultural and Veterinary Chemicals (Administration) Act 1992 and AgVet Code, and the provisions under those Acts that allow for the importation of substances for medical, research and other purposes.  Taken together, AGD does not anticipate that there will be circumstances where legitimate industry will require access to substances that are not initially covered under one of those Acts and which would otherwise fall within the terms of the proposed measure.  The regulation making power is intended to more simply accommodate unanticipated changes to the regulation of the importation of chemical substances (for example, if Government decides to impose a specific regulatory scheme on a subset of foods or therapeutic goods, or if it changes the regulatory scope of the National Industrial Chemicals Notification and Assessment Scheme).

Importation of food for personal consumption

Under the Imported Food Act, the Department of Agriculture does not examine small importations of food for personal consumption for compliance with food standards.  Under this exemption, a person can import up to 10kg of food for personal consumption.

An import ban would not affect the ability of a person to import food for personal consumption, exempt from examination by the Department of Agriculture.

However, it is important to note that such food is still subject to other screening processes, including by ACBPS and the Australian Quarantine and Inspection Service (AQIS).  ACBPS may examine the food to ensure that it does not contain illicit drugs or other prohibited items.   As explained above, currently, where ACBPS suspects that goods, including foods, contain an illicit drug, it will detain them and investigate further.  This process is separate from the examination by the Department of Agriculture for compliance with relevant standards, and may occur even if the food is exempt from such an examination.  If the food contains an illicit drug, the ACBPS will seize it.  If it does not, and it meets the requirements for the personal « use » exemption in the Imported Food Act, then it will be passed to AQIS, to ensure that it complies with relevant quarantine requirements.

As outlined above, under the proposed import ban, an ACBPS officer will be able to formally seize a substance that he or she would have released under the current arrangements, where he or she has a reasonable suspicion that the substance is psychoactive and that it does not have a legitimate « use » .   A person whose goods have been detained may therefore need to provide additional information to demonstrate to ACBPS that the goods are a food and that they are being imported for personal consumption so that they can be released.  This information could include an explanation of the purpose for the importation (eg. where the food cannot be obtained in Australia), the reasons why he or she requires the food for personal consumption (eg. if he or she has particular dietary requirements) or other information about the food itself (for example, its ingredients or history of consumption).  This is information that the person would be required to provide under current arrangements, whether to demonstrate that the food was exempt from Department of Agriculture examination (for example, because it is imported for personal consumption) or to comply with quarantine requirements.

Consultation outcomes

Consultation did not reveal any additional compliance costs.  The Plastics and Chemical Industries Association (PACIA) noted the regulatory burden its members faced in importing chemicals and highlighted the importance of ensuring that the importation of chemicals with a legitimate « use » is not unduly delayed.   It noted that the consultation RIS ‘recognises the costs and burdens to industry of regulation and appears to provide an option that would minimise this, yet obtain the control required.’ [45]

Criminal justice impacts

Under the ban, it would be a criminal offence for a person to import a psychoactive substance that was otherwise unregulated.  As with all criminal offences, the ban would have criminal justice impacts on individuals and businesses, border protection and law enforcement agencies and prosecution services and corrective services operators.

If a person or business does attempt to contravene the law, the ban may have significant impacts upon them.  The person or business would be charged with an offence and prosecuted.  They may incur legal fees in defending those charges.  If they were found guilty of having committed the offence, the person or business may be given a fine, or the person sent to prison for a period of time.

Prosecution of a person will result in an increased workload for border protection and law enforcement agencies, who will investigate the alleged offence, and prosecutions services.  Similarly, if a person is convicted of an offence and sent to prison, this will result in increased costs for corrective services operators.

These impacts should not be overstated.  The primary purpose of the measure is precautionary, to stop as many NPS from entering the country as possible.  However, criminal offences are necessary to give effect to the ban, and the Commonwealth will investigate and, where appropriate, prosecute individuals and companies importing substances in contravention of the ban.

Some factors will reduce the criminal justice impacts of the ban.  First, as noted above, AGD does not expect that the ban will affect a large number of substances or importations.  Further, AGD expects that the number of attempted imports of these substances will reduce.  The ban will be a definitive statement that NPS are not legal.  Importers will no longer be able to attempt to avoid illicit drug controls by tweaking the structure of NPS and there may be a reduction in the number of attempts to import these substances.  Reduced importations of NPS will correspondingly reduce the number of potential investigations, charges, prosecutions and convictions for contraventions of the offence.

AGD also anticipates that the ban will have only a limited impact on the workload of border protection agencies.  The ACBPS already detains NPS at the border on suspicion of being illicit drugs.  The ban will clarify its power to seize these substances.

In these circumstances, the criminal justice impacts of the ban on individuals, businesses and governments will be minor.

Ability to circumvent the ban

AGD considers that it is possible that importers would attempt to circumvent an import ban on NPS by, for example, hiding NPS in legitimate goods.  Successfully circumventing the ban would reduce its practical effect.

In the absence of comprehensive and reliable data about demand for, and « use » of, NPS, it is not possible to make an assessment of the number of people who may continue to desire NPS even after they have been banned.   It is therefore not possible to estimate the number of people who will attempt to import NPS by hiding these substances in legitimate goods.  However, based on experience with respect to other illicit drugs, it must be assumed that at least some people will attempt to circumvent the ban.

For a number of reasons, the impact of attempts to circumvent the ban are likely to be very low.  First, the ACBPS and the AFP have significant experience in finding goods that hide illicit commodities, including illicit drugs.  These officers will « use » similar skills, expertise and information to stop and seize suspicious substances, even where they may appear to be a legitimate good.   Secondly, as outlined previously, AGD expects that clarifying that NPS are illegal is likely to reduce demand for them.  Reduced demand will similarly reduce the number of people who will attempt to circumvent the ban.

Finally, AGD notes that complementary State and Territory measures will be important in ensuring that, even if a person does successfully import an NPS, it cannot legally be sold, supplied or advertised.  This will improve the effectiveness of the ban: NPS that are hidden in a product with a legitimate « use » cannot later be legally converted and sold as an alternative to an illicit drug.

Effect of the ban

Overall, the lack of definite and reliable evidence about the « use » of NPS and their health effects means that it is not possible to assess the overall net benefit of an import ban by weighing its costs and benefits.   However, AGD considers that it is likely to result in some supply- and demand-side impacts by curtailing the distribution of NPS and by clearly reinforcing public awareness of the potential health risks associated with their « use » .   These impacts will likely assist in reducing availability and consumption of NPS and reducing the number of people who die or are seriously injured as a result of consuming them.

It also seems clear that there will be some costs associated with an import ban.  These include impacts upon:

·          individuals who « use » or supply NPS

·          businesses which profit from the distribution, wholesale or retail sale of NPS

·          individuals and businesses which may now need to demonstrate the legitimate purpose of a substance they wish to import, and

·          border protection and law enforcement agencies, prosecution services and corrective services operators which may have small increases in workloads.

To the extent it is possible to weigh these costs and benefits, AGD notes that limited information to quantify the health and other impacts of the ban is not, in itself, a complete argument against imposing it.  As outlined above, this limited data must be considered in light of:

·          recent reports about deaths and serious harm following NPS consumption

·          evidence from New Zealand about ongoing harm from the consumption of psychoactive products

·          the potential for unknown, untested but toxic substances to be supplied for human consumption, and

·          AGD’s experience that NPS are typically listed as illicit drugs once information about their harms and effects becomes available.

While it is not possible to state that an import ban has a net benefit, AGD considers that it is unacceptable for businesses and individuals to continue to profit from the sale of substances that, while largely unknown, have been frequently linked with death and serious injury.  The evolving nature of the NPS market, and the fact that the ACC has assessed it as having the potential for growth, [46] suggests that a precautionary approach may be justified and would assist in preventing the further growth of the market.   In this context, AGD considers that an import ban is likely have a benefit, though it is not possible to quantify this. 

Regulatory Burden and Cost Offset (RBCO) Estimate

Any regulatory costs that the ban on the importation of NPS will impose on businesses, not-for-profit entities or individuals are excluded from the RBCO calculation.  Consultation did not reveal any additional regulatory costs that should be included in the RBCO calculation.

As noted above, the measure will not increase the number of goods or substances that the ACBPS detains at the border on suspicion of being an illicit drug.  It will only allow the ACBPS to seize those substances that it reasonably suspects are psychoactive.  The measure will not, therefore, increase the regulatory burden on businesses, not-for-profit entities or individuals who import goods in compliance with existing regulatory regimes.

The regulatory costs involved in disputing a seizure will fall outside the RBCO. To be successful in disputing the seizure, the importer will have to show that the substance in fact had a legitimate « use » and was regulated under another scheme.   In this case, the regulatory costs involved will be the business-as-usual costs involved in complying with that scheme.  These are excluded from calculation.

If the importer is unsuccessful in disputing the seizure, the regulatory costs involved will be costs of non-compliance with the ban on the importation of psychoactive substances.  These are also excluded from calculation.

Importers will not be required to fill out any documentation in order to comply with the import ban.  However, they may be required to fill out forms in order to comply with existing regulatory regimes.  Again, these costs are excluded from calculation.

Regulatory Burden and Cost Offset (RBCO) Estimate Table

Average Annual Compliance Costs (from Business as usual)

 

Costs ($m)

Business

Community Organisations

Individuals

Total Cost

Total by Sector

$0

$0

$0

$0

 

Cost offset ($m)

Business

Community Organisations

Individuals

Total by Source

Agency

$0

$0

$0

$0

Within portfolio

$0

$0

$0

$0

Outside portfolio

$0

$0

$0

$0

Total by Sector

$0

$0

$0

$0

 

Proposal is cost neutral?    yes     no

Proposal is deregulatory    yes      no

Balance of cost offsets     $0



Consultation

AGD has consulted extensively throughout government in developing the measure, including with Health and the ACBPS.  It has also consulted with regulatory agencies whose regimes may be affected by the proposed import ban.

AGD issued a version of this RIS for public consultation on 6 May 2014. AGD sent the RIS to specific stakeholders and placed the RIS on its website.  Comments were open until 16 May 2014, though AGD considered comments received until 22 May 2014. 

AGD received six submissions in response to the RIS.  Three submissions broadly supported the introduction of an import ban. [47]   The other three submissions broadly supported the investigation of a pre-market assessment scheme. [48]   AGD thanks the individuals and organisations who made submissions on the RIS for their detailed and considered comments.

PACIA noted the importance of ensuring that the import ban would not unduly delay the importation of substances with a legitimate « use » . [49]   The Pharmacy Guild of Australia also noted that cannabinoids for « use » in medical research and treatment should be excluded from the ban. [50]

As set out above, AGD will ensure that the ban does not affect substances which are currently able to be imported in accordance with existing regulatory schemes.    It will also not prevent new substances, or substances with new uses, from being assessed and imported in accordance with those schemes.

Submissions in favour of a pre-market assessment scheme focussed on the perceived failure of policies that prohibited drugs at Commonwealth, State, Territory and international levels. [51]   They criticised the proposed import ban on the basis that it continued these policies and was unlikely to succeed in reducing the health impact of NPS. [52]   In essence, they argued that the proposed ban would drive NPS « use » underground.

As set out above, AGD acknowledges that there is some potential for an import ban to displace users into purchasing psychoactive substances (whether NPS or more established illicit drugs) on the black market.  However, the import ban will also carry a number of disincentives for people to purchase NPS in the first place.  It will ensure that these substances cannot be presented as legal, with the implication that they have been assessed as low risk.  The ban will also improve ACBPS officers’ ability to seize these substances at the border and prevent their entry into the country.  Further, the prospect of prosecution and criminal penalties will discourage casual users from attempting to purchase and import NPS.

These submitters also noted that the risk of harm involved in a range of legal activities, including drinking alcohol, smoking tobacco and racing cars, was well known but that they were permitted, with certain restrictions. [53]   They noted that the harms of NPS were not well known, and that the RIS did not contain significant information about them. [54]   Consequently, these submissions argued that there was insufficient evidence to justify imposing an import ban on NPS, and their sale, manufacture and importation should be regulated. [55]

As set out above, AGD acknowledges that data on the scale of the NPS problem is limited.  In part, this is because of the very nature of NPS: by definition they are new and uncontrolled.  That there is limited data is not of itself a reason to pursue one approach or another, particularly where there have been a number of reports of deaths and significant harm following NPS « use » .   In this regard, AGD notes that the RIS considers the impact of a number of policies on reducing the potential harms from a diverse and rapidly expanding range of substances that are imported for human consumption and which are often unknown, untested and pharmacologically potent.  The RIS does not seek to revisit and justify the current approach to illicit drugs.  

Conclusion

While NPS are not currently as great a societal or public health problem as other illicit drugs, the problems posed by the importation, sale and distribution of unknown chemical compounds which masquerade as illicit drugs are not insignificant.  There is clear potential for the NPS market to grow, [56] which would only exacerbate existing public health issues. 

AGD considers that there are good reasons for the Government to take precautionary action to tackle NPS and prevent the market from growing, as governments have done in a number of other countries.  While AGD acknowledges the lack of comprehensive data about the potential effects and benefits of an import ban on psychoactive substances without a legitimate « use » , it considers that such a ban is likely to be effective in reducing the public health impacts of NPS.

However, principle 1 of the Australian Government’s Guide to Regulation (Guide) requires policy makers to recommend the option with the greatest demonstrated net benefit.

AGD anticipates that introducing legislation banning the importation of otherwise unregulated psychoactive substances will have a direct impact on the ability of retailers to source and supply NPS.  AGD notes that this import ban is not intended to replace existing mechanisms to progressively ban dangerous substances under the Criminal Code.  It will supplement those mechanisms by allowing authorities time to assess the risk posed by new substances as they appear, without those substances being readily available for purchase and consumption.  However, in the absence of comprehensive data about the likely health benefits, potential displacement effects and impacts on businesses, community organisations and users, AGD is unable to demonstrate, to the level required by the Guide, that this option has a net benefit.  Similarly, it cannot demonstrate the overall net benefit of exploring a pre-market assessment scheme.  While a pre-market assessment scheme may ultimately reduce some of the harm associated with NPS « use » , it is contrary to the Government’s approach to NPS.   The process for exploring the scheme further, setting it up and implementing a new regulatory regime would also be extremely lengthy.  During this time, the status quo would continue.  Untested and unsafe products will continue to be presented as legal alternatives to illicit drugs and they will continue to cause harm to individuals and the community.  AGD therefore remains of the view that exploring such a scheme would not be a viable option. 

Further, options of an education campaign about the dangers of NPS or continuing the current practice of banning substances based on their chemical structure are unlikely to be, on their own, sufficiently effective in reducing the health impacts of NPS. 

In these circumstances, AGD is unable to demonstrate, to the standard required by the Guide, that any of the options explored above has the greatest net benefit.   In such a situation, the Guide requires that no recommendation be made for regulatory change.

Notwithstanding that no recommendation for regulatory change can be made in accordance with the Guide, the Government may still choose to intervene to reduce NPS « use » by imposing a ban on their importation.  

An import ban on psychoactive substances without a legitimate « use » is likely to be a small but important step in reducing the number of people who are harmed, directly or indirectly, from using unsafe, untested and dangerous substances which masquerade as legal or legitimate alternatives to listed illicit drugs.   As the active ingredients for the substances are imported into Australia from manufacturers overseas, an import ban is a vital part of preventing their sale and distribution, allowing ACBPS officers to seize them at the border and to prosecute offenders where appropriate.

Banning the importation of psychoactive substances without a legitimate « use » will also send a message about the dangers associated with their « use » .   That these compounds are currently being sold, over the internet and from domestic businesses, as ‘legal’ alternatives to listed illicit drugs suggests that they are somehow safe, even where their potential harms are completely unknown, or where the media has reported the death or serious injury associated with taking them.  This representation has the potential to cause, and has in fact caused, great harm to members of the public who purchase NPS in the belief that ‘legality’ implies the substance has been tested and assessed as safe and appropriate for sale.

While there is limited data to quantify the precise health benefits that would flow from an import ban, AGD considers that the probable benefits flowing from reduced supply and consumption of NPS would be likely to outweigh the commercial interests of businesses which sell these substances.  As noted above, NPS currently exist at the fringes of legality.  Their consumption has been linked to deaths and serious injury.  They mimic the effects of illicit drugs but have been designed to get around existing controls on those drugs.  Several NPS, such as 4-methylmethcathinone, benzylpiperazine and a range of synthetic cannabinoids, have been prohibited under the Criminal Code and SUSMP as evidence about the harms and dangers associated with their « use » became available.  

The ban will also enhance the Commonwealth’s ability to list new, harmful substances as they emerge.  It will clarify ACBPS officers’ ability to seize substances they suspect are illicit drugs, improving law enforcement and health agencies’ understanding of the NPS market, their ability to assess the harms associated with the « use » of specific substances and the Commonwealth’s ability to institute appropriate controls on those substances.   Improved information about NPS will also assist in the review of the outcomes and effectiveness of the measure.  AGD and the ACBPS propose to conduct this review after two years of the operation of the import ban.  Further detail is set out below in the implementation section of the RIS.

While banning the importation of NPS into Australia is one part of reducing the health effects associated with their « use » , it is not a complete answer to the challenges posed by NPS.   It is unlikely that a ban would be fully effective in reducing supply unless it is accompanied by complementary measures from States and Territories to ban the manufacture, supply and advertisement of NPS.  New South Wales, Queensland and South Australia have all recently implemented such bans.  It will also require concerted and coordinated effort from health and law enforcement agencies across the Commonwealth and States and Territories to implement effective measures to reduce both supply and demand for these substances. 

Implementation, decision making and review

Should Government choose to continue the status quo there would be no implementation requirements.

Should Government consider it be appropriate to intervene to reduce NPS « use » and implement the measure to ban the importation of NPS, this would require legislative and administrative change.

The ACBPS would be required to implement appropriate administrative procedures to ensure that the import ban functions as intended.  It will liaise with its partners at the border, including the AFP and regulatory agencies, to develop and implement guidelines and training about the import ban.  These guidelines and training will ensure that officers only seize appropriate substances and do not disrupt legitimate trade flows.

If the ban is implemented, AGD and ACBPS would review its operation after two years.  This review would consider the effectiveness of the ban and its impact on the importation of substances for legitimate purposes, including whether the ban is appropriately targeted and the adequacy of the exemption categories and review mechanisms. 

 




[1] UN Human Rights Committee (HRC), CCPR General Comment No. 6: Article 6 (Right to Life) , 30 April 1982, para 3.

[2] Australian Crime Commission, Illicit Drug Data Report 2012 - 2013 (Australian Crime Commission, 2014) (‘2012 - 2013 IDDR’), page 154.

[3] United Nations Convention against Illicit Traffic of Narcotic Drugs and Psychotropic Substances 1998, Single Convention on Narcotic Drugs 1961 and Convention on Psychotropic Substances 1971.

[4] Committee on the Rights of the Child, General Comment No.4: Adolescent health and development in the context of the Convention on the Rights of the Child, (UN Doc No CRC/GC/2003/4, 2003), para 25.

[5] Damon Barrett and Philip E. Veerman, A Commentary on the United Nations Convention on the Rights of the Child - Article 33: Protection from Narcotic Drugs and Psychotropic Substances (Koniklijke Brill NV, 2012), para 96.

[6] 2012 - 2013 IDDR, page 157.

[7] Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act « 2011 » , Seventh Report of 2012, para 1.84.

[8] 2012-13 IDDR, pages 155 and 157.

[9] Toonen v Australia , CCPR/C/50/D/488/1992, UN Human Rights Committee (HRC), 4 April 1994.

[10] Paragraph 59 of the explanatory memorandum to the International Transfer of Prisoners Act 1997 states that: ‘Subclause [20](3) provides that the [Minister for Justice] is to determine whether or not consent should be given to the transfer on the terms proposed and is to notify the transfer country accordingly.   The subclause also recognises that the [Minister for Justice] may inform the transfer country that consent will be given if that country agrees to a variation of the terms.’ [ emphasis added ]

[11] United Nations Global SMART Programme, The challenge of new psychoactive substances < http://www.unodc.org/documents/scientific/NPS_Report.pdf > 3-18, UK Advisory Council on Drugs, Novel psychoactive substances report ( « 2011 » )   < https://www.gov.uk/government/publications/novel-psychoactive-substances-report- « 2011 » > 49-61.

[12] Australian Crime Commission, Illicit Drug Data Report 2012-13 p 154.

[13] NSW State Coroner, Finding after an inquest into the death of Glenn Punch , 29 October 2013, < http://www.coroners.lawlink.nsw.gov.au/agdbasev7wr/_assets/coroners/m401601l7/glenn%20punch%20finding%2029%20oct%202013.pdf >.  Alpha-PVP has also been specifically listed as an illicit drug under the Commonwealth Criminal Code .

[14] Australian Crime Commission, Illicit Drug Data Report 2012-13 , p 158.

[15] House of Commons Home Affairs Committee, Drugs: new psychoactive substances and prescription drugs , Twelfth Report of Session 2013-14 < http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/819/81902.htm > 6.

[16]   http://www.emcdda.europa.eu/attachements.cfm/att_190854_EN_TDAC12001ENC_.pdf, 89

[17] UNODC World Drug Report 91,92.

[18] Australian Crime Commission, Illicit Drug Data Report 2012-13 , p 158.

[19] R Olding, ‘Lawyer kept 'bath salts' ingredient secret as Glenn Punch was dying’, Sydney Morning Herald ,10 October 2013, viewed 5 May 2014, .

[20] Australian Crime Commission, Illicit Drug Data Report 2012-13 , p 159.

[21] Australian Crime Commission, Illicit Drug Data Report 2012-13 , p 157.

[22] Australian Crime Commission, Illicit Drug Data Report 2012-13 , p 159.

[23] Crimes Legislation « Amendment » (Serious Drugs, Identity Crime and Other Measures) Act 2012.

[24] United Nations Office of Drugs and Crime, World Drug Report 2013 , p 59.

[25] United Nations Office of Drugs and Crime Global SMART Programme, The challenge of new psychoactive substances , 2013, pp 1-2.

[26] Note: the phrase ‘legitimate « use » ’ is used in this paper to refer to a « use » authorised under one of these schemes.

[27] NZ Ministry of Health, Psychoactive Substances Regulation , Wellington, 2014, viewed 26 April 2014, .

[28] Eros Association, Breaking Bad: a reply to the Regulation Impact Statement on banning the importation of substances which mimic the effects of illicit drugs , 2014, p. 8.

[29] Eros Association submission, p. 8.

[30] Research conducted for the development of the NDC has consistently highlighted that a lack of knowledge about the content and source of illicit drugs is a key concern amongst young people.  Further, research conducted among people who take illicit drugs has shown that they are concerned about the range of substances found in drugs, and this can influence their decisions about consumption.

[31] Australian Drug Law Reform Foundation (ADLRF), Submission in response to a discussion paper: Regulation Impact Statement: Banning the importation of substances which mimic the effects of illicit drugs , 2014, p. 5.

[32] ADLRF submission, p. 5; Eros submission, p. 11.

[33] ADLRF submission, p. 2.

[34] Eros Association submission, p. 5.

[35] Uncertainty about the ability to import NPS was highlighted as a concern in the letter from an NPS distributor attached to the Eros Association submission (see p. 21).

[36] Recent studies have shown that many users of more established illicit drugs  also « use » NPS.   For example, the Ecstasy and Related Drugs Reporting System found that, in 2013, 37% of participating users had used an NPS in the last six months: National Drug and Alcohol Research Centre, Australian Drug Trends 2013: Findings from the ecstasy and related drugs reporting system , 2013, accessed 5 May 2014, .

[37] ADLRF submission, p. 3.

[38] Eros Association submission, p. 2.

[39] ADLRF, p. 4.

[40] The New Zealand Government has estimated that testing could cost between NZ$1 million and NZ$2 million per product (see NZ Ministry of Health, Regulatory Impact Statement: New regulatory regime for psychoactive substances , p. 11, viewed 26 May 2014, .

[41] NZ Ministry of Health, above, note 13.

[42] Irish Health Research Board, Press release: New report reveals the latest drug trends across Europe , 15 November « 2011 , accessed 27 May 2014 < http://www.hrb.ie/home/media/press-release/?tx_ttnews%5Bpointer%5D=1&tx_ttnews%5Btt_news%5D=425&tx_ttnews%5BbackPid%5D=566&cHash=cfe996a3e9295c7e7efcc5075567a806 >..

[43] Irish Health Research Board, Press release: New report reveals the latest drug trends across Europe , 28 May 2013, accessed 27 May 2014 < http://www.hrb.ie/home/media/press-release/?tx_ttnews%5Btt_news%5D=445&tx_ttnews%5BbackPid%5D=566&cHash=0e918ab287092b7649a3bae7080fff27 >.

[44] R Olding, ‘Lawyer kept 'bath salts' ingredient secret as Glenn Punch was dying’, Sydney Morning Herald ,10 October 2013, viewed 5 May 2014, .

[45] Plastics and Chemical Industries Association (PACIA), Submission on New Psychoactive Substances Consultation Draft Regulation Statement , 2014.

[46] Australian Crime Commission, Illicit Drug Data Report 2012-13 , p 157, 158.

[47] Those from PACIA, the Pharmacy Guild of Australia and the Happy Herb Company.

[48] Those from ADLRF, the Eros Association and Name Withheld.

[49] PACIA submission.

[50] Pharmacy Guild of Australia, New Psychoactive Substances: Consultation Draft Regulation Impact Statement - Guild Response , 2014.

[51] ADLRF submission, p. 2; Eros Association, p. 1; Name Withheld, Comment on Regulation Impact Statement: banning the importation of substances which mimic the effects of illicit drugs , 2014.

[52] ADLRF submission, pp. 2-5; p. 9.

[53] ADLRF submission, p. 3; Eros Association submission, p. 12; Name Withheld.

[54] ADLRF submission, p. 2; Eros Association submission, p. 12.

[55] ADLRF submission, pp. 2-5; Eros Association submission, pp. 12-13.

[56] Australian Crime Commission, Illicit Drug Data Report 2012-13 , p 157, 158.